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Published in Print: June 24, 1998, as Legal Issues Complicate Efforts To Integrate School Staffs

Legal Issues Complicate Efforts To Integrate School Staffs

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Shortly after a federal judge declared this city's schools officially desegregated in 1995, the school board here sent a message to anyone wondering whether its commitment to affirmative action would outlive the court order that had held sway for the past two decades.

Not only did the board resolve that one of every five staff slots in the district should continue to be held by nonwhites--as the court had formerly decreed--but it actually set a higher target of one out of three.

Now, as officials try to implement that policy nearly three years later, they fear they are skating on thin ice. Since the desegregation case was closed, school leaders worry about the legality of their efforts to boost the ranks of nonwhite employees.

"We've got a problem in terms of how you make that happen," said Jan Peters, an African-American school board member. "Everybody is very, very nervous as to how you do this."

Compared with busing and other student-assignment issues, the integration of school staffs has traditionally attracted relatively scant public attention. But it is by no means insignificant to the hundreds of school systems nationwide affected by past or present court orders.

"Staff desegregation is central to desegregation, and it has been from the beginning," said Leonard B. Stevens, a Stockbridge, Mass.-based consultant on race-related school issues.

Among districts recently released from long-running desegregation orders, Buffalo is not alone in affirming its commitment to maintain or increase the staff diversity it achieved while under court supervision. It is rare to find a school system that has barred all consideration of race or ethnicity in its personnel policies after being found unitary--a legal term meaning it is officially desegregated.

But in light of the attacks being waged against affirmative action in various contexts across the country--and in the absence of a definitive U.S. Supreme Court ruling on the subject--many districts also share Buffalo's concerns that its policies could be open to challenge at any time.

As a result of those uncertainties, many districts are striving to promote staff diversity without resorting to quotas or other means that could make them vulnerable to legal assault.

"The whole issue of what you do, when you attain unitary status, to maintain the gains you've made is one that's facing more and more districts," said Superintendent James Harris of the Buffalo schools. "It's a dilemma."

Rules Vary

In districts that were found liable for intentionally segregating their schools, an order to integrate staffs was usually part of the ensuing court decrees. Whether they applied to faculty only or to other staff as well varied from place to place.

Some districts, such as Buffalo, were required to achieve a specified level of minority staff members in the district as a whole. More typically, districts were required to stop lumping together teachers and students of the same race in individual schools.

A milestone came in 1970 in a federal appellate court ruling out of Jackson, Miss., in a case known as Singleton v. Jackson. That decision yielded the "Singleton rule," which established that, for a system to be desegregated, the racial breakdown of each school's teachers had to be "substantially the same" as that of the district's overall teaching force. The rule was later applied to numerous districts around the country.

Whatever form their staff-desegregation order took, many unitary districts say they aim to abide by the spirit if not the letter of their former decrees. Such districts include Broward County, Fla.; Christina, Del.; Denver; Norfolk, Va.; Oklahoma City; and Savannah-Chatham County, S.C.

Frank Sellew

"We don't have any quotas," said Frank Sellew, the interim superintendent in Norfolk. "But we consider it part of our job to keep some diversity on our faculty."

Some districts go further, maintaining numerical goals set in the days of court supervision. In Oklahoma City, for example, the district strives for minority representation in each school's staff ranging from 27 percent to 47 percent.

"It's been done so often in the district and for so many years," said Linda S. Brown, the director of employment services, "that administrators know that it just works better for the children and the staff out there if we have a racially balanced staff."

Resegregation Foreseen

Still, some desegregation advocates are not reassured. They argue that districts that had trouble integrating their workforces under court order are even less likely to do so on their own. Beyond that, they note that most formerly segregated districts contain far smaller proportions of minority teachers than minority students, a situation they say is less likely to improve without court-imposed pressure.

"Even districts that are not unitary are regressing on teacher desegregation," said Robert A. Dentler, a desegregation expert and professor emeritus of sociology at the University of Massachusetts Boston. "It's a setback of major proportions and is part of the resegregation story."

Mr. Dentler points to DeKalb County, Ga., where he served as a witness for the desegregation plaintiffs, as a district that is ripe for such resegregation.

Before being released from court supervision in 1996, the suburban Atlanta district sought racial balance at individual schools. Now, officials there take the stance that staffing decisions must be devoid of racial considerations. The 89,000-student district's enrollment is now more than three-quarters black and less than 14 percent white.

Robert Tucker

"Race cannot be used as a factor," Robert L. Tucker, the district's executive director for employment services, said. "It's illegal."

In the past 18 months, at least two official complaints of reverse discrimination have arisen in DeKalb, with white job applicants charging that they were discriminated against, district officials said. The cases, whose details have not been made public, were settled in a manner favorable to the complainants, the officials said.

"It's against the law to discriminate based on race," said Gary M. Sams, the district's lawyer. "If we have a claim that a principal did that, then there's no point wasting money on legal fees."

Mr. Sams and Mr. Tucker said some principals have had difficulty adjusting to the district's colorblind policy. "It's been drilled into their heads for years to do it one way," Mr. Sams said, "and then all of a sudden there's a total sea change."

In the absence of race-conscious policies, Mr. Sams cited pressures that could lead to staff resegregation. Teachers often want to work near home, which over time can foster imbalances because of residential segregation, he said. Moreover, he added, parents in some largely African-American schools tend to want more black teachers and principals, which can work against equal distribution of minority staff members around the district.

Minority Shortage Cited

Administrators in DeKalb County and elsewhere say their efforts to maintain staff diversity are also hampered by a shortage of nonwhite candidates, especially in such fields as math and science. Still, many say minority recruitment is of growing importance, given the legal challenges to racial preferences around the nation.

Despite the prevalence of such attacks, experts say the Supreme Court has issued no ruling that establishes when and how school districts not under court order can use race in employment decisions. Fearing that a school case out of Piscataway, N.J., could yield a broad ruling against affirmative action in employment, civil rights groups engineered a settlement of the case last fall while it was pending before the high court. ("N.J. District Settles Case on Race Bias," Nov. 26, 1997.)

As a result, education lawyers are divided over just what unitary districts can and should be doing to promote staff diversity. While some agree with Mr. Sams, others argue that districts such as DeKalb that eliminate race from the employment equation are getting bad legal advice. "This notion that you can't be race-conscious at all is somebody's invention," said William L. Taylor, a Washington-based lawyer who represents plaintiffs in desegregation cases.

Janet L. Pulliam, a Little Rock, Ark., lawyer who represented the district as it desegregated, agrees that unitary districts can keep considering race, but says that the case for such a stance is not rock-solid.

"I think you can make a legal argument on both sides," she said. "It's not totally clear."

Buffalo school leaders are keenly aware of that uncertainty as they aim to hire and promote minority staff members, who now hold 28 percent of the jobs. If they weren't, the Buffalo Teachers Federation, among others, would be there to remind them.

Although the union objected over the years to aspects of the district's affirmative action plan, it had come to support it as long as the court case remained unresolved, said Philip Rumore, the president of the National Education Association affiliate. But now the union wants the 47,000-student district to make hiring decisions without regard to race or ethnicity. And Mr. Rumore said he has no indication it is doing otherwise.

"It's not a question of what you'd like to do, it's what the law will allow," he said. "If they are giving preference, we don't know about it."

Mary Glatt-Banks, Buffalo's director of instructional employment and affirmative action, said the system is trying to "keep the opportunities open to everyone," while also making "specific efforts to make sure that includes adequate minority representation."

"Our major focus is to make sure that minorities are aware of position opportunities," she said. "That's the real crux of it."

Vol. 17, Issue 41, Page 7

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