Commentary

'Encouraging' Precedent in Nashville

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Thomas A. Wiseman Jr., the U.S. district judge overseeing the desegregation of the Nashville-area schools, set an encouraging precedent in 1981. In deciding how to refocus the city's efforts to desegregate its schools, he took into account the results of the city's 10-year-old mandatory busing program.

He ruled that in certain circumstances--such as when a school system makes a good-faith effort to carry out a desegregation order--factors other than racial balance should be considered in deciding how to reshape the desegregation effort. He examined the educational, economic, and social costs of a decade of busing in the city and concluded they were too great. No comprehensive busing plan, he further concluded, could effectively desegregate the area's schools.

But last July, the U.S. Court of Appeals for the Sixth Circuit rejected Judge Wiseman's plan for increased emphasis on neighborhood schools and remedial instruction in predominantly black schools. The appellate court ruled that racial balance is the only legitimate consideration in the crafting of desegregation plans. In January, the U.S. Supreme Court, in refusing to review the case, missed an opportunity to decide the reasonableness of Judge Wiseman's important step.

Nonetheless, the Supreme Court has never said that a busing order could not be modified to reflect a school district's experience in implementing that order. In fact, its decisions seem to suggest just the opposite; namely, that a desegregation plan ought to be modified to achieve more effective desegregation. The rulings suggest that the Sixth Circuit was too rigid in its insistence that racial imbalance in schools necessitates busing.

In Brown v. Board of Education, the Court struck down governmentally imposed racial segregation in public schools. The 1968 case of Green v. County School Board of New Kent County established the principle that school boards governing previously segregated school systems had an "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch."

In 1971, in Swann v. Charlotte-Mecklenburg County Board of Education, the Justices set forth the principle that courts would look at the actual effects of a desegregation plan in order to judge its adequacy, even though not every school in a system necessarily had to be desegregated for a plan to be satisfactory. The Swann decision recognized mandatory pupil reassignments as an acceptable "starting point" for desegregating schools.

But how long must a Swann mandatory-busing "starting point" be maintained?

Court precedent suggests three situations that may lead to the legal dismantling of a comprehensive busing plan. One, obviously, would be the attainment of a desegregated school system. The Court made this assertion in 1976 in Pasadena City Board of Education v. Spangler.

This issue in not applicable in the Nashville case. Judge Wiseman found that the city's 1971 desegregation plan itself impeded integration efforts because it excluded from its coverage predominantly white suburbs in the outskirts of Davidson County and placed a disproportionate burden of busing on black children. Thus "the good-faith efforts of the school board in the implementation of the court order" amounted to unconstitutional segregation.

Second, the continued disruption of a school district's educational processes, associated with interracial violence and decreasing test scores, may also allow for the dismantling of a Swann-like remedy. In Swann, the Court said that a desegregation remedy may be limited if it otherwise would either risk "the health of the children or significantly impinge on the educational process." No court has ever rejected a desegregation plan on these grounds. Nashville similarly does not involve such an occurrence.

Third, a comprehensive desegregation plan could be terminated if it did not satisfy the Green mandate that a school board devise a plan "that promised realistically to work ... now." This was the legal basis of Judge Wiseman's plan to limit the use of busing in Nashville.

Again, what was unique about his ruling was his decision to assess the effectiveness of the city's earlier busing order and alter it in light of its effectiveness. He held that an analysis of the school board's efforts in implementing the desegregation plan put in place in 1971 would provide an accurate assessment of future desegregation plans because the efforts were made in good faith and undertaken over an extended period of time.

Based on that analysis of "nine years of zoning and busing to achieve a desegregated system and the changes that have taken place in the community and in the attitude manifested by the School Board," Judgen concluded that the economic, educational, and social costs of the desegregation plan already in place were too great. He also said a Swann-like remedy was inappropriate because it was unlikely that it could achieve a racially balanced school system and because comprehensive mandatory busing would place a disproportionate burden on black students.

So instead of recrafting a "traditional" busing remedy, he devised a different type of desegregation remedy, one that would place a greater emphasis on considerations of educational quality.

The Wiseman plan included a return to neighborhood schools for all students in kindergarten through 4th grade; construction of a middle school "tier" for 5th- through 8th-grade students, with at least 15-percent white or black enrollment in each school; and creation of an open-zone, selective "magnet" school for gifted and talented middle- and high-school students. His plan also included provisions for the implementation of expanded multi-cultural education programs to compensate for instances of racial isolation resulting from new attendance zones and the return to neighborhood schools in kindergarten through 4th grade.

However, the Sixth Circuit appellate court was unbending in its insistence that a school district presently subject to a desegregation order could not deviate from attention to school-by-school racial balance in modifying a pre-existing desegregation plan. It ruled that the long-term efforts of school boards trying to implement mandatory busing plans were legally insignificant. But such a holding is, at least on the surface, at odds with Swann, which, again, viewed student-population ratios only as an appropriate starting point in the crafting of a desegregation remedy.

Clearly, the Sixth Circuit has misunderstood the uniqueness of the Nashville case. The city's school board properly points out that it "is not a case involving the imposition of a desegregation plan upon a system that is segregated and is trying to achieve desegregation ab initio [from the beginning]."

In such a situation, a presumption might very well exist in favor of pupil-transportation plans that use black-white student-population ratios as a "starting point." But the Nashville case involves much more. It involves lessons that have been learned over the past 10 years--lessons that shed light on the effectiveness of future desegregation plans. Increasingly, this will also be the case in other cities with long-running desegregation programs.

Such experience cannot and ought not be ignored. Otherwise, pupil-transportation remedies will become the end of desegregation litigation and not the means of eliminating dual school systems that deprive black pupils of equal educational opportunity.

Vol. 02, Issue 24, Page 24, 20

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