From Desegregation to Resegregation

1
From Desegregation to Resegregation
2
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.

3
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.

4
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.

5
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.

6
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.

7
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.

8
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).

9
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
  Courts 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, (Barrons 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.

10
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.

11
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.

12
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 Boards
  adoption of a freedom of choice plan which
  allows a pupil to choose his own public school
  constitutes adequate compliance with the Boards
  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 systems 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
  acceptedIn three years of operation not a single
  white child has chose to attend Watkins school
  85of the Negro children still attend the
  all-Negro Watkins school. In other words, the
  school system remains a dual onethe Board must
  fashion steps which promise realistically to
  convert promptly to a system without a white
  school and a Negro school, but just schools.

13
Green factors

• Student assignments
• Faculty and staff assignments
• Physical Facilities
• Transportation
• Extra-curricular activities
• Resource Allocation
• Other courts have also looked at
• Student assignments in special ed and gifted
  classes
• Tracking
• Student discipline
• Quality of education

14
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
  Courts 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.

15
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 boards 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.

16
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.

17
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.

18
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
  Courts 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
  Courts 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 todays decision, would not accomplish
  desegregation.

19
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.

20
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.

21
Dowell Dissent

• J.Marshall, Oklahoma gained statehood in 1907.
  For the next 65 years, the Oklahoma
• City 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 decrees
  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.

22
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.

23
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 districts attempts to create
  desegregative attractiveness to combat white
  flight cannot be reconciled with our cases
  placing limitations on a district courts
  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.

24
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.

25
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.

26
Resegregation in American Schools (Civil Rights
Project, Harvard 1999), www.law.harvard.edu/civilr
ights

• First, the American South is resegregating,
  after two and a half decades in which civil
  rights law broke the tradition of apartheid in
  the regions 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 nations 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.

27
A Multiracial Society with Segregated Schools
are we Losing the Dream?(2003) www.civilrightsproj
ect/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 nations 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 99-100of 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.

28
(cont.)

• Many of the nations 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.

29
Brown at 50 Kings Dream or Plessys
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 nations 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.

30

• 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 nations first predominantly
  minority region in terms of total public school
  enrollment. This has produced a sharp increase in
  Latino segregation.