Court Enabled Resegregation of American Schools and a Potential Legal Remedy

Today, schools in the United States are more segregated than at any time since the 1960s, when Southern states were engaged in a coordinated campaign of "Massive Resistance" against desegregation orders and Northern states were almost as bad in their resistance to integration. As of 2003, almost 80% of white students attended schools that were practically all white and a similar percentage of black students attended predominantly black schools. The U.S. Supreme Court played a large role in enabling this resegregation and a number of its decisions stand in the way of reversing it, namely: (1) prohibiting the use of multi-district desegregation plans to combat "white flight" except where districts have colluded together to discriminate or substantially impacted one another's segregation; (2) requiring school districts be released from desegregation orders and court supervision if they establish racially neutral school admissions for only a few years; and (3) holding as there is no Constitutional right to an education there can be no equal protection violation when the government funds schools unequally. This would not be so depressing were there a likely political solution, but there is not as the problems exist primarily as a result of racism and classism among middle class white Americans, the very group of voters courted most actively by both political parties. Yet even in this landscape there may be a potential legal remedy in a domino approach of proving segregation in several adjacent suburban districts, then using the cumulative effect on the metropolitan area justifying a multidistrict plan.

At the end of the 1960's and beginning of the 1970's the courts finally began to make headway with school desegregation orders. Innovative U.S. District Court judges ordered districts to come up with desegregation plans providing for racial balances in schools that reflected the racial breakdowns of the districts as a whole and eliminating one race and predominately one race schools. Swann v. Charlotte-Mecklenberg Board of Education (US Supreme, 1971). As white and black children started to go to school together funding disparities within the schools also started to decrease greatly. This occurred not just along race lines but also along class lines as given higher poverty rates among blacks (primarily due to institutionalized racism) achieving the proportional racial representation required by the courts was impossible without integrating some poor black children into affluent white schools and vice versa, instead of lumping poor blacks with poor whites in separate schools. Thus, there was really a chance for equal educational attainment within districts across race and class lines. Large numbers of whites, however, reacted to integration by fleeing integrating urban and inner suburban areas for the farther suburbs. They were assisted greatly in this by federal and state programs that helped finance suburban development, zone to keep out less affluent people, and even carve black neighborhoods in the suburban counties out of suburban school districts.

The District Courts reacted to this by ordering multidistrict desegregation plans, essentially collapsing urban and suburban districts together so that all the children would attend the same schools which were then ordered integrated and funded equally. This might well have worked but in 1974 the U.S. Supreme Court, having shifted dramatically to the right since 1971, held such multidistrict approaches were unconstitutional unless a plaintiff could prove: (1) districts actively colluded together or with the state to intentionally segregate; or (2) segregation in one district was a substantial cause of segregation an another district. The Court then invalidated a multidistrict desegregation plan consolidating the school district of Detroit with 53 nearby suburban districts even though the factual findings below documented an extensive effort by the state of Michigan to keep the schools segregated in Detroit and surrounding districts which even included carving black suburban neighborhoods out of the suburban districts and assigning them to the Detroit schools! Milliken v. Bradley (US Supreme, 1974).

Still, in those districts under supervision desegregation plans had a tremendous effect. However, the effects soon proved to be short lived as in 1991 the U.S. Supreme Court held that once a district implemented a racially neutral school assignment plan for a couple of years court supervision had to be terminated. Once supervision was terminated a district would be free to adopt any plan that it wanted so long as it did not purposefully and intentionally segregate or discriminate on the basis of race. Knowledge of a segregatory effect, however, would generally be insufficient to invalidate a plan. Thus, the Court held that the Oklahoma City Public Schools had to be released from supervision even though their new plan was to dismantle the desegregation program and assign students to neighborhood schools which because the city was geographically very race segregated meant that most of the schools would be predominantly if not entirely one race. Board of Education of Oklahoma City Public Schools v. Dowell (US Supreme, 1991). In the wake of Dowell school districts all over the country petitioned from release from supervision and then promptly discarded their desegregation plans and de facto resegregated. Even where neighborhood high and middle schools have produced racially mixed student populations, many schools have used academic tracking systems that result in white and black students being segregated into different academic programs often in different parts of the school building with the predominantly white programs getting the lion's share of the resources.

As America's schools divided into primarily white and primarily black systems again, the Supreme Court also protected the government's ability to fund one system much better than the other. In San Antonio Independent School District v. Rodriguez (US Supreme, 1973), the Court held that as there is no federal Constitutional right to education, there can be no Equal Protection challenge to state school funding systems that favor affluent districts over less affluent districts. Thus, today the door is fairly closed to challenge perverse laws like No Child Left Behind that strip federal funding from poor, primarily minority, districts that desparately need more resources to "punish" them for their failure and supposedly encourage them to improve, while giving the funds to affluent, primarily white districts.

In many metropolitan areas the inner suburbs are now becoming more racially diverse and more densely populated, resulting in both more racially mixed communities and greater proximity between white and black neighborhoods. As a result even neighborhood school models create at least high schools if not also middle schools that are racially mixed. However, in a lot of districts academic tracking has been used and arguably manipulated to result in the white children being steered toward better funded academic programs in one part of the school while all but a token percentage of the black students are steered toward less well funded progarms. All too many districts are like Montgomery County, Maryland, steering even mediocre white students into an "honors" program while comparable black students are steered toward "regular" with the only major differences between the two programs being racial composition differences and the fact that the first program gets better teachers and more supplies. Students who are advanced are then sent into Advanced Placement (AP) or in the high schools that have it the IB program.

It is exactly this manipulating of tracking that offers an opportunity to combat resegregation in court starting with a district and then targeting an entire metropolitan area. The concept is simple although the execution would be quite difficult. The idea would be to sue a school system like Montgomery County, Maryland alleging a purposeful use of tracking to segregate students according to race. A claim could be proven if upon studying the grades of white and black students entering high school, whether those students enrolled in honors or regular programs, and through interviews with the students whether they were steered by guidance counselors and school administrators toward the honors or regular programs, it could be demonstrated that white and black students who are comparable in every other way are guided differently, whites primarily to honors and blacks primarily to the regular program. While such disparate impact data is usually not dispositive, if there is an overwhelming trend and no other reasonable explanation other than racial prejudice it will be enough to prove a racially discriminatory purpose even for a law or policy that is racially neutral on its face. Yick Wo v. Hopkins (US Supreme, 1886). As many tracking mechanisms are designed by State Boards of Education and then adopted by local systems, if the same discriminatory application can be proven in a couple of suburban districts in a metropolitan area it can then be argued that there is more than coincidence but instead that they are either intentionally or unintentionally influencing one another so segregation in one district effects it in other districts potentially even outer suburbs that are less racially mixed. At this point it can be argued that the districts are substantially influencing one another's segregation so the whole metro area should be subject to a desgregation plan.

While obviously this domino theory would need a lot of fleshing out to work and would require a tremendous amount of research it seems potentially promising as at least on their face tracking systems in many suburban districts there are serious allegations both within and outside of African American communities of the manipulation of tracking for racially discriminatory purposes which if correct should be born out by study. In any case, its an idea and worth bandying about on a night when I cannot sleep.