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High Court To Rule On When Districts End 'Dual' Status

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Washington--Thirty-five years after the U.S. Supreme Court ruled that school districts have "an affirmative duty" to dismantle dual systems for white and black students, the Court is now being asked to decide, in four separate cases, how to determine when that duty has been met.

The number of pending cases in this area rose to four last week, when lawyers for districts in Denver and Topeka, Kan., filed papers seeking the High Court's review of lower-court decisions finding they had not yet fulfilled their obligation to desegregate.

The Justices have already announced that they will review a similar decision in the Oklahoma City, Okla., school-desegregation case, but have yet to decide whether they will grant a petition for review filed in February by lawyers for the DeKalb County, Ga., public schools.

Although the facts and the legal issues raised in these cases vary considerably, at the center of each lies a philosophical and legal question that has been debated at great length during the past decade: What did the Court mean when it said that school districts must eradicate "all vestiges" of illegal discrimination?

At stake in the debate's resolution is whether hundreds of school districts will continue to operate under judicial supervision, or whether such oversight will be deemed no longer necessary to cure the ills caused by almost 100 years of "separate but equal" schools.

The High Court has thus far offered little guidance on these issues, with the result that lower courts have varied widely in their interpretation of the law.

Many school officials, including those represented by the National School Boards Association, are hoping that the Court will choose to issue a set of standards for ending school-desegregation cases, if for no other reason than to clarify their responsibilities under existing law.

Many conservatives are also hoping that the Court will resolve the issue, because they believe many federal judges have gone too far in assuming control over decisions best left to the discretion of local school officials.

"I think a rule is essential," said Clint Bollick, a former lawyer in the Justice Department who currently heads the Landmark Legal Foundation's Center for Civil Rights, which provides legal assistance in support of conservative economic and educational principles.

"Absent a uniform rule," he said, "school districts cannot possibly conform their actions to a general standard. We will have nothing but more and more litigation."

Some liberals, on the other hand, hope the Court will not choose to address the issue at this time.

Privately, some express fears that the Supreme Court's conservative majority could use these cases to erode the gains won for minorities over the past several decades.

Others argue that the nation does not yet have enough experience with school desegregation to determine when and if it has accomplished its objectives.

"A uniform definition will be desirable at some point, but the stew needs to simmer a while longer," said Arthur Benson 2nd, a lawyer who represents black plaintiffs in the Kansas City, Mo., desegregation case.

"As we get into the end game of a number of plans, the database of experience will expand exponentially in this decade," he said. "Having that evidence would better inform" the debate on when desegregation should end.

Although the Supreme Court outlawed "separate but equal" schools in 1954, the nation's experience with comprehensive desegregation remedies, including mandatory busing, is much shorter.

It was not until 1971, in Swann v. Charlotte Mecklenburg Board of Education, that the Court explicitly endorsed the use of racial quotas, mandatory busing, and drastic gerrymandering to redress violations of the constitutional rights of minority students.

The Swann decision gave federal judges the authority to impose desegregation plans when local officials refused to develop their own, and touched off a wave of mandatory-busing orders that were vehemently opposed in many communities.

From that point until the late 1970's, most of the Court's rulings continued to elaborate on two major issues: the standards under which a school district could be found guilty of illegal discrimination, and the nature of the remedies that could be used to correct those violations.

The issue of when the desegregation process should be over has emerged as a major topic of debate only in recent years.

The Supreme Court has, however, indicated in several opinions that the process would have a conclusion, and that school boards could anticipate that they would one day be freed from court supervision.

It was in a 1968 case, Green v. County School Board of New Kent County, that the Court first introduced the concept of "unitary" as the ultimate goal of a desegregation remedy.

The term was apparently chosen because it is the linguistic opposite of "dual," the term the Court had used to refer to racially segregated school systems.

In Green, the Court made it clear that dual student assignments were not the only facet of a district's operation that needed to be corrected before it could be declared unitary, but that the districts were also obligated to correct violations in faculty and staff hiring and assignments, curriculum, transportation, extracurricular activities, and facilities.

But the Court did not in Green, or in any subsequent opinions, define exactly what standards should be used to determine if a district had achieved unitary status, and what the consequences of that finding are.

Thus "a lot of school districts got unitary status without much attention being paid to it," said William L. Taylor, a long-time civil-rights lawyer.

Lawyers for minority plaintiffs, he said, "thought that it was simply a minor change in the status of the district, that it meant that the case was not on the court's active docket any more."

"Only when people began to dismantle desegregation plans did they realize that unitary status could mean the end of their cases," said Mr. Taylor.

The stakes in the debate changed dramatically in the 1980's, after officials of the Reagan Administration began to insist that a grant of ''uni8tary status" entitled a district to be freed from court supervision.

And as a logical extension, they argued that districts that had been declared unitary should be free to take any action, including the dismantling of a court-ordered desegregation plan, that was not motivated by an intent to discriminate against minorities.

They presented that point of view in several school-desegregation cases that were then moving through the courts, including those involving districts in Oklahoma City and Norfolk, Va.

But the appeals courts hearing those two cases came to dramatically different conclusions, despite the factual and historical similarities underlying them.

In the Norfolk case, the U.S. Court of Appeals for the Fourth Circuit found that the school district was free to end busing in its elementary grades, because an earlier grant of unitary status had freed local officials from the obligation of adhering to previous court orders in the case.

But the U.S. Court of Appeals for the 10th Circuit, ruling in the Oklahoma City case, found that the granting of unitary status in that case did not end the board's obligation to comply with its mandatory desegregation plan.

A crucial issue in both of these cases--and in all of the current cases--is the legal principle known as "the burden of proof."

The Fourth Circuit decided that, once Norfolk was declared unitary, black plaintiffs bore the burden of proving that the school board's decision to return to neighborhood schools was motivated by an intent to discriminate against minorities.

The 10th Circuit, on the other hand, ruled that Oklahoma City school officials bore the burden of proving that their return to neighborhood schools in elementary grades was motivated by legitimate concerns other than discrimination.

While the distinction appears to be a fine one, the allocation of the burden of proof has often been identified as the most significant decision in civil-rights cases.

"Once you attach the burden of proof, the result will follow like night follows day," said Mark G. Yudof, dean of the school of law at the University of Texas.

Many observers assumed that the Supreme Court would hear the Norfolk and Oklahoma City cases to resolve the apparent conflict between the appeals circuits, but the Court defied predictions, and allowed both decisions to stand.

The primary result of those decisions has been that lawyers representing black plaintiffs no longer generally allow a judge's finding that a district has achieved unitary status to go unchallenged.

But the rulings have also sparked considerable debate in the legal and civil-rights communities over what standards should be used to determine whether a district has achieved unitary status, and what the consequences of such a finding are.

More than a dozen prominent experts have tackled this issue in law-review articles in recent years, as have the lawyers working on lawsuits where the issues have been raised.

The ambiguity of the language used by the Supreme Court in disel15lcussing unitary status in previous cases has allowed widely varying interpretations to surface.

Basically, the extremes of interpretation can be characterized as "short-term"--the belief that desegregation can be fully accomplished in very few years--and "long term"--the belief that it takes many years to end the patterns of discrimination established over the past century.

Adherents of the short-term view hold that unitary status "should be granted at the point at which a district's schools are not readily identifiable as black or white schools--a point that is typically reached fairly early in the desegregation process," said Mr. Bollick.

The Supreme Court, he noted, has said that "school boards are entrusted with the primary responsibility of acting in the best interests of their schoolchildren," which offers a compelling reason for ending judicial oversight as rapidly as possible.

In this scenario, which has been accepted by a few courts, a district could conceivably become "unitary" immediately after it implemented a desegregation plan.

The Reagan Administration generally advocated this view, although it allowed that courts could have a legitimate role in monitoring compliance with a desegregation plan during its first three years of implementation.

Nathaniel Douglas, chief of the education section of the Justice Department's civil-rights division, said in a recent interview that the department has not modified its stand since President Bush took office.

But the Bush Administration has been much less aggressive in advocating this point of view before the courts, and surprised many observers by not filing a brief urging the High Court to hear the Oklahoma City case.

And the Administration could make it much more difficult for districts to attain unitary status, while still adhering to the short-term view, by stiffening its standards for evaluating both the potential effectiveness of a desegregation plan, as well as how "fully and faithfully" it has been implemented.

Traditional civil-rights advocates argue that the short-term view shortchanges the rights of minority schoolchildren, because the "vestiges" of illegal racial discrimination remain pervasive in the public schools.

They argue that an early end to these cases would allow school districts to dismantle desegregation plans before they have had sufficient time to work.

For example, they say that breaking down public perceptions of certain schools as "white schools" or "black schools" could take as much as a generation to accomplish.

And because school boards often decided where and how large to build schools based on their desire to maintain a dual system, the advocates say, a return to neighborhood schools almost automatically ensures that some of these schools will once again become one-race enclaves because of housing patterns.

Some even argue that the housing patterns themselves are a vestige of school segregation, because whites rarely bought property near black schools, and vice versa.

"Until the housing patterns are at least eased in some significant way, I would think a district has not achieved unitary status," said Mr. Taylor.

This is not an impossible goal to meet, he said, "because there are some cases where [discriminatory] housing patterns have been ameliorated to some degree, including in Charlotte [N.C.]."

Proponents of the long-term view argue that mere compliance with a court-approved desegregation plan is not sufficient to remedy a constitutional violation.

"My own view is that one should really take the Court at its word and look to see if all the things that can be traced to the original condition of enforced segregation have been dealt with," Mr. Taylor said.

Some adherents of the long-term view also argue that a finding that a district has achieved "unitary status" should not automatically terminate a court's jurisdiction in a case, but that federal judges should have the authority to issue permanent injunctions barring a return to a segregated school system.

School districts should not be permitted "to dismantle the plan which earned unitary status and return to the same method of assigning students they used prior to the initial federal court order," said Norman Chachkin, a lawyer with the naacp Legal Defense and Educational Fund.

The 10th Circuit took a long-term view in the Oklahoma City case, ruling that desegregation orders do not differ from injunctions issued in other civil cases. In order to successfully petition for its plan to be modified or eliminated, the panel ruled, a district must make "a clear showing of a grievous wrong evoked by new and unforeseen conditions."

Underlying the debate between advocates of the short- and long-term views of school-desegregation is an additional disagreement over how closely districts must adhere to numerical racial quotas to achieve compliance.

In many cases, court-ordered desegregation plans have failed to meet the numeric goals established by the court overseeing the case.

Some argue that such shortcomings, if outside of the district's control, should not prevent them from attaining unitary status.

Others hold the view that a desegregation order should not be lifted until all its goals are met.

The Supreme Court, in Pasadena v. Spangler, gave some guidance on this issue, ruling that courts may not force districts to adjust plans to correct imbalances caused by demographic shifts or other factors outside their control.

Whether federal judges should also examine the educational performance of minority students in evaluating desegregation plans is a further point of debate.

Some say that the Supreme Court, in Milliken v. Bradley II, added educational performance to the six Green requirements that a district must meet before obtaining unitary status.

Others say the High Court, in Green, ruled only that districts must correct deficiencies in the curriculum if they were found to result in lessened opportunities for minority students.

Most courts and many experts take a position that falls somewhere between the short- and long-term views.

Several experts noted that the Court could choose not to resolve the broader issues at this time, and could instead rule narrowly on the facts of any of the cases it decides to hear.

Where the Court ultimately comes out in the debate could depend largely on the views of Associate Justice Byron R. White, who reinforced his position as the swing vote on school-desegregation cases in the recent Kansas City ruling. (See Education Week, April 25, 1990.)

"Justice White is definitely the pivotal vote," said Mr. Bollick.

"Justice White tends to be moderate or conservative on most issues, but he tends to vote with the liberal or progressive wing on integration matters," said Mr. Yudof. The Kansas City decision, he added, "may in fact reflect how the Court will come out in these cases."

If the Court adopts the long-term view, its ruling is not likely to have an immediate impact beyond making it more difficult for districts like Cleveland and Dallas, which are seeking unitary status, to achieve it.

Such a ruling could prevent the dismantling of desegregation plans, and, in some cases, would make it easier for minorities to win further relief.

A ruling upholding the short-term view could have a much more dramatic impact on the future course of desegregation in hundreds of school districts.

"I think there would be substantially more segregation in many school districts," if the Court were to adopt this view, said Mr. Yudof.

But such a ruling would not mean that school officials would necessarily be free to dismantle their desegregation plans, said Mr. Bollick.

"In a case where a district completely dismantled a desegregation plan, it would have a lot of explaining to do," he said. Such a move, he insisted, "would by itself be very strong circumstantial evidence of a discriminatory motive."

"The stakes are pretty large," said Mr. Taylor. "The issue is whether one says the civil-rights job is done, and there is no need for affirmative remedies anymore."

"While many communities have made a lot of progress," he added, "there are very few who could say in good conscience that they have eliminated all the effects of past racism."

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