Justice

American Schools Are More Segregated Now Than They Were In 1968, And The Supreme Court Doesn’t Care

CREDIT: AP Photo/Rudolph Faircloth

Over the past two weeks, This American Life ran a two part series on the resegregation of American public schools. It is excellent and you should go listen to it here and here.

The centerpiece of the first part is a town hall meeting in a predominantly white Missouri school district. White residents had just learned that students from the mostly black district that includes Ferguson, Missouri would be joining their own children due to a law giving students in failing school systems the opportunity to attend classes elsewhere — and these white parents were pissed. One mother demanded metal detectors and drug sniffing dogs, because she falsely believed that the black district was struggling because of a record of “violent behavior.” “I shopped for a school district!” she proclaimed as the crowd of white parents erupted around her in cheers, “I deserve to not have to worry about my children getting stabbed, or taking a drug, or getting robbed.”

Another parent recalled, again to an approving crowd, a time when the mostly white community blocked plans to build public transit connecting them to other, nearby communities because “we don’t want the different areas . . . coming across on our side of the bridge bringing with it everything we’re fighting today against.”

This meeting took place in 2013, but it follows a legacy of white resistance to public school integration. Arkansas Gov. Orval Faubus infamously called out the National Guard to keep nine African American students from integrating Little Rock High School. In a Detroit suburb, Ku Klux Klansmen blew up ten school buses to prevent them from being used to bring black and white students together to attend the same school. In South Boston, white residents hurled bricks through the windows of school buses carrying black students while police in riot gear tried to maintain order.

Opponents of integration — or, at least, parents whose support for integration is tempered by NIMBYism — are winning, and they’ve been winning for a very long time. The percentage of African American students attending majority white schools has been in decline since 1988, and it is now at its lowest point in almost half-a-century:

school-segregation-chart-

In our national mythology about public school segregation, the Supreme Court holds a place of honor. “Separate educational facilities are inherently unequal,” Chief Justice Earl Warren wrote in the unanimous Brown v. Board of Education decision. And that decision is now almost universally celebrated as the high point of the Court’s moral authority.

The reality, however, is that desegregation did not begin in earnest until a decade after Brown, and the Supreme Court started putting limits on integration a decade after that. America’s commitment to public school integration as a serious project was surprisingly brief, and it ended with the blessing of the same institution that handed down Brown.

Massive Resistance

As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the first ten years of Brown were either a testament to the Supreme Court’s inability to desegregate public schools on its own, or a testament to its unwillingness to do so.

One year after Brown, the justices handed down another unanimous decision in the same case holding that desegregation would only need to proceed “with all deliberate speed.” Brown II also left local federal district judges, many of whom owed their jobs to segregationist Southern senators, to supervise desegregation.

Even when judges were willing to integrate schools, moreover, white racists had another tactic they could deploy to protect Jim Crow: terrorism. Courts could only act if a black family brought a lawsuit challenging their local school district’s segregationist practices, but few families dared to do so with the threat of Klan violence looming over them. The first case seeking to integrate a Mississippi grade school was not filed until 1963.

Five years after Brown, only 40 of North Carolina’s 300,000 African American students attended integrated schools. Similarly, only 42 of Nashville’s 12,000 black students were in integrated schools in 1960. By Brown‘s tenth anniversary in 1964, only one in eighty-five black students in the South went to school alongside white children.

Then, a decade after the Supreme Court held that separate schools are inherently unequal, President Lyndon Johnson signed the Civil Rights Act of 1964, which contained two provisions allowing the federal government to attack Jim Crow directly. One such provision empowered the Justice Department to file suits against segregated school districts, thus eliminating the need to coax black families terrorized by white supremacist violence into bringing these suits themselves. The second permitted federal officials to cut off federal funds for segregated schools.

A golden age of integration followed shortly after the Civil Rights Act became law. The year that Johnson signed this law, only 2.3 percent of black students attended majority white schools. By 1972, over a third of African American children attended such schools.

Two years later, however, the Supreme Court would begin to rein in this progress.

Enter Richard Nixon

As President Dwight Eisenhower’s vice president, Richard Nixon was a frequent champion of civil rights. By the mid-1960s, however, when the ultraconservative Barry Goldwater started to win over Republican hearts and minds, Nixon began to temper his own rhetoric on race. Though Nixon labeled the Civil Rights Act a “great step forward in the struggle for equality and opportunity for all Americans” in a 1964 speech in Cincinnati, he also appealed to a growing sense of white resentment in the very same speech. “The encouragement of disrespect for the law through mass demonstrations, boycotts, and violation of property rights,” according to Nixon, “harms rather than helps the cause of civil rights.” Such tactics, the future president claimed “destroy the will of the people to obey” the laws civil rights activists supported.

President Nixon’s rhetoric on school segregation followed a similar pattern. Brown, Nixon said in a 1970 statement on school desegregation, “was right in both constitutional and human terms.” Yet he also told the nation that “we must recognize that in a free society there are limits to the amount of Government coercion that can reasonably be used; that in achieving desegregation we must proceed with the least possible disruption of the education of the Nation’s children; and that our children are highly sensitive to conflict, and highly vulnerable to lasting psychic injury.”

This ambivalence towards integration — a willingness to embrace it in theory while simultaneously fearing the disruptions that come from earnest attempts to desegregate schools — animated school segregation opinions joined by Nixon’s four appointees to the Supreme Court. Twenty years after Brown, in 1974, Nixon’s justices provided four of the five votes that formed the majority in Milliken v. Bradley, which limited the tools available to judges charged with integrating unconstitutionally segregated schools.

Milliken concerned Detroit’s public schools, which were segregated in large part due to intentional government actions designed to keep them that way. A federal district court determined that “the Detroit Board of Education created and maintained optional attendance zones” which “had the ‘natural, probable, foreseeable and actual effect’ of allowing white pupils to escape identifiably Negro schools.” Regular attendance zones “had been drawn along north-south boundary lines despite the Detroit Board’s awareness that drawing boundary lines in an east-west direction would result in significantly greater desegregation.” Meanwhile, “the Detroit Board had admittedly bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space.”

White flight from the city proper to its suburbs, however, exacerbated this problem. With more and more whites moving outside the city limits, the district court determined that merely integrating the students who remained within Detroit would not succeed in diversifying many schools. Many schools would remain 75-90 percent black. As a result, the court held that “it was imperative to ‘look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . .’ since ‘[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.'”

This plan, to cross district lines in order to integrate the Detroit metro area’s public schools, was rejected by the Supreme Court in Milliken. Though Chief Justice Warren Burger’s opinion conceded that “an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race,” it denied that such a remedy was appropriate here. “Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere,” Burger wrote, “and on this record the remedy must be limited to that system.”

In effect, this decision validated white flight as a tactic for resisting desegregation. White parents who did not want their children to sit in the same classroom as black students could defeat integration by self-segregating.

“A Temporary Measure”

Despite Miliken, integration continued to advance for more than a decade — hitting its peak in 1988 when nearly 44 percent of African American students attended white-majority schools. By 1991, however, the Supreme Court was dominated by conservatives who demonstrated even more ambivalence towards integration than President Nixon. President Ronald Reagan elevated Justice William Rehnquist, far and away Nixon’s most conservative appointee, to the job of Chief Justice of the United States. He also added three more justices to the Court. Justice William Brennan, the liberal champion whose political skills often enabled him to coax right-leaning justices into temporarily alliances with the Court’s liberal bloc, had recently retired. Justice Thurgood Marshall, the mastermind of Brown, was elderly, infirm and about to leave the Court himself.

Despite his opposition to aggressive desegregation remedies, Nixon’s rhetoric still presented desegregation as part of a centuries-long struggle for equality and justice. “From the outset of the Nation, one of the great struggles in America has been to transform the system of education into one that truly provided equal opportunity for all,” Nixon said in 1970. Adding that, on this issue, “the pull of conscience and the pull of national self-interest both are in the same direction. A system that leaves any segment of its people poorly educated serves the Nation badly; a system that educates all of its people well serves the Nation well.”

In its 1991 decision in Board of Education of Oklahoma City v. Dowell, however, the Supreme Court spoke of Brown and the efforts required to implement that decision as if they were a burdensome guest that had begun to overstay their welcome. “From the very first,” Chief Justice Rehnquist wrote on behalf of himself and four other justices, “federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.”

Like Milliken, Dowell highlighted how school segregation and residential segregation are closely intertwined. In 1965, a federal court rejected Oklahoma City’s “attempt to desegregate by using neighborhood zoning” because “residential segregation resulted in one-race schools.” Moreover, the government had for many years, mandated segregated housing — “Residential segregation had once been state imposed, and it lingered due to discrimination by some realtors and financial institutions.”

By 1977, however, Oklahoma City had complied with a desegregation decree for five years, and the same federal court that deemed its school district unconstitutional segregated determined that “substantial compliance with the constitutional requirements has been achieved.” Accordingly, the court ruled that the school district “is entitled to pursue in good faith its legitimate policies without the continuing constitutional supervision of this Court.”

In 1984, however, the district sought to implement a “Student Reassignment Plan (SRP), which relied on neighborhood assignments for students in grades K-4 beginning in the 1985-1986 school year.” Under this plan, “11 of 64 elementary schools would be greater than 90% black, 22 would be greater than 90% white plus other minorities, and 31 would be racially mixed.” The plaintiffs in Dowell sued to stop this plan.

Though the Supreme Court left open some possibility that these plaintiffs could prevail, Rehnquist’s opinion in Dowell was a devastating blow to advocates seeking to prevent districts that had complied with past integration orders from resegregating. In effect, Dowell established that desegregation orders should be lifted after a period of compliance, and that control of pupil assignments should return to local authorities. Once that happens, those local authorities are free to implement policies that increase racial segregation in public schools, so long as those policies are not implemented for the purpose of fostering segregation. What Rehnquist described as “the important values of local control of public school systems” dominated over the need for racial integration.

Less than a year after Dowell, a federal appeals court considered a similar case involving public schools in Austin. Relying heavily on Dowell, the court concluded that Austin was allowed to implement changes to its own policies.

An eldery Judge John Minor Wisdom, a heroic judge who’d spent years fighting Southern resistance to Brown during his early years on the bench, penned a concurring opinion explaining what this decision would mean. Though Wisdom agreed that he was bound by precedent to uphold Austin’s actions, he noted that prior to 1987, only 6 of Austin’s 64 elementary schools had “an enrollment of 80% or higher of Afro-American and Hispanic students.” After the district implemented new policies in that year, however, this number increased to 20 schools.

Wisdom also noted that “a number of schools identifiable as predominantly Afro-American — Hispanic schools are in need of serious repair,” and he suggested that this failure to maintain schools serving black and Hispanic students could be constitutionally problematic even under precedents that long predated Brown. “Money is short in all school districts,” Wisdom wrote, “but allocating school funds to the detriment of minority schools is unconstitutional under Plessy v. Ferguson.

The Way To Stop Discrimination On The Basis Of Race

In his influential study on the limits of judicial power, The Hollow Hope, Gerald Rosenberg argues that courts are highly constrained in their ability to accomplish social change. Absent factors such as support from lawmakers, executive branch officials and the public, Rosenberg argues, courts’ powers are strictly limited.

The failure of Brown‘s first ten years plays a central role in Rosenberg’s argument, and the fact that judicial support for desegregation began to decline in the wake of Nixon and Reagan’s elections to the White House also grants credence to his claims. Under Chief Justice John Roberts, however, the Supreme Court has done far more than simply echo the ambivalence felt by many of Nixon and Reagan’s supporters. It has actively thwarted public school desegregation even in districts where democratically elected leaders support increased efforts at integration.

In 1998, Seattle’s public schools implemented policy that allowed incoming ninth graders to rank which high school they wished to attend in order of preference. If a particular school was more popular than its maximum enrollment would allow, the district employed “tiebreakers” to determine which student got to attend that school. One of these tiebreakers selected students “whose race ‘will serve to bring the school into balance.'” Thus, for example, if a particular school was overwhelmingly white, and a white and black student both sought to be assigned to that school, the black student had a slightly higher chance of receiving this assignment than the white one.

Louisville’s school system used a similar plan that also gave families the opportunity to select the school that they would like their child to attend. Black enrollment in non-magnet schools, however, was capped at 50 percent of the total student body (about 34 percent of the district’s students were black). Thus, a student may not be assigned to their first choice school if doing so would undermine integration, although elementary school students received their first or second-choice school 95 percent of the time.

The Court’s 2007 decision in Parents Involved v. Seattle School Districtstruck down both plans, albeit by a 5-4 vote — and, if it had been up to Chief Justice Roberts, the Court would have rendered race conscious remedies to the legacy of discrimination virtually impossible. Indeed, to Roberts, there is no difference between Jim Crow school assignments enacted for the purpose of fostering white supremacy and the Seattle and Louisville programs, which were enacted to foster integration. “Before Brown,” Roberts wrote, “schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

“The way to stop discrimination on the basis of race,” Roberts concluded his opinion, “is to stop discriminating on the basis of race.”

Parents Involved did not shut down voluntary integration programs entirely, largely because Justice Anthony Kennedy penned a separate opinion leaving the door open to alternative means of desegregating public schools. Nevertheless, the fact remains that the Supreme Court has moved far beyond the point when it stood up for “the important values of local control of public school systems” that Rehnquist described in Dowell. Even when a local community decides on its own to integrate its public school system, the Roberts Court thinks that it knows better.

Nor is Parents Involved likely to be a stopping point for the justices. Indeed, if one more justice joins the Court who shares the same view as the Roberts plurality, the Court could impose sweeping new limits on the government’s ability to even acknowledge the existence of race.