From Desegregation to Resegregation

Plessy v. Ferguson,163 U.S. 537 (1896)

The United States Supreme Court rules that state laws requiring separation of the races are Constitutional as long as equal accommodations are made for African- Americans. Court establishes the “separate but equal” doctrine that justifies legal segregation in the South.Kluger, “Simple Justice”, Random House 1977.

Mendez v. Westminster School Dist. Of Orange County, 64 F.Supp.544 (S.D. Cal 1946), 161 F.2d 774 (9th Cir.1947)

J. McCormick: “ ‘The equal protection of the laws’ pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage….The evidence clearly shows that Spanish-speaking children are retarded in learning English by lack of exposure to its use because of segregation, and that commingling of the entire student body instills and develops a common cultural attitude among the children which is imperative for the perpetuation of American institutions and ideals, It is also established by the record that the methods of segregation prevalent in the defendant school districts fosters antagonisms in the children and suggests inferiority among them where none exists.”

Brown v. Board of Education of Topeka, 347 U.S.483 (1954)

Ch.J.Warren: “…the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.”

Brown Reasoning

“Today, education is perhaps the most important function of state and local government. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society….It is the very foundation of good citizenship….In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it , is a right which must be made available to all on equal terms.”

Brown (cont.)“In Sweatt v. Painter, in finding that a segregated law school for Negroes could not provide them with equal educational opportunities, this Court relied in part on ‘those qualities which are incapable of objective measurement but which make for greatness in a law school.’ Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”“ We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”“Because these are class actions, because of the wide applicability of this decision and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.” Further argument to be presented.

Brown summary:

Schools formerly practicing de jure segregation have an affirmative duty to eliminate all vestiges of prior segregation to the extent practicable.

The mere cessation of discriminatory activities is insufficient.

Brown v. Board of Education II, 349 U.S. 294 (1955)

“Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these case can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.”“At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles…. But, it should go without saying that the validity of these constitutional principles cannot be allowed to yield simply because of disagreement with them.”“…the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory bases with ALL DELIBERATE SPEED the parties to these cases.” (emphasis added).

“All Deliberate Speed”“But the forces that had opposed integration before the Brown decision did not use the

preparation time granted by the Court as the Court had intended. They did not search for desegregation plans. Instead, they passed statues and school board resolutions to prevent compliance with the law. They pounded on the Court’s failure to order immediate desegregation as the justification for an endless variety of evasive and delaying tactics.”

“City after city saw violent confrontations when blacks sought to attend schools from which they had previously been barred. Judges, school superintendents, and principals who tried to obey the Brown decision were attacked in the press and hassled unmercifully. Parents who tried to send their children to white schools or who filed desegregation suits lost their credit at local stores during the growing season, couldn't get work, were harassed and occasionally beaten. The governor of Arkansas sent the National Guard to Little Rock to prevent nine Negro students from entering the white high school.The President of the United States had to send in federal troops to restore order and protect the students from mob violence at the school entrance….” Ginger, “The Law, the Supreme Court and The People's Rights,” (Barron’s Educational Series 1974).

By 1965, ten years after the “all deliberate speed” guideline, more than 75 percent of the schools in the South remained segregated.

Title VI of the Civil Rights Act of 1964

“no person in the United States shall,on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Griffin v. Prince Edward County School Board of Education, 377 U.S. 218 (1964)

County school Board closed public schools to avoid desegregation. School board funds private white-only schools in County.

All other schools in Virginia remained open.

U.S. Supreme Court forces county to reopen its public schools.

Green v County School Board of New Kent County, 391 U.S. 430 (1968)

“The question for decision is whether, under all the circumstance here, respondent School Board’s adoption of a ‘freedom of choice’ plan which allows a pupil to choose his own public school constitutes adequate compliance with the Board’s responsibility ‘to achieve a system of determining admission to the public schools on a non racial basis…” Brown II“In determining whether respondent School Board met that command by adopting its ‘freedom of choice’ plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a : prompt and reasonable start.’…The time for mere ‘deliberate speed’ has run out… The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.”“Racial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools, but to every facet of school operations – faculty,staff,transportation, extracurricular activities and facilities.”“The … Board's ‘freedom of choice’ plan cannot be accepted…In three years of operation not a single white child has chose to attend Watkins school …85%of the Negro children still attend the all-Negro Watkins school. In other words, the school system remains a dual one…[the Board must] fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.”

Green factors:

Student assignmentsFaculty and staff assignmentsPhysical FacilitiesTransportationExtra-curricular activitiesResource Allocation Other courts have also looked at:

Student assignments in special ed and gifted classes Tracking Student discipline Quality of education

Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S.1 ( 1971)

“Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court’s mandated has impeded the good faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted by this Court and other courts.”Holding: Policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities are critical indicia of school segregation and the first remedial responsibility of school districts to address.Teachers may be assigned and school construction and abandonment may not be utilized to resegregate the district.Busing as a remedy is approved in the South.

Keyes v. School District No. 1, Denver Co., 413 U.S.189 (1973)

First “northern” case involving school segregation. First case to involve de facto as opposed to de jure segregation.

No state constitutional or statutory provision mandating segregation.

Rather, school board’s neighborhood school policy and other selection criteria result in racially and ethnically segregated schools.

Court holds that de facto segregation is not sufficient grounds for court intervention if the school board can show that it did not intend to segregate students.

Court further holds that Latino students are entitled to desegregation remedies:

“There is agreement that, though of different origins, Negroes and Hispanic in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanic included in the category of "segregated" schools.”

Case marks beginning of Northern desegregation plans (e.g. Boston) white flight and other significant demographic changes.

Milliken v. Bradley, 418 U.S. 717 (1974)

United States Supreme Court overturns ruling that would have abolished city-suburban school districts surrounding Detroit Michigan.

The ruling would impact fifty-three suburban school districts and over 300,000 students.

Milliken holding:

C.J.Burger: “The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann, … Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must …  first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus 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. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.”

Milliken dissent:

J.Marshall, “After 20 years of small,often difficult steps toward that great end [equal justice under law], the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and extent of the constitutional violation, the Court’s answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. …Our Nation, I fear, will be ill served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together,there is little hope that our people will ever learn to live together….…a Detroit-only decree, the only remedy permitted under today’s decision, ‘would not accomplish desegregation.’”

Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976)

J. Rehnquist: “It may well be that petitioners have not yet totally achieved the unitary system contemplated by … Swann. There has been, for example, dispute as to the petitioners' compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators. …. In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena's public schools. No one disputes that the initial implementation of this plan accomplished that objective. That being the case, the District Court was not entitled to require the PUSD to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity. For having …  once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.”

Board of Education of Oklahoma City v. Dowell,498 U.S. 237 (1991)

Federal Court order in 1972 results in a race-based busing plan for City

White flight over the years results in increased busing. In 1985 school board establishes a new plan eliminating busing, school district to return to

neighborhood schools.Ch.J, Rehnquist holds that federal supervision is a temporary measure. Desegregation decrees may

be dissolved despite resegregation of the district caused by private choices when the district has taken all “practicable” steps to eliminate segregation:

“Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs. … The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.’”

Dowell Dissent

J.Marshall, “Oklahoma gained statehood in 1907. For the next 65 years, the OklahomaCity School Board… maintained segregated schools – initially relying on laws requiring dual school systems; thereafter, by exploiting residential segregation that had been created by legally enforced restrictive covenants. In 1972 – 18 years after this Court first found segregated schools unconstitutional – a federal court finally interrupted this cycle, enjoining the Board to implement a specific plan for achieving actual desegregation of its schools.The practical question now before us is whether , 13 years after that injunction was imposed, the same Board should have been allowed to return many of its elementary schools to their former one-race status. The majority today suggests that 13 years of desegregation was enough. The Court remands the case for further evaluation of whether the purposes of the injunctive decree were achieved sufficient to justify the decree’s dissolution. Hower, the inquiry it commends to the District Court fails to recognize explicitly the threatened reemergence of one-race schools as a relevant ‘vestige's of de jure segregation….I believe that a desegregation decree cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown I persist and there remain feasible methods of eliminating such conditions.”

Freeman v. Pitts, 503 U.S.467 (1992)

Importance of local control stressed by J. Kennedy

A district court has the authority to relinquish supervision and control of a school district in incremental stages before full compliance has been achieved.

“Where resegregation is a product not of state action but of private choices, it does not have constitutional implications . It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies.”

Missouri v. Jenkins, 515 U.S. 70 (1995)

Ch.J. Rehnquist: Overturns trial court orders requiring the state to fund salary increases for teachers and staff in Kansas City and orders to continue to fund remedial “quality education” programs because student achievement levels were “at or below national norms at many grade levels.” The district’s attempts to create “desegregative attractiveness” to combat white flight “cannot be reconciled with our cases placing limitations on a district court’s remedial authority.”

“On remand, the District Court must bear in mind that its end purpose is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.’”

J.Thomas, concurring takes on the psychological theories espoused in Brown: “After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then their must be something inferior about blacks.”

Summary:

Desegregation orders are temporary and districts can return to segregated neighborhood schools.

Desegregation plans may be dismantled piecemeal.

Efforts of lower courts to maintain desegregation remedies until actual benefits are produced for minority students set aside. Programs cannot be required to produce measurable gains for the students subjected to a history of discrimination.

Three criteria for unitary status:

District must have complied with desegregation orders.District must demonstrate a commitment to desegregation.The district must prove that it has eliminated the vestiges of the prior de jure segregation to the extent practical.

Sum: white parents can now sue to prevent efforts to maintain integration under a theory of “reverse discrimination.”

Resegregation in American Schools (Civil Rights Project, Harvard 1999), www.law.harvard.edu/civilrights

“First, the American South is resegregating, after two and a half decades in which civil rights law broke the tradition of apartheid in the region’s schools and made it the section of the country with the highest levels of integration in its schools.”

“Second, the data shows continuously increasing segregation for Latino students, who are rapidly becoming our largest minority group and have been more segregated than African Americans for several years.”

“Third, the report shows large and increasing numbers of African American and Latino students enrolled in suburban schools, but serious segregation within these communities, particularly in the nation’s large metropolitan areas.”

“Fourth, we report a rapid ongoing change in the racial composition of American schools and the emergence of may schools with three or more racial groups. The report shows that all racial groups except whites experience considerable diversity in their schools but whites are remaining in overwhelmingly white schools even in regions with very large non-white enrollments.”

A Multiracial Society with Segregated Schools are we Losing the Dream?(2003) www.civilrightsproject/harvard.edu

“The data show the emergence of a substantial group of American schools that are virtually all non-white, which we call apartheid schools. These schools educate one-sixth of the nation’s black students and one-fourth of black students in the Northeast and Midwest. These are often schools where enormous poverty, limited resources, and social aned health problems of many types are concentrated. One ninth of Latino students attend schools where 99-100%of the student body is composed of minority students.”“The balkanization of school districts and the difficulty of creating desegregated schools within these cities show the huge consequences of the Supreme Court's 1974 Milliken v. Bradley decision blocking city-suburban desegregation in metropolitan Detroit. According to one recent study, metropolitan Detroit schools were extremely segregated in 1994 and had the highest level of between-district segregation of all metro areas in the country.”“Many of the most rapidly resegregating school systems since the; mid-1980s are suburban. Clearly segregation and desegregation are no longer merely urban concerns, but wider metropolitan issues.”

(cont.)

“Many of the nation’s most successful plans are being dismantled by federal court decisions as the courts have been changed from being on the leading edge of desegregation activity to being its greatest obstacle. Since the Supreme Court changed desegregation law in three major decisions between 1991 and 1994, the momentum of desegregation for Black students has clearly reversed in the South, where the movement had by far its greatest success.”

Brown at 50: King’s Dream or Plessy’s Nightmare?www.civilrightsproject.harvard.edu (2004)

In many districts where court-ordered desegregation was ended in the past decade, there has been a major increase in segregation. The courts assumed that the forces that produced segregation and inequality had been cured. This report shows they have not been.

Among the four districts included in the original Brown decision, the trajectory of educational desegregation and resegregation varies widely, and it is intriguing that three of the four cases show considerable long-term success in realizing desegregated education.

Rural and small town school districts are, on average, the nation’s most integrated for both African Americans and Latinos. Central cities of large metropolitan areas are the epicenter of segregation; segregation is also severe in smaller central cities and in the suburban rings of large metros..

There has been a substantial slippage toward segregation in most of the states that were highly desegregated in 1991. The most integrated state for African Americans in 2001 is Kentucky. The most desegregated states for Latinos are in the Northwest. However, in some states with very low black populations, school segregation is soaring as desegregation efforts are abandoned.

American public schools are now only 60 percent white nationwide and nearly one fourth of U.S. students are in states with a majority of nonwhite students. However, except in the South and Southwest, most white students have little contact with minority students.

Asians, in contrast, are the most integrated and by far the most likely to attend multiracial schools with a significant presence of three or more racial groups. Asian students are in schools with the smallest concentration of their own racial group.

The vast majority of intensely segregated minority schools face conditions of concentrated poverty, which are powerfully related to unequal educational opportunity. Students in segregated minority schools face conditions that students in segregated white schools seldom experience.

Latinos confront very serious levels of segregation by race and poverty, and non- English speaking Latinos tend to be segregated in schools with each other. The data show no substantial gains in segregated education for Latinos even during the civil rights era. The increase in Latino segregation is particularly notable in the West.

There has been a massive demographic transformation of the West, which has become the nation’s first predominantly minority region in terms of total public school enrollment. This has produced a sharp increase in Latino segregation.