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Overview
It is hard to believe that fifty years have
past since the United States Supreme Court handed down its
landmark Brown v Board of Education (1954) (hereafter
referred to as Brown 1) decision. A class action,
Brown 1 involved the joinder of four separate court cases
from the States of Kansas, South Carolina, Virginia, and
Delaware. In a unanimous opinion written by Chief Justice Earl
Warren (and handed down on May 17, 1954), the high court
declared unconstitutional the segregation of public school
students solely on the basis of their race. In doing so, the
Court overturned the case hardened “separate but equal doctrine”
established in Plessy v Ferguson (1896).
Brown 1 is significant on two
levels. First, and foremost, it declared unconstitutional the
de jure (by law) segregation of public students on the basis
of race. Second, the impact of the decision went far beyond
issues of racial segregation of students. Over the years,
Brown 1 emerged as the “right to education” decision.
Subsequent applications of the case (e.g., student
ability grouping and tracking, public school finance, special
education) extended Equal Protection Clause guarantees to all
children of school age. As one author has summarized, Brown 1
“is arguably the Supreme Court’s most important case involving
K-12 education, if not of all time.” (Russo, 2004)
More than a decade ago, my colleague H.C.
Hudgins, Jr., and I were fortunate to have published in
West’s Education Law Reporter an article briefly summarizing
the path taken by public school racial desegregation in the
years following Brown 1. In that piece, we also looked to
the future and made some predictions as to where we thought
desegregation would go as public education moved into the new
millennium. (Vacca and Hudgins, 1992) On the fiftieth
anniversary of Brown 1 my intent in this commentary is to
revisit and very briefly restate and summarize some of our
decade-old research findings and predictions. What did the
courts say post-Brown 1? What has been the path of
student desegregation over the past decade? What are the
implications for educational policy 2004?
Charting a New Course. When the
Supreme Court ruled in Brown 1 (1954) that “separate but
equal is inherently unequal,” it sought to end racial
segregation in the four states involved in the case and, more
broadly, to end racial segregation in public schools wherever it
existed. The Court’s intent was to create equal access to
educational opportunities for all children of school age absent
discrimination based solely on their race or ethnic background.
What followed, however, was an era of frustration, confusion,
mixed messages, and resistance not envisioned by the Court. As a
result, state and local educational policy decisions were very
inconsistent.
All Deliberate Speed. In 1955, when
the Supreme Court ordered that school desegregation must proceed
with “all deliberate speed,” Brown 2 (1955), it sent out
mixed messages and created confusion among educational policy
makers. Instead of establishing specific criteria to be followed
in merging previously separate schools in the four states
involved in Brown 1, the Court identified a number of
local problems that might impede progress. Among these problems
areas were school administration and personnel, physical
facilities, transportation, revision of school district
attendance zones, and local control. As a result, the
desegregation process did not gain much momentum.
A Decade of Patience and Resistance.
In the years immediately following Brown 2 (1955), the
Supreme Court remained steadfast in its desire to see unitary
schools immediately replace racially segregated schools,
Cooper v Aaron, 1958). At the same time, however, it
continued to give deference to the age-old practice of “local
control” of public education. Thus, between 1955 and 1964, the
high court exhibited an attitude of patience. While some state
and local educational policymakers interpreted the “all
deliberate speed” standard as a signal to proceed as quickly as
possible, to others it opened the way to delay and massive
resistance.
The Pace Accelerates. Ten years
after Brown 1, the Supreme Court’s patience began to wear
thin as “all deliberate speed” had run its course with little to
no positive results. In a Virginia case the Court abandoned the
“wait and see attitude” and assumed a more activist role. In
Griffin v Prince Edward County School Board (1964) it
denounced delays used to resist desegregation and ordered state
and local school officials to promptly implement a desegregation
process. One year later, in Rogers v Paul (1965), the
Court ruled that desegregation at the rate of one grade per year
was too slow. Three years later, the Court held that “freedom of
choice plans” which did not accelerate public school
desegregation could not be approved. In Green v School
Board of New Kent County (1968), Justice Brennan found
unacceptable the school board’s freedom of choice plan (which
had been in effect for three years), because he did not see
“prompt and meaningful progress made toward establishing a
unitary school system.” In his words, “delays are no longer
tolerable….” The Supreme Court in Green articulated
six criteria to apply in analyzing whether or not a school
system has achieved unitary status and these were: (1) student
population, (2) faculty, (3) staff, (4) transportation, (5)
extracurricular activities, and (6) facilities. One year later,
the high court held, that “dual school systems must be
terminated at once.” Alexander v Holmes (1969)
The pace of desegregation continued to
accelerate in the 1970’s. It is important to note that the
Supreme Court’s ruling in Brown 1 also acted as a
catalyst in moving forward the quest for equal rights that went
beyond matters of public school desegregation. For example, the
1970’s saw the:
- Implementation of the Civil Rights
Act of 1964 (which prohibits the denial of benefits and
discrimination in federally funded programs on grounds of
race, color, or national origin).
- Increased availability of federal
funding with accompanying federal guidelines
requiring desegregation as a precondition of receipt of
federal funds.
- Passage of the Rehabilitation Act of
1973, Section 504; the Education Amendments of
1972, Title 9; and, the Education of All
Handicapped Children Act of 1975.
- Emergence of new lines of case law
involving challenges to state public school finance
structures post-Rodriguez (1973); student
ability grouping and tracking post-Hobson v Hansen
(1967); and student discipline post-Goss v Lopez
(1975).
It also is important to note that
membership on the United States Supreme Court changed in the
early1970’s. Chief Justice Warren E. Burger was appointed in
1969, followed by Harry A. Blackmun (1970), Lewis F. Powell
(1972), and William H. Rehnquist (1972). With such Justices as
William O. Douglas and Hugo Black gone, the era of the Warren
Court had come to an end. (Vacca and Hudgins, 1991)
School Busing. In 1971, the Supreme
Court charted a different judicial course in school
desegregation when it ruled that using school buses to transport
students from one school to another within a local school
district, in an effort to achieve “racial balance,” was a
legitimate remedial tool. In fact, said the Court, district
court judges “are within their power in requiring it.” The Court
clearly stated that state-imposed segregation in public schools
must be eliminated “root and branch.” Swann v
Charlotte-Mecklenburg Board of Education (1971)
A long line of “school busing” cases
followed where federal district court judges actively exercised
their equitable powers and decreed changes in local educational
policy making once reserved for local school boards. Bradley
v School Board of City of Richmond, Va. (1972) In other
words local educational policy-making, once solely reserved for
local school boards, became a legitimate prerogative of federal
judges through the enforcement of court ordered busing decrees.
The Path of Desegregation Widens.
Beginning in the early1970’s, the Supreme Court widened the path
of school desegregation when it decided a case involving Denver
Colorado. Keyes v School District No. 1 (1971) raised
issues that existed in the form of de facto not de
jure segregation. In Keyes segregation in public
schools did not exist because of a state constitutional or
statutory mandate. It existed in fact because of where people
work, live, and raise their children. As the Court said in
Keyes, “what is or is not a segregated school will
necessarily depend on the facts of each particular case.” Courts
must look for, in each case, the intent of local educational
policy-makers to gerrymander student attendance zones as a means
to establishing and maintaining racially separate schools. Where
school officials deliberately and purposefully draw and maintain
racially discriminatory school attendance zone lines, federal
district courts can order school desegregation. Where the intent
of school officials to create segregation of students is absent,
judges cannot act. Milliken v Bradley (1974)
The late 1970’s and the 1980’s produced a
flurry of new and unforeseen constitutional, legal, and policy
questions. Because no two public school systems were exactly
alike in every characteristic, and the social demographics of
communities rapidly changed, federal judges were once again
frustrated. In fact some federal judges expressed an attitude
that an equitable solution to racially identifiable and isolated
schools “may not be attainable in the context of the
demographic, geographic and sociological complexities of modern
urban communities.” Pitts v Freeman (1989)
The Rehnquist Court and Local Control.
During the period from 1983 and 1991, the United States
Supreme Court did not hand down a substantive opinion on public
school desegregation. It was not until January 15, 1991, that
the Supreme Court spoke. In Dowell v Board of Education of
Oklahoma City (1991), by a vote of 5 to 3, the high court
expressed a desire to change the judicial analysis applied to
public school desegregation issues. As Chief Justice Rehnquist
opined, “…federal supervision of local school systems was
intended as a temporary measure to remedy past discrimination….
Dissolving a desegregation decree after 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.” He then added
that court ordered desegregation decrees “are not intended to
operate in perpetuity.” (Dowell, 1991)
In essence, the Court’s majority in
Dowell told the courts below that old desegregation issues
must be laid to rest after a reasonable period of “good faith
efforts to remedy the past.” Moreover, the work of future boards
of education should not be impeded by the problems faced by past
boards. Today’s educational policy-makers must be free to move
local school systems into the future as necessitated by changing
internal and external needs. Local public school systems and
their surrounding communities had changed over time and were
different from what they were when Brown I was handed
down. (Vacca and Hudgins, 1992)
Emerging Issues
In the post-Dowell period (1992
through 2000) the path was open for educational policy-makers to
fashion new remedies to tackle several emerging legal and
socio-economic issues plaguing public school systems, especially
those located in urban and rural communities. School busing had
outlived its usefulness and federal judges evidenced a
willingness to accept new proposals and plans intended to remedy
existing problems. It was an era when existing court
desegregation decrees were swallowed up by massive statewide
efforts to reform and restructure public education, and by
efforts (federal and state) to provide for and accommodate
swelling populations of students with special needs; especially
students with educational disabilities, and students who were
not English language proficient.
What follows is a partial list of programs
and proposals made as a part of school reform and restructuring
efforts. Each item in the list contains the potential to produce
future legal and constitutional issues related to the lingering
effects of past public school segregation.
- Renewed emphasis on parental choice,
both intra- and inter-school district.
- Renewed interest in school voucher
programs (including private schools).
- Establishment of charter schools in
local communities.
- Establishment of charter colleges and
universities.
- Privatization of public schools,
especially schools labeled “failing,” or “under-performing.”
- Popular election of local school boards
in states where school boards had been appointed.
- Implementation of intra-district plans
to close some schools and consolidate others because of
shrinking and shifting enrollments.
- Establishment of special interest
schools for selected students (e.g., engineering and
technology, art and drama, science and mathematics,
leadership).
- Establishment of single-sex classes and
schools.
- Establishment of single-race classes and
schools
- Establishment of special schools for
students with severe disciplinary problems.
- Establishment of special schools for
students with autism.
- Implementation of new methods of
identifying, tracking, and grouping students in the elementary
grades, especially those who need extensive social and
academic remediation.
- Implementation of statewide student
academic testing as a precondition of promotion from
grade-to-grade.
- Implementation of high school exit
examinations as a precondition for
graduation.
Case Law
As public education entered the post-Dowell
era (1992-2004), Brown v Board of Education (1954) had
undergone a metamorphosis. While Brown had become the
foundation decision in a broad-based civil rights movement in
public education, and the primary focus of the Court’s initial
ruling remained in tact (i.e., removing racial
segregation of public school students “root and branch”),
the attitudes of federal judges toward the application of the
Brown 1 analysis had changed. What follow are five examples
of case law from that period.
One year after
Dowell the Rehnquist Court decided Freeman v Pitts
(1992). By a vote of 8 to 0 (Justice Thomas did not
participate), the Court said that federal judges have the
authority to relinquish their control of existing desegregation
orders and allow “incremental withdrawal” of their supervision
of local school district efforts to desegregate. At the same
time, the Court reduced the application of all six Green
criteria; keeping only the criteria of faculty assignment and
allocation of resources under federal court scrutiny. Finally,
the Court in Freeman suggested that a specific time limit
should be placed on a public school system’s efforts to
desegregate, especially as “community demographics rapidly
change.
People Who
Care v Rockford Board of Education (2001), involved a motion
filed by a local school board to dissolve a fifteen-year old
court desegregation order. School officials argued that they had
complied fully with the order and that existing inequalities in
student achievement (achievement of minority students lagged
behind that of white students) were caused by factors beyond the
school system’s control. The court held that the school board
had no legal duty to “remove vestiges of societal discrimination
for which it was not responsible.” In the court’s view, the
school board had carried out its desegregation efforts in good
faith, and the remaining inequities were likely the result of
such factors as poverty, education levels and employment status
of parents, and peer pressure.
In Little
Rock School District v Pulaski County (2002), a federal
district court judge declared a public school system unitary
since it had satisfied compliance in five of six areas of the
court approved desegregation plan. Finding compliance in good
faith efforts to desegregate, student discipline,
extracurricular activities, advanced placement courses, and
guidance and counseling, the court held that judicial
supervision and monitoring in each of these areas would be
terminated.
Tasby v
Moses (2003), shows the willingness of a federal judge in
Texas to terminate supervision of desegregation of a school
district, because the district made sufficient progress in
creating equal educational opportunities for all students;
opportunities not available at the outset of the desegregation
case. The court was impressed that the achievement gap existing
between Anglo, African-American, and Latino students had
narrowed; magnet schools and learning centers were available;
bilingual programs had been implemented; and new early childhood
education programs now operated.
In Hoots v
Pennsylvania (2003), a federal district court granted a
public school district’s motion to be declared unitary and
terminate judicial supervision and monitoring. In reminding
school officials that unitary status indicates more that simply
integrating the student population, the court saw as convincing
evidence the fact that school officials had in good faith
complied with the desegregation order in such areas as staff
development, remedial and compensatory education, and guidance
and counseling.
Implications for Policy
On May 17, 2004, our nation will celebrate
the fiftieth birthday of Brown v Board of Education.
As the above commentary demonstrates, Brown’s journey
has been very interesting and in some ways unpredictable. As
some authors have summarized the desegregation process
post-Brown, “No other area of school law has involved such
volatile debate, obligated such a large percentage of a school
district’s budget, or resulted in greater political and social
turmoil than desegregation.” (Cambron-McCabe, et al., 2004) On
the other hand, however, within the last three decades (1)
students and faculty have been assigned to desegregated schools,
(2) programs of study have been developed to be more responsive
to children of various racial and ethnic backgrounds, (3)
considerable progress has been made in converting formerly dual
school systems into unitary school systems, (4) academic
standards and expectations for all students have been
established and implemented, and (5) efforts have continued to
remove the lingering effects past racial discrimination.
Today, fifty years after Brown 1,
each state remains legally responsible for education within its
boundaries, and each public school system within a state remains
unique in many respects. As public school systems move through
the second half of the current decade, much work still remains
to be done. Good faith efforts must be made to remedy any
residual effects of the past. School board policy must continue,
in the spirit of Brown 1, to clearly state that:
·
The school system does not discriminate against
any student, parent, teacher, or staff member on the basis of
race, ethnicity, or socio-economic condition.
·
The school system guarantees all students equal
access to all schools, programs, and activities (including
extracurricular activities) sponsored by and offered within the
school system.
·
The school system strives to create and implement
expanded curricular and extracurricular opportunities (including
parent choice, theme schools, free student transfer, and
transportation for students) open to all students within the
school district, especially those who may live in racially
and/or socio-economically isolated areas.
·
The school system expects all students to achieve
both academically (i.e., meet statewide standards) and
non-academically (e.g., socially).
·
The school system maintains extensive programs to
provide all students with equal access to remedial help,
especially in mathematics, reading, language development, and
social skills.
·
The school system’s disciplinary policies, rules,
regulations, and procedures are consistently and equally applied
to all students.
·
The school system implements a program of staff
development (for both professional and support staff) that
includes methods and techniques in effectively working with
racially, ethnically, and culturally diverse student
populations.
Resources Cited
Alexander v Holmes Board of Education, 396
U.S. 19 (1969)
Board of Education of Oklahoma City v
Dowell, 111 S.Ct. 630 (1991)
Bradley v School Board, 409 U.S. 910 (1972)
Brown v Board of Education, 347 U.S. 483
(1954)
Brown v Board of Education, 349 U.S. 294
(1955)
Cambron-McCabe, et al., PUBLIC SCHOOL LAW:
TEACHERS’ AND STUDENTS’ RIGHTS, Fifth Edition (Allyn and Bacon,
2004)
Civil Rights Act of 1964, 42 U.S.C.A 2000,
et seq.
Cooper v Aaron, 358 U.S. 1 (1958)
Education Amendments of 1972, Title 9, 20
U.S.C.A. 1681
Education for All Handicapped Children Act,
20 U.S.C. 1401, et seq. (1976)
Freeman v Pitts, 112 S.Ct. 1430 (1992)
Goss v Lopez, 419 U.S. 565 (1975)
Green v New Kent County School Board, 391
U.S. 430 (1968)
Griffin v Prince Edward County School
Board, 377 U.S. 218 (1964)
Hobson v Hansen, 269 F.Supp. 401 (D.D.C.
1967)
Hoots v Pennsylvania, 227 F.Supp.2d 539 (W.D.
Pa. 2003)
Keyes v School District No. 1, 413 U.S. 189
(1971)
Little Rock School District v Pulaski
County, 237 F.Supp.2d 988 (E.D. Ark.2002)
Milliken v Bradley, 418 U.S. 717 (1974)
People Who Care v Rockford Board of
Education, 2001 USLW 388935 (7th Cir. 2001)
Pitts v Freeman, 887 F.2d 1438 (11th
Cir. 1989)
Plessy v Ferguson, 163 U.S. 537 (1896)
Rehabilitation Act of 1973, Section 504, 29
U.S.C. 794 (1973)
Rogers v Paul, 382 U.S. 198 (1965)
Russo, Charles J., REUTTER’S THE LAW OF
PUBLIC EDUCATION, Fifth Edition (Foundation Press, 2004)
San Antonio I.S.D. v Rodriguez, 411 U.S. 1
(1973)
Swann v Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971)
Tasby v Moses, 265 F.Supp.2d 757 (N.D. Tex.
2003)
Vacca, R.S. and H.C. Hudgins, Jr., THE
LEGACY OF THE BURGER COURT AND THE SCHOOLS 1969-1986 (NOLPE,
1991)
Vacca, R.S. and H.C. Hudgins, Jr., “The
Supreme Court Charts A New Course For School Desegregation In
The 1990’s: Dowell’s Pivotal Position,” 75 West’s Education Law
Reporter 981 (September 10, 1992)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
