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Published in Print: March 24, 1999, as In Black and White

In Black and White

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In 1899, on the threshold of a new century, a little-known court case out of Georgia set the tone for the battle against educational apartheid that was to emerge as one of America's most searing social struggles of the next 100 years.

Pleading poverty, the Augusta school board had shut down the public high school for blacks. The city's African-American residents fought the move all the way to the nation's highest court. Cumming v. Richmond County Board of Education, as it was known, marked the first time the U.S. Supreme Court had directly confronted the issue of racial discrimination in the schools.

Coming just three years after the famous 1896 ruling in Plessy v. Ferguson, which upheld a Louisiana law requiring "separate but equal" rail cars for blacks and whites, the Georgia case raised the question of how the justices would apply that principle to public education. For those who believed that "equal" should mean just that, the case offered a chance to establish that black schoolchildren deserved the same educational opportunities as anyone else.

From Colonial times until the early part of this century, roughly nine out of every 10 black Americans lived in the South. It was not until World War I that African-Americans began migrating north and west in any great numbers. Yet Southern blacks were not alone in suffering educational discrimination, nor in protesting it. The first lawsuit directly challenging school segregation, by most reckonings, arose in Ohio in 1834.

During the 19th century, nearly 100 court cases from 20 states and the District of Columbia challenged segregation or racial discrimination in schools, according to Kousser, a professor of history and social science at Caltech. In the North, blacks won a majority of those cases, contributing to a wave of state laws, starting in 1855 with a Massachusetts' law that prohibited segregation in public schools.

In the South, of course, matters were very different. Separate and unequal schools for whites and blacks--those lucky enough to attend school at all--were required by law throughout the first half of the 20th century.

In An American Dilemma, Gunnar Myrdal's landmark 1944 treatise on the plight of black Americans, the Swedish economist described the state of black public education in the South as marked "by miserably poor standards all around." ("Challenging the U.S. Conscience.")

"[A] complete lack of schools in some rural areas, an insufficient number of schools in other areas, a grave lack of equipment, a lack of enforcement of the truancy laws for Negroes, an inferior quality of teacher training, [and] differential payment to teachers" were just some of the conditions he cited. "As a consequence, Negro children come out of their school system--both elementary and secondary--very poorly educated."

NAACP Sets the Stage

Around 1930, the National Association for the Advancement of Colored People, which had been founded in 1909, began laying the groundwork for what eventually would blossom into a multipronged legal attack on Jim Crow education.

In 1934, Charles Hamilton Houston left his position as the dean of the Howard University law school in Washington to attack racial discrimination for the NAACP on several fronts, including education.

Two years later, a former prot‚g‚ of Houston's at Howard who had been essentially donating his services to the NAACP came on board full time. In Thurgood Marshall, the association gained a champion who would eventually lead it to historic victories in the Supreme Court, before himself breaking the color line on the court by becoming its first black justice.

From 1933 through World War II, the NAACP focused on two types of education lawsuits: challenging the exclusion of blacks from public graduate and professional schools, and attacking the practice of paying black public school teachers significantly less than their white counterparts.

In the late 1930s, those efforts began to pay off. In 1938, the Supreme Court found Missouri's failure to provide a law school for blacks unconstitutional, holding that the legitimacy of segregated institutions "rests wholly upon the equality" they offered the separated groups.

And in 1939, the high court let stand a ruling that struck down race-based differentials in teacher pay in a case from Norfolk, Va.

Despite those victories, inequities in graduate programs remained pervasive as the United States emerged from the Second World War. A sizable racial gap in teacher salaries in elementary and secondary schools also persisted in most Southern states.

"In the university cases, litigating equality in fact proved to be extremely time-consuming," writes Mark V. Tushnet in The NAACP's Legal Strategy Against Segregated Education, 1925-1950. "[I]n the salary cases, school boards developed methods of perpetuating unequal salaries for black and white teachers in which the criterion of race was submerged enough that successful attacks would be difficult."

Pressure Mounts

Up through World War II, the NAACP had taken on few challenges to the unequal school facilities in the Southern and Border states. After the war, however, pressure to contest those conditions grew as African-American parents increasingly became fed up with worn-out textbooks and ramshackle schools.

Still, finding plaintiffs willing to bring such suits was difficult, and there were conflicting views on how to proceed. A critical issue was whether the NAACP Legal Defense and Educational Fund, which had been formed in 1939 to handle the association's litigation campaign, should lend support to the kind of suits that had occasionally succeeded in winning better facilities within the context of segregation. NAACP strategists generally insisted on challenging the dual system of educating blacks and whites rather than pleading for better--but still separate--facilities.

At midcentury, the NAACP reached a turning point.

In June 1950, the Supreme Court issued decisions in two university cases on the same day, one involving the state law school in Texas and the other concerning graduate education programs in Oklahoma. The court declined in both cases to overturn the separate-but-equal doctrine established by Plessy. But in finding the programs that states offered blacks unconstitutional, the justices stressed that it was not just physical resources but such intangible qualities as a school's reputation and a student's chances to interact with classmates that determined whether the education offered blacks was in fact equal.

Buoyed by those rulings, Marshall and his staff decided the time was finally ripe for "an all-out attack" on segregation, from kindergarten through college.

Battle Is Joined

In the ensuing months, the battle opened on no fewer than five fronts.

Starting in early 1951, the NAACP coordinated lawsuits that directly challenged segregated schools in four states and the District of Columbia. By midsummer, lower-court judges had handed down rulings adverse to the plaintiffs in three of the cases: Bolling v. Sharpe in Washington; Briggs v. Elliott in Clarendon County, S.C.; and Brown v. Board of Education in Topeka, Kan. In March 1952, a three-judge panel followed suit in the Virginia case of Davis v. School Board of Prince Edward County.

Finally, the following month, fortune smiled on the NAACP with a ruling in a pair of companion suits in Delaware, the only place where the challenges proceeded in state court. In Belton v. Gebhart and Bulah v. Gebhart, Judge Collins Seitz ordered the plaintiffs admitted to white schools on the grounds that segregation as practiced in Delaware was unconstitutional.

"For the first time, a segregated white public school in America had been ordered by a court of law to admit black children," Kluger observes in Simple Justice.

Still, even Seitz stopped short of striking down segregation as such. Only the U.S. Supreme Court, he concluded, could overrule itself on that critical issue.

The chance to do that soon presented itself. Between June and November of 1952, the high court agreed to hear appeals in all five of the cases. The four state cases became known collectively as Brown v. Board of Education, which took its name from Oliver Brown, the lead Topeka plaintiff, who sued on behalf of his daughter Linda.

Following oral arguments in December 1952, it was clear that the justices were anything but united on whether to take the momentous step of overturning Plessy. So they deferred a decision, directing both sides in June 1953 to prepare for a second round of arguments in the fall.

In the interim, President Dwight D. Eisenhower named Gov. Earl Warren of California to take over as chief justice after the death of Fred Vinson Jr. The new chief justice was to succeed where his predecessor had failed in forging consensus on a fractured court.

On May 17, 1954, after hearing rearguments the previous December, Warren announced the court's unanimous opinion.

In the four state cases, the right of black children to equal protection of the laws, enshrined in the 14th Amendment in 1868, was violated by segregated public schools. And in the District of Columbia, which did not fall under the equal-protection clause, such schools violated the right to liberty guaranteed by the due-process clause of the 5th Amendment.

Citing the court's 1950 decisions in the university cases, the Brown opinion held that the intangible deprivations of opportunity arising from segregation at the graduate school level applied "with added force to children in grade and high schools."

"To separate them from others of similar age and qualifications solely because of their race," the ruling stated, "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone. ... We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

'All Deliberate Speed'

The door to equality had swung open.

But left hanging by the celebrated decision was the question of exactly how the thousands of school systems that separated children by race were to go about bringing them together.

Before answering it, the Supreme Court asked for another round of arguments. Finally, a year and two weeks after the opinion that has come to be known as Brown I, the justices issued a decision that cast aside the NAACP's plea for a one-year implementation deadline. Instead, they sent the cases back to lower courts with instructions to require the defendants to admit the plaintiffs "to public schools on a racially nondiscriminatory basis with all deliberate speed."

The lower courts were authorized to consider communities' desires to proceed "in a systematic and effective manner," but not to allow disagreement with its ruling to excuse inaction.

While the justices failed to specify in Brown II just what they meant by nondiscrimination, the NAACP at the time described it as the elimination of all considerations of color in the operation of the schools. In time, however, the organization's views, as well as those of subsequent Supreme Courts, were to change as it became clear that policies that were color-blind on their face could in fact perpetuate segregation.

Today, in the twilight of the legal crusade to desegregate schools, whether the Brown rulings should be read as outlawing race-conscious school policies, or as in fact requiring them to achieve racial balance, remains an unsettled and highly divisive question.

Resistance is Fierce

In the 21 states that allowed or required segregated schools, the Brown decisions were greeted with a mixture of alarm, disdain, resistance, and grudging compliance. In general, the backlash was mildest in the Border states, where some communities made a quick start at desegregating schools. Deep in the heart of Dixie, it was a different story. The spirit of what was called "massive resistance" in such states was captured in a "Southern Manifesto" issued by a majority of the region's congressional delegation in 1956. In it, the legislators pledged "to resist enforced integration by any lawful means." States also passed anti-integration laws that took such actions as denying public money to integrated schools and erecting barriers to black students hoping to transfer to white schools.

A showdown came in Little Rock, Ark., in September 1957, when Gov. Orval Faubus dispatched the National Guard to the city's Central High School to prevent enrollment of a handful of black students.

After a meeting with Eisenhower, Faubus relented. But three weeks later, pro-segregation protesters battled police outside the school. The president promptly federalized the state's National Guard and sent in additional troops to restore order.

If Little Rock showed Washington's willingness to wield a stick to squelch resistance to desegregation, a development some eight years later demonstrated the value of using a carrot.

In 1965, Congress passed the Elementary and Secondary Education Act, providing the first federal aid program for local school districts. Because the Civil Rights Act of 1964 had barred racial discrimination in programs receiving federal funds, the law suddenly provided a powerful incentive for complying with Brown.

"Schools were faced with the threat of not getting the money," Tushnet says. "So they capitulated and started genuine desegregation."

Real Progress Demanded

Into the 1960s, the Southern courts and communities inclined to comply with Brown generally had interpreted the ruling as demanding little more than lifting explicit policies that required separate schools.

In the absence of clear-cut guidelines from the high court, districts tended either to adopt "freedom of choice" plans allowing biracial enrollments or to draw neighborhood school boundaries that encompassed both black and white students. In reality, such plans afforded little genuine integration, as most students stayed in schools where their race predominated.

In 1968, the Supreme Court for the first time explicitly held that the test of a school district's desegregation plan was its effectiveness at producing mixed-race schools.

In a Virginia case, Green v. New Kent County School Board, the justices held that formerly segregated systems have an affirmative duty to eliminate racial discrimination "root and branch." And the duty applied not only to enrollment, but also to faculty, staff, transportation, extracurricular activities, and facilities. Those soon became known as the six "Green factors," and were later used by courts to gauge whether a district had met its obligations to desegregate.

Three years later, the court took its mandate for affirmative integration a giant step further in a case from Charlotte, N.C.

Noting that lower courts had proceeded largely by "trial and error" since Brown, the court set out in Swann v. Charlotte-Mecklenburg Board of Education to provide more specific guidelines. The result was an endorsement of aggressive steps to overcome the residential segregation so common in urban areas, including cross-county busing, redrawn attendance zones, and pairing of city and suburban schools.

In upholding busing, which was highly unpopular politically, the justices concluded that the ban on court-ordered busing in the Civil Rights Act of 1964 did not apply in cases of former state-imposed segregation. "Desegregation cannot be limited to the walk-in school," the court held.

In Swann, the court also authorized racial quotas for student assignment, though the decision said such quotas should be considered a starting point and not rigid requirements. It also held that not every school had to reflect the districtwide racial mix or adjust its ratios annually to offset demographic changes.

Despite the latter qualifications, the message Swann sent was that school systems must achieve as much racial mixing as possible and that busing was an important tool for achieving that goal. The ruling set off a wave of busing plans throughout the South. In many cases these plans fueled white flight from core cities. But they also yielded greater racial mixing in many Southern schools.

Dividing Line Blurs

Starting with the Brown decision, the Supreme Court consistently distinguished between segregation due to a law or other official act--de jure segregation--and the de facto segregation arising from forces that are ostensibly beyond a school system's control, such as private housing choices. And it held that only the former is forbidden.

But in the years following the Swann ruling, the line between the two began to blur.

An important step in that process came in 1973, when the Supreme Court for the first time extended the duty to desegregate to a district outside the Southern and Border states where schools had not been segregated by law.

Though Denver had never had an official policy of separating the races, the court held in Keyes v. Denver School District that the Colorado district was nevertheless guilty of de jure segregation. Because school officials had taken steps over the years that contributed to the isolation of blacks in some schools, the court held that the whole district should desegregate.

"While the Keyes decision left the de facto-de jure distinction alive in theory, it had much less practical significance," Armor writes in Forced Justice, his 1995 book on desegregation law, "because few school districts at that time could meet a burden of proving that they had not contributed to housing segregation or had not intentionally adopted a neighborhood school policy."

As the Keyes decision opened the door to court-ordered desegregation outside the South, it soon became clear that Northern communities could be just as unwelcoming as their Southern counterparts.

In Boston, a federal judge's busing order in June 1974 turned some neighborhoods--and their schools--into battlegrounds. The turmoil and violence included assaults on busloads of black children by rioting rock-throwers, in-school stabbings, and clashes between police and protesters of both races. The exodus of whites from the city school system in the mid-1970s has never been reversed.

A Turning Point in Detroit

The same year that Judge W. Arthur Garrity Jr. handed down the Boston ruling that so enraged anti-busing forces, the Supreme Court delivered the integration movement its first major setback since the pre-Brown era. By a 5-4 vote that revealed an enduring philosophical split on the court, the justices in Milliken v. Bradley struck down a plan to merge the Detroit schools with 53 largely white suburban districts.

Holding that "school district lines may not be casually ignored or treated as a mere administrative convenience," the court ordered a new plan confined to the city, where student enrollment was by then more than two-thirds black.

The district responded with a plan that featured partially state-funded compensatory programs for students in overwhelmingly black schools. In 1977, the Supreme Court upheld the plan, prompting broader use around the country of remedial programs and extra funding for racially isolated schools as a remedy for illegal segregation.

In a strongly worded dissent, Justice Marshall predicted that the nation would ultimately regret allowing "our great metropolitan areas to be divided up each into two cities--one white, the other black."

Integration advocates have concluded that the ruling had precisely this effect, by making it far harder to address segregation in the many metropolitan areas where blacks and other minorities are concentrated in cities and whites in the suburbs.

"Rejection of city-suburban desegregation brought an end to the period of rapidly increasing school desegregation," Orfield writes in his 1996 book Dismantling Desegregation. And because it "slammed the door on the only possible desegregation strategy for cities with few whites," Orfield argues, "it shifted the attention of urban educators and civil rights lawyers away from desegregation and toward other approaches for helping minority children confined to segregated and inferior city schools."

New Issues Emerge

In the quarter-century since the first Milliken ruling, cross-currents in the courts, the social sciences, and the political arena have pushed desegregation policy in a number of new directions.

Desegregation cases continued to be filed and won in communities across the country well into the 1980s. But at the same time, desegregation plans that had been adopted years earlier were modified in many districts, often to de-emphasize compulsory busing in favor of voluntary options such as magnet schools and "controlled choice." These trends were fueled by evidence that desegregation was contributing to white flight and thereby frustrating efforts to achieve racial balance.

Segregation within schools, rather than between them, also emerged as a problem. Black students and other minority youngsters attending schools that were racially balanced overall routinely found themselves in less challenging courses.

Meanwhile, many districts that had started desegregating years earlier saw their cases wind down, and in some instances end altogether.

As districts sought an end to court oversight, educators and judges were forced to grapple with questions that had persisted since Brown: What standards should be used to determine whether a district is free of discrimination? And how should districts maintain racial balance once a court has declared them "unitary," a legal term meaning they have eradicated the dual system of black-white schooling?

In 1976, the Supreme Court addressed the latter question in a ruling that suggested that achieving racial balance was more of a temporary obligation than a perennial one. In Pasadena City Board of Education v. Spangler, the court held that the California district did not need to readjust its attendance zones each year to preserve court-ordered racial ratios.

When To Call It Quits

Whether schools should be required to maintain racial balance indefinitely emerged as a central issue in several high-profile cases during the 1980s.

In 1986, for example, the Supreme Court let stand a ruling that allowed Norfolk to return to neighborhood elementary schools after being declared unitary, even though it meant that some schools in the southeastern Virginia city would become overwhelmingly black. In Austin, Texas, a federal appeals court permitted a similar move, rejecting the argument that the restoration of neighborhood schools was discriminatory.

But in Oklahoma City, an appeals court blocked the district's plan to reinstitute neighborhood schools, many of which would have been more segregated. That case yielded a major Supreme Court ruling in 1991 that gave new guidance to lower courts on the issues of unitary status and districts' continuing obligations after achieving it.

In Board of Education of Oklahoma City v. Dowell, the high court gave its blessing to the return to neighborhood schools, stressing that desegregation decrees were designed to be temporary. And it established two new criteria for deciding when such orders should be ended: whether the district has complied in good faith, and whether it has remedied past discrimination "as far as practicable."

As one of three dissenting justices, Thurgood Marshall argued that desegregation orders should remain in effect so long as "any condition that perpetuates the message of racial inferiority" persists, including racially imbalanced schools. It was his last word in a school segregation case before retiring from the bench. Exactly 40 years had passed since he had launched the historic lawsuits intended to abolish segregated schooling forever.

Court's Role Declining

Since Dowell, two more Supreme Court decisions have echoed its message that the federal courts are getting out of the business of desegregating schools. In 1992, the justices in Freeman v. Pitts warned against overstating the consequences of "past wrongs to the black race." In that case from DeKalb County, Ga., they argued that the causes of segregation--including demographic change--may be beyond the reach of the courts, and that restoring local control of the schools is of utmost importance.

Then, in 1995, a divided court decreed in Missouri v. Jenkins that a judge had gone too far in ordering an ambitious desegregation plan in Kansas City, Mo., designed to woo suburban whites to inner-city magnet schools.

The majority labeled the plan an end run around the ban on unjustified interdistrict remedies articulated in Milliken I. And they dismissed the use of testing data showing that Kansas City students were performing below national norms as justification for continuing the costly plan.

The ruling was a big win for Missouri, which had been found jointly liable for segregation in the city schools and had been footing much of the bill for the plan for a decade. It set in motion the state's recent exit from its desegregation obligations in Kansas City and a broad scaling-back of the unusually extensive magnet program there.

The Jenkins decision marked the first and only time Justice Clarence Thomas has participated in a major school segregation case. His spirited concurring opinion underscored how deeply his views differed from those of the man he replaced as the court's sole African-American.

Arguing that Brown had never meant to brand predominantly black schools inferior, Thomas urged abandonment of the view that "blacks cannot succeed without the benefit of the company of whites."

"Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment," he wrote. "[B]lack schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement."

Disillusionment Abounds

Such views are nothing new. Ever since the NAACP took aim at segregation, there have been strong African-American voices in favor of seeking educational excellence for black schools rather than integration with whites.

Once desegregation was under way, moreover, the debate resurfaced.

Starting in the mid-1970s, a schism has existed in the social science community--as well as the political arena--over whether desegregation has been as beneficial as its proponents suggest in such areas as student achievement and reduction of racial prejudice.

This division has coincided with the perception among many blacks that they paid too high a price for desegregation. After all, it has often meant the busing of black children out of their neighborhoods at a younger age, in greater numbers, and for longer periods of time than white children.

A poll of black and white parents released in 1998 by Public Agenda and the Public Education Network found that eight in 10 black parents considered it important that their children's schools be racially integrated, as did nearly seven in 10 white parents.

But 68 percent of the black parents polled said the nation had pursued the goal of integration in the wrong way, and just 55 percent supported busing to achieve better racial balance. Nearly three-quarters said schools had neglected instructional quality in the quest for integration.

Scholars debate the reasons for such mixed feelings toward desegregation. The education historian Diane Ravitch, for one, views the multiplicity of views as evidence "not of a dissolution of the movement for black equality but of the success of the social revolution initiated by the Brown decision."

But the Harvard University sociologist Charles V. Willie takes a dimmer view.

"Blacks have been betrayed," he says. "Whites took the concept of integration and hijacked it. Furthermore, they dropped the educational components that blacks had assumed would go hand in hand with integration. It was like turning to the fox that had been caught stealing the chickens and then saying, 'Fox, develop a plan to secure the chicken house.' "

Successes and Frustrations

Mr. Willie's disappointment is shared by many.

"The century-long perspective is that there was a struggle to achieve integrated schools, and it has ended without integration having been achieved," says Tushnet, a constitutional historian at Georgetown University and a former law clerk to Justice Marshall. "It's been essentially a failure."

Like Tushnet, Theodore M. Shaw of the NAACP Legal Defense and Educational Fund sees the relevance of school desegregation receding in the political, legal, and educational realms.

"I think most people, regardless of race, do not think of desegregation as an important goal," says Shaw, the defense fund's associate director-counsel. "It's thought of as being a '60s-type, touchy-feely, somewhat naive, liberal sentiment, but it doesn't have any real place in the hard reality of the '90s. And I think that that's a shame."

Indisputably, African-Americans as a whole are better off educationally at century's end than in 1900. Yet scholars and educators disagree over how much of their gains can be attributed to desegregation. And as the stubborn achievement gap between black and white students underscores, in many respects they still have a long way to go.

Still, some who survey the distance between principle and practice say the story cannot end here.

Efforts to make the ideals of Brown a reality may have been thwarted and gone awry, they believe, but that doesn't mean such attempts should be abandoned.

There remain plenty of successes to celebrate--such as the archipelago of sparkling magnet schools that dot the nation's cities--and it is these triumphs that many integration advocates believe should be showcased and replicated.

If not, they predict, the nation may well lose the progress it has achieved and slide back toward a more segregated and unequal tomorrow.

"In American race relations, the bridge from the 20th century may be leading back into the 19th century," warned a 1997 report on school resegregation by the Harvard Project on School Desegregation, headed by Orfield. "There is no evidence that separate but equal today works any more than it did a century ago."

PHOTO: Police stand guard as students arrive to integrate the predominantly white South Boston (Mass.) High School in September 1974.

Vol. 18, Issue 28, Page 31

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