Law & Courts

Federal Enforcement Is Key to Brown Legacy

By Mark Walsh — May 13, 2014 8 min read

Fifty years ago—a decade after the U.S. Supreme Court’s historic decision in Brown v. Board of Education of Topeka—there still had been little real progress in desegregating the nation’s schools.

In 1964, only 2 percent of black students were attending formerly all-white schools in the states of the former Confederacy, according to a 1966 report by the U.S. Civil Rights Commission.

Then came the Civil Rights Act of 1964, the landmark legislation signed by President Lyndon B. Johnson that is best known to many Americans today for its prohibitions on discrimination in the workplace. But several key provisions of the statute provided a jump-start to the desegregation process.

The Civil Rights Act authorized the U.S. Department of Justice to sue states and school districts to compel desegregation. Another provision allowed the department to intervene in existing civil rights lawsuits being pressed by private parties. And the law’s Title VI prohibited discrimination on the basis of race, color, or national origin in federally funded programs.

“There is no doubt the Civil Rights Act gave a big boost to desegregation,” said James E. Ryan, the dean of the Harvard Graduate School of Education and an expert on education law. “Having the weight and the resources of the federal government behind these cases was a very big deal.”

The civil rights statute and the Elementary and Secondary Education Act of 1965, which provided federal aid to schools on a large scale, gave the federal government carrots as well as the stick of litigation to pursue desegregation goals.

President Barack Obama honors Sylvia Mendez with the 2010 Medal of Freedom at the White House on Feb. 15, 2011. As a child, Ms. Mendez was a key figure in a seminal school desegregation case.

With further help from the Supreme Court, real progress was made in desegregating Southern schools, and some in Northern cities, too.

High Court’s Shifting Stance

But the high court, so central to prodding the nation to end legal segregation of the races in its schools, hasn’t decided a desegregation case in nearly 20 years. In its last such case, justices expressed impatience with continuing judicial supervision of schools.

More recently, in 2007, a sharply divided court in the Parents Involved in Community Schools v. Seattle School District case curtailed the voluntary uses of race in school systems that had been freed of court supervision for desegregation or had never been found to have violated the U.S. Constitution.

Today, the Justice Department remains among the country’s most vigilant activists for reaching desegregation goals. The department was once a party to or an intervenor in hundreds of desegregation matters, and it still has 184 active cases on its list.

Anurima Bhargava, the head of the educational opportunities section of the Justice Department’s civil rights division, said in a rare interview that the job the nation embarked on 60 years ago is still a top priority for the federal government.

“The goals remain as they have for a long time,” said Ms. Bhargava, a political appointee who formerly headed the education practice for the NAACP Legal Defense and Educational Fund. “How do we address the vestiges of segregation?”

The role of the 1964 Civil Rights Act in the nation’s desegregation saga has been somewhat underplayed over the years, scholars say.

Brown at 60: New Diversity, Familiar Disparities

Even with ground-shifting demographic changes, many public schools continue to be highly segregated 60 years after the U.S. Supreme Court struck down the principle of “separate but equal” education, but those shifts have also created opportunities to approach diversifying schools and classrooms in new ways.

This special series includes reporting on the state of school integration today, video profiles, national data on school desegregation, a timeline of landmark desegregation cases, Commentaries on integration, and more.

Bruce Ackerman, a professor of law and political science at Yale University, argues in a new book that the statute broke a 10-year impasse over desegregation progress since the Brown ruling by giving the federal government the tools to get involved.

“By authorizing the Justice Department to bring its own lawsuits and to intervene in those brought by others, the act greatly increased the courts’ capacity to transform Brown into a living reality,” Mr. Ackerman writes in We the People: The Civil Rights Revolution.

Until passage of that law, “the NAACP Legal Defense Fund had been the only actor” filing desegregation lawsuits, Mr. Ackerman added in an interview. Although the private organization—led for a long time by Thurgood Marshall, a future U.S. Supreme Court justice—had filed some 500 desegregation suits, “there were vast areas of the South where there was not even a pretense of desegregation,” Mr. Ackerman said.

He and other legal scholars agree on another important development stemming from the Civil Rights Act. What was then the U.S. Department of Health, Education, and Welfare issued guidelines—tepid at first in 1965, but stronger a year later—that set desegregation goals that schools receiving federal aid should meet.

“The ESEA put a lot of money on the table, so the threat of withdrawing federal funds” based on Title VI of the Civil Rights Act now had some power behind it, Mr. Ryan of Harvard said.

Linda Brown, 9, is shown in this 1952 photo. Now Linda Brown Smith, she was a 3rd grader when her father joined the lawsuit that bears their family’s name, Brown v. Board of Education of Topeka, in 1951.

The guidelines also gave local school leaders some political cover to begin desegregating in earnest, and the guidelines were embraced by federal district judges who were formulating decrees, Mr. Ryan said.

The Supreme Court itself “got back in the game,” he pointed out, with its 1968 decision in Green v. New Kent County School Board. That case was based on a lawsuit against a small Virginia district in 1965, in which a lower court had upheld a type of “freedom of choice” plan that was widely adopted by many Southern districts as a token effort at desegregation.

The high court said a freedom-of-choice plan was not acceptable where other desegregation tactics were available to provide a speedier, more effective result.

“Integration is starting to work by this point, and Justice [William E.] Brennan [Jr.]"—the author of the opinion in Green—"can say the days of ‘all deliberate speed’ are over, and we want integration now,” said Mr. Ackerman.

By 1970, one-third of black students in the South were attending schools where a majority of students were white, according to a 1999 report by the Civil Rights Project, which was then based at Harvard University and is now at the University of California, Los Angeles.

Gathering Dust?

The federal role in pressing school systems to purse their desegregation goals became entrenched over the next quarter-century, even as the Supreme Court’s commands evolved.

In 2007, the Civil Rights Commission issued a detailed report examining Justice Department enforcement of school desegregation. The report noted that Supreme Court decisions in 1991 and 1992 had made it easier for school districts to be declared unitary—meaning no longer operating a dual system—and thus be freed from court supervision.

The number of cases involving the Justice Department had declined from 430 in 2000 to 266 by 2007, the report said. The commission’s key finding was that the increase in jurisdictions obtaining unitary status had not had an adverse effect on actual levels of racial integration in their schools.

Still, “many of the original desegregation orders have been in place for decades,” the commission observed.

Many of those orders now are gathering dust because the cases are largely inactive. Others still bind districts on matters such as student assignment, attendance zones, and faculty-diversity goals.

The first white students to attend West Charlotte High School are directed to classes by Assistant Principal Leroy Miller in Charlotte, N.C., on Sept. 9, 1970, as Charlotte-Mecklenburg County schools open under a court-ordered desegregation plan.

Allison Brown, who was a career lawyer in the educational opportunities section of the Justice Department’s civil rights division under the administrations of Presidents George W. Bush and Barack Obama, said in an interview that the department has been able to bring about agreement on certain modern-day concerns in some districts.

In the 6,000-student Meridian, Miss., school system, for example, the Justice Department, the district, and the private plaintiffs who first sued to desegregate the system in 1965 agreed on a consent decree last year addressing student discipline. The decree was meant to settle an investigation into charges that the district disproportionately subjected black students to suspensions, expulsions, and school-based arrests, often for minor infractions.

Ms. Brown, now an education law consultant based in Washington, said lawyers in the educational opportunities section often confronted the mind-set that desegregation work was something out of another era.

“That was something we battled a lot,” she said. “But desegregation, to us, still felt like a very real tool for changing that mindset.”

Justice Department Enforcement

Ms. Bhargava, who took over in 2010 as the head of the educational opportunities section, said in the interview that of the 184 active cases involving the federal government, “there is a subset of those where we haven’t seen a lot of activity.”

The Justice Department initiates case reviews of some of those dormant decrees, while in other cases federal district judges may say, “Hey, what’s going on with this case?” she said.

A bid for unitary status by a school district, which usually comes from the district, also brings about a review by the department.

“Moving the desegregation cases to close is not my number-one priority,” Ms. Bhargava said. “The question for us is, what can we do within the context of our desegregation orders?”

Black and white students at Smiley Junior High School in Denver walk by their school on Sept. 22, 1971. Tensions mounted in that city in the wake of an order requiring some students to be bused for desegregation. A later Supreme Court ruling in the Denver case set several precedents.

That issue was underscored recently when the Justice Department filed a motion under a decades-old statewide desegregation case in Louisiana to ask whether the state’s expanded tuition-voucher program was upsetting the racial balance in schools in several districts still under court supervision.

The action led to a highly charged battle with Gov. Bobby Jindal, a Republican, who asserted that the Obama administration was using the old desegregation case to trap minority children in subpar public schools.

In April, a federal judge in New Orleans ordered the state to provide the Justice Department with regular data reports on the students accepting vouchers so the program’s effects could be monitored. Both sides claimed victory in the outcome.

Meanwhile, in neighboring Mississippi, the department is challenging the adequacy of desegregation efforts of the 3,600-student Cleveland district, another case that has been around for nearly 50 years. (See related story, Page 18.)

Chinh Q. Le, a Washington-based civil rights lawyer who wrote about the federal role in desegregation in 2010 in the North Carolina Law Review, said in an interview that there is a bit of irony about the Supreme Court’s 2007 decision in Parents Involved in Community Schools curbing voluntary consideration of race.

“It has turned out that if there is going to be hope for many school systems” to achieve their desegregation goals, he said, “their strongest tool may be that they remain under court supervision.”

Doing so allows them to still consider race in ways that districts that aren’t under court order may not, said Mr. Le, who once worked at the NAACP Legal Defense and Educational Fund.

“People might perceive that school desegregation cases, as we understand them, may seem passé,” Mr. Le added. “But the notion that many Americans want school systems that are truly racially integrated is as strong and alive as ever.”

A version of this article appeared in the May 14, 2014 edition of Education Week as Federal Enforcement Key to Brown Legacy

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