School-Law Experts See Limited Impact of Ruling

By Peter Schmidt — April 08, 1992 4 min read

School-law experts agreed last week that the impact of the U.S. Supreme Court’s decision in the DeKalb County, Ga., school-desegregation case will be relatively mild.

Lawyers on both sides of the desegregation debate described the ruling as being narrowly tailored, steeped in precedent, and heavily based on the facts of the case.

“I don’t think it changes the basic rules,’' said Alfred A. Lindseth, a lawyer from Atlanta who has represented several school districts in desegregation cases, of the Court’s decision in Freeman v. Pitts.

But, he added, “I think it clarifies a lot of things. I think it will be useful to school districts that have desegregated, that have implemented their plans in good faith, and that want to be released from court supervision.’'

Dennis Courtland Hayes, the general counsel for the National Association for the Advancement of Colored People, said the decision “represents a marked retreat from the Court’s commitment to desegregation.’' But he noted that only a handful of districts are positioned to take advantage of it because few have experienced as major and rapid shifts in population after attempting to desegregate as did the DeKalb system.

“I don’t think it means districts are going to rush to drop busing plans,’' said David J. Armor, an expert on busing for desegregation purposes who testified on behalf of the DeKalb district.

“But clearly,’' Mr. Armor said, “the legal path has been cleared for any district that wants to get out from under court supervision or a busing plan to do so.’'

“What the Court has done here is to re-articulate and refine existing doctrine,’' said David S. Tatel, a lawyer with the Washington firm Hogan & Hartson.

The DeKalb decision, Mr. Tatel said, continues a process begun by the Court in 1976 in Pasadena City Board of Education v. Spangler and continued in its ruling last year in Board of Education of Oklahoma City v. Dowell of “defining with increasing specificity the standards for ending court supervision over school systems.’'

Mr. Tatel called the majority opinion written by Justice Anthony M. Kennedy a “moderate, in-between position’’ that “reiterates the conservative view that these plans might end but articulates a pretty strict standard for demonstrating good-faith compliance.’'

Step by Step

School-law experts said the Court clearly sided with school districts by deciding that federal courts may release school systems from supervision in stages, relinquishing control over areas such as student or faculty assignment as desegregation in each area is achieved.

Mr. Armor noted that the ruling settles a “very contentious’’ split between the U.S. Court of Appeals for the First Circuit, which has allowing districts to be released from court supervision incrementally, and the U.S. Court of Appeals for the 11th Circuit, which has required school systems to meet all court requirements simultaneously for several years as a condition for release from judicial oversight.

The Court spoke less clearly, the experts said, on the issue of districts’ responsibility for correcting racial imbalances caused by population shifts.

Five of the eight Justices who heard the case agreed that districts did not have to correct imbalances caused by circumstances beyond their control. Justice Antonin Scalia wrote a concurring opinion that questioned whether any remaining racial imbalances in schools can be attributed to discriminatory government policies that were struck down years ago.

The majority opinion “clearly says that you can’t hold the school board responsible for all of the problems of society,’' Mr. Lindseth said. “You can’t expect the school board or even the district court to solve problems caused by demographic changes.’'

But in a separate consenting opinion, Justices Harry A. Blackmun, John Paul Stevens, and Sandra Day O’Connor noted that school districts’ policies can influence housing patterns, and directed the appeals court in the DeKalb case to re-examine whether the suburban Atlanta system took any action that influenced the creation of racially identifiable neighborhoods.

‘Right Down the Middle’

“It looks to me like the issue divides the Court right down the middle,’' said Gary Orfield, a professor of education and social policy at Harvard University and a prominent school-desegregation researcher.

“One side says negative residential segregation just happens, and schools can’t be held accountable for it,’' he said. “The other side says schools are not just innocent bystanders. They have an effect too, and, if they have done things that affect residential changes, they can be held accountable.’'

Mr. Orfield said the decision was likely to give more power to district courts by giving significant weight to their decisions on how various segregative factors are related in a particular case.

Mr. Tatel said minority-rights advocates would have been dealt “a significant setback’’ if Justice Scalia’s point of view had won a majority of votes. Likewise, they would have won “a significant victory’’ if Justice Blackmun’s opinion had prevailed.

Gwendolyn H. Gregory, the deputy general counsel for the National School Boards Association, predicted that few districts would feel emboldened to seek freedom from court oversight as a result of the High Court decision.

“There is a lot of disagreement in the Court over what school systems have to do to finally be relieved of court supervision,’' Ms. Gregory said. “Until we have a case in the Supreme Court where they actually are applying a lot of the facts and saying this school district is unitary or this school district is not, we are going to be in the dark.’'
Information for this story was also gathered by Staff Writer Mark Walsh.

A version of this article appeared in the April 08, 1992 edition of Education Week as School-Law Experts See Limited Impact of Ruling