'Days of Court Oversight Are Numbered'

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In lifting the desegregation order governing the public schools in Muscogee County, Ga., federal Judge J. Robert Elliott noted that he was the only person who had had a continuous connection with the case since it was filed in 1964.

Quoting Ecclesiastes that "better is the end of a thing than the beginning thereof," Judge Elliott, 84 years old at the time, expressed his hope to end court-ordered desegregation in the district before he died. His sentiment reflects a national trend, as federal judges lift longstanding desegregation decrees with greater frequency.

Over the past 18 months, decrees have been lifted in cities such as Denver, Buffalo, N.Y., Dallas, Savannah, Ga., and Wilmington, Del. Many other districts are following that lead, filing petitions for "unitary" status--the legal term for the condition that a district must achieve to end court oversight.

The state of Missouri, for example, having spent well over $1 billion to comply with decrees in St. Louis and Kansas City, is seeking unitary status in those two districts. In Arizona, Gov. Fife Symington has proposed legislation to require districts under court orders to seek their release. And in Florida, the court--on its own initiative--ordered a unitary status hearing in the Hillsborough County case, a district that has been under court supervision since 1958, with the late Supreme Court Justice Thurgood Marshall among plaintiffs' counsel.

The growing trend of unitary-status petitions should come as no surprise. Desegregation decrees were intended to be temporary interventions. The objective stated in Brown v. Board of Education was to dismantle state-enforced segregation so that students of all races could receive a public education on a nondiscriminatory basis. Now, more than 40 years after Brown, with generations of students having attended schools under court orders, continued court oversight on a "desegregative" basis has become increasingly hard to justify.

Fueling this trend are three recent U.S. Supreme Court decisions. These decisions clarify the legal standard to be applied in deciding whether to lift a federal decree. Fundamentally, these high court decisions recognize the limitations on the power of a federal court in public education. They emphasize the need to return schools to local control.

The first decision was the 1991 Oklahoma City case of Board of Education v. Dowell. The Supreme Court acknowledged that districts need a precise test to determine when they should be released from court oversight. The test, it held, was whether the district had complied in good faith with the trial court's decree and eliminated, "to the extent practicable," vestiges of segregation in those areas of schooling known as "Green factors"--student and staff assignment, transportation, facilities, and extracurricular activities.

The Green factors, named after the Supreme Court's 1968 decision in Green v. New Kent County School Board, were used in the 1960s and '70s to determine the existence of "dual" systems, where schools remained racially segregated usually as a result of patterns in housing and school assignments. Trial courts had been declaring districts unitary based on the Green factors, but a threshold of compliance was not clear. In Dowell, the Supreme Court adopted a standard that accommodated ending court oversight.

In the Dowell decision, the high court emphasized that desegregation decrees were never intended to be perpetual. It explained that local control over public education is a vital national tradition that allows for citizen participation and encourages school programs adapted to local needs. Federal decrees, the court continued, should displace local autonomy only temporarily in order to remedy past intentional discrimination. Consistent with its imperative to return schools to local control, the court set the threshold of compliance to require only that districts eliminate traces of segregation to the extent practicable.

Second, in the DeKalb County, Ga., case of Freeman v. Pitts, the Supreme Court re-emphasized the need for local control of schools. The court held in this 1992 decision that judicial supervision could be withdrawn from areas in compliance (such as student assignments), even if other areas of school operations (such as faculty assignments) were not yet in compliance. The point was to return as much of the day-to-day operations of schools to local officials as soon as possible.

In the Freeman case, the court reiterated Dowell's premise: There are practical limits to what a federal court can do to remedy prior discrimination. For example, regarding student assignments, the court stated that once the initial racial imbalances had been remedied, districts were not required to remedy subsequent imbalances caused by demographic changes.

Finally, in last year's highly publicized case of Missouri v. Jenkins, the Supreme Court reversed an earlier ruling that forced the state to pay for salary increases and remedial programs in one of the most ambitious desegregation plans in history, with annual desegregation costs approaching $200 million. These massive expenditures had financed, among other things, the building of a planetarium, a temperature-controlled art gallery, a dust-free diesel mechanics room, and an Olympic-sized swimming pool.

The high court's decision reflected a recurring view: Desegregation decrees cannot eliminate differences in student performance caused by poverty, poor family structure, and other socioeconomic factors. By weighing in on student achievement with a decidedly tempered approach, the court has removed one of the most contentious obstacles from the path toward ending court oversight.

With these three most recent desegregation decisions, the Supreme Court's journey into the field of court-supervised desegregation has come full circle. As the 1950s were marked by intervention in matters of local concern, the high court in the '90s has tried to define the terms of disengagement.

The court's direction is clear: Education is ultimately a local issue. Even if the shift isn't completed in Judge Elliott's lifetime, the days of further court oversight are clearly numbered.

Vol. 15, Issue 20, Page 40

Published in Print: February 7, 1996, as 'Days of Court Oversight Are Numbered'
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