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Appeals Court Ordered To Re-Examine Ruling in Brown

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WASHINGTON--The U.S. Supreme Court last week set aside a 1989 appellate-court ruling that the Topeka, Kan., school system had not yet met its duty to desegregate more than 30 years after its central role in the historic Brown v. Board of Education decision.

The Justices ordered the U.S. Court of Appeals for the 10th Circuit to re-examine its ruling in light of the High Court's recent school-desegregation rulings in cases from Oklahoma City and DeKalb County, Ga.

In those cases--Board of Education of Oklahoma City v. Dowell, decided from 1991, and Freeman v. Pitts, decided last month--the Court was widely viewed as making it easier for school districts to win relief from federal court supervision of desegregation.

Separately, the Court last week also declined to accept an appeal stemming from Boston's school desegregation case. The Boston Teachers Union sought to limit a federal judge's minority-hiring order.

2-to-1 Ruling

In the Topeka case, the school district had appealed the 2-to-1 ruling by a panel of the 10th Circuit Court that the presence of racially identifiable schools meant that the school system must do more in order to become unitary, or fully desegregated.

The panel said that after instituting a desegregation plan in the 1950's, the Topeka schools had "exercised a form of benign neglect'' of racial conditions.

The Supreme Court had delayed ruling on the district's petition for nearly two years while it considered the Oklahoma and Georgia desegregation cases.

In the Oklahoma City case, the Court said judicial supervision of desegregration plans was not meant "to operate in perpetuity'' and that judges could release districts when they had desegregated "to the extent practicable.'' (See Education Week, Jan. 23, 1992.)

Last month, in the DeKalb County case, the Justices held that districts may be released from desegregation orders in stages and that they need not remedy racial imbalances caused by demographic changes if districts' actions did not contribute to those shifts. (See Education Week, April 8, 1992.)

Topeka school officials did not wait for the Supreme Court's landmark 1954 decision in their case to begin desegregating the system's schools. They began allowing blacks to attend two formerly all-white schools in 1953.

After the second Brown ruling in 1955, the district essentially adopted a neighborhood-school plan and began to close its formerly all-black schools. The district never adopted busing or other desegregation strategies, and the case never had a high degree of judicial intervention.

In 1979, a group of black parents and children led by Linda Brown Smith, who as a child was one of the original plaintiffs in the landmark case, intervened in Brown and asserted that the district had not met its mandate to fully desegregate.

After a 1986 trial, U.S. District Judge Richard D. Rogers ruled the next year that the district was unitary, despite the presence of schools with high proportions of black students. That ruling was overturned by the 10th Circuit panel. The district's appeal was Board of Education of Topeka v. Brown (Case No. 89-1681).

Gary Livingston, the Topeka school superintendent, said last week that he was optimistic that the system would once again be declared unitary.

Christopher A. Hansen, a lawyer with the American Civil Liberties Union who represents the black plaintiffs, said the 10th Circuit Court might find that the system must do more to desegregate, even in light of the High Court's order.

Boston Case

Meanwhile last week, the High Court let stand a final order in Boston's long-running desegregation case that requires the district to aim for a faculty that is 25 percent black and 10 percent other minorities.

U.S. District Judge W. Arthur Garrity Jr. included the minority-hiring goal in his final orders in the case in 1990.

Cognizant of the potential that layoffs could quickly destroy the desegregation plan's affirmative-action gains, Judge Garrity said his order would automatically end only after blacks and other minorities had achieved sufficient seniority such that a 3 percent seniority-based layoff would not drastically affect the percentage of minority teachers.

The Boston Teachers Union, an intervenor in the case, appealed the order, arguing that there should be a time limit on it and that the union's collective-bargaining agreement must take precedence at some point after the school district is no longer under court supervision.

The U.S. Court of Appeals for the First Circuit rejected the union's appeal, and the High Court last week refused to review it. The case was Boston Teachers Union v. Morgan (No. 90-1801).

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