In 1971, a federal court ordered Jefferson County, Alabama to desegregate its schools. Although that order is still in effect, the residents of a predominantly white city in Jefferson County found a creative way to try to get around it — seceding from the school district altogether.
Fortunately for the predominantly black students who would have been kicked out of their schools by this effort, a federal appeals court stepped in on Tuesday. The court held that no, the city of Gardendale, Alabama cannot simply secede from Jefferson County’s school district to create a district with fewer black kids.
Yet this week’s decision from the United States Court of Appeals for the Eleventh Circuit in Stout v. Jefferson County Board of Education is a bit of a hollow victory.
While the people driving Gardendale’s secession effort were a little too open about their motivations to get away with their plan, three other predominantly white cities within Jefferson County succeeded in their earlier efforts to secede. Thanks in large part to these secession efforts, the racial makeup of Jefferson’s school district diminished from “about 75 percent white and 23 percent black” in 2000, to “approximately 43 percent white and 47 percent black” in 2015.
A school district’s push for segregation
Gardendale’s attempt to secede was triggered by two events that allowed predominantly black students in surrounding areas to attend public schools there. The first was a provision in the 1971 court order permitting “some students to transfer from schools in which their race is in the majority to schools in which their race is in the minority.” The other was the federal No Child Left Behind Act of 2001, which allows students in certain underperforming schools to transfer elsewhere.
As a result, about a quarter of the students in three of Gardendale’s four public schools are black — despite the fact that, in 2010, the city was over 88 percent white.
The secession effort was spearheaded by four Gardendale residents, one of whom eventually became president of the seceded district’s school board, and another of whom became a board member.
The leaders set up a Facebook page where they offered thinly veiled explanations for why they supported secession. “A look around at our community sporting events, our churches are great snapshots of our community,” one of the leaders wrote, according to Tuesday’s court order. “A look into our schools, and you’ll see something totally different.” Another wrote that secession would enable “better control over the geographic composition of the student body [and] protection against the actions of other jurisdictions that might not be in our best interests.”
Often, however, they were less subtle. At a public meeting promoting secession, one of the leaders referred to the nearby town of Center Point, which transformed from an almost entirely white town in 1970 to a predominantly black town in 2010. “It likely will not turn out well for Gardendale if we don’t do this. We don’t want to become what Center Point has become,” the secession leader warned. According to the trial court that heard this case, a flyer distributed by the secession leaders asked Gardendale voters if they would “rather live in an affluent white city or a formerly white city that now is well-integrated or predominantly black.”
That flyer compared four nearby cities which were either integrated or largely black to a list of predominant white communities that “are listed as some of the best places to live in the country.” The flyer also featured a white student.
While the secession plan would have excluded several nearby areas with large African American populations, “the secession leaders touted the predominantly white community of Mount Olive as a desirable area to be included in the new school system,” according to the court.
After the city council voted in favor of the secession effort, the new Gardendale school board hired a superintendent who, despite a 17-year career in education, had “never hired a black teacher, worked with a black teacher, or hired a black administrator.”
This was a bridge too far, even for an especially conservative Eleventh Circuit judge. Judge William Pryor, who wrote the opinion in Stout rejecting Gardendale’s secession effort, was one of a handful of finalists President Trump considered to fill a vacancy on the Supreme Court.
Supreme Court precedents hostile to school integration
Victories like Tuesday’s, however, are increasingly rare. And they are rare largely because of Supreme Court decisions hostile to public school integration.
The first of three such decisions stretches back to 1974, shortly after President Richard Nixon moved the Court’s center of gravity sharply to the right by appointing four new justices. Nixon’s appointees provided four of the five votes for the majority in Milliken v. Bradley, which held that desegregation orders could not cross school district lines unless the court determined that the districts themselves were drawn with racist intent. This decision didn’t just limit the tools available to courts hearing desegregation cases, it also defined narrowly the kinds of government action that counted as segregationist in the first place.
Seventeen years later, the Supreme Court handed down Board of Education of Oklahoma City v. Dowell. “Federal supervision of local school systems was intended as a temporary measure to remedy past discrimination,” Chief Justice William Rehnquist wrote for the majority in Dowell. The upshot of his decision is that desegregation orders should be lifted after a period of compliance. And once that order is lifted, the once-segregated district stands on the same legal footing as a district that was never segregated in the first place. Local school boards regain the power to implement policies that increase racial separation, so long as these policies are not implemented for the very purpose of fostering segregation.
The third blow to desegregation efforts came in 2007’s Parents Involved v. Seattle School District. There, the Court considered two school districts that took voluntary steps to racially integrate its schools, even though these schools were not under a desegregation order. Chief Justice John Roberts’ plurality opinion said that this was not allowed. Race conscious remedies, according to Roberts, are always suspect, even when they are implemented for the very purpose of preventing segregation. “The way to stop discrimination on the basis of race,” Roberts famously asserted, “is to stop discriminating on the basis of race.”
Justice Anthony Kennedy did write a separate opinion that left open the door to other methods of desegregating schools. But Parents Involved sent a warning to school boards that they risk expensive litigation if they try to bring students together across racial lines.
The Supreme Court’s decision to abandon public school integration as a preeminent goal led to predicable results. The percentage of African American students attending integrated schools peaked in 1988. It’s since fallen off a cliff.
Black families near Gardendale are likely to face a similar fate. Though Judge Pryor’s opinion rejects one secession effort, it leaves the door wide open to another. “At oral argument, the plaintiffs’ counsel represented that they and the Jefferson County Board expect later this year to present the district court a plan for the final resolution of this litigation” — that is, a plan to lift the desegregation order and restore full authority to local school boards under Dowell — “we encourage that effort to bring this remedial phase to an end.
“If the Gardendale Board, for permissible purposes in the future, satisfies its burden to develop a secession plan that will not impede the desegregation efforts of the Jefferson County Board,” Pryor concludes in his opinion, “then the district court may not prohibit the secession.”
The secret to segregation, in other words, is to be a little subtle about it. Bragging about plans to make sure your schools look just like your white churches is never a good idea if you want to avoid constitutional sanctions. But the courts see no problem with segregation — just so long as school districts are discrete.