Law & Courts Opinion

The Integration Decision

By Gary Orfield & Erica Frankenberg — July 17, 2007 9 min read
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When the U.S. Supreme Court, in June of last year, suddenly decided after the appointment of Justice Samuel A. Alito Jr. to take two school desegregation cases very similar to one from Massachusetts it had shortly before refused to review, some experts predicted a decisive shift, one that would perhaps even undermine the 2003 decision in Grutter v. Bollinger, a higher education case that left intact affirmative action precedents.

In late June of this year, after waiting until the last day of the term to render its decision in cases reviewing race-conscious student-assignment plans in Seattle and Jefferson County, Ky., the court sent a muddled message. Four justices disputed four other justices on almost everything, including the very basic meaning of Brown v. Board of Education, while one generally conservative judge, Anthony M. Kennedy, agreed in part with each group and determined what the U.S. Constitution means in this area, at least until the Supreme Court speaks again. (“Use of Race Uncertain for Schools,” July 12, 2007.)

The debate among lawyers about the legal origin and reasoning of these three opinions—majority, concurring, and dissenting—will go on and on. In the meantime, school people need to know what they can and cannot do, since the decision has outlawed most of the existing plans in districts not now under a court order, and has not clearly spelled out answers to the most important challenges districts now face.

If the law and social science recognize the importance of integrated schools, what are educators to do to actually create or retain integrated schools?

Last month’s ruling, in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education, caps decades of backing away from the mandate of Brown, the historic case that struck down segregated schooling in 1954. The first of the major decisions to do so was the Milliken v. Bradley decision in 1974, which essentially eliminated the possibility of desegregating across district boundary lines, preventing meaningful desegregation in many metropolitan areas in the Northeast and Midwest. In the 1990s, in a series of three decisions, the Supreme Court limited the duration of desegregation efforts required by districts that had once enforced segregated schools. Districts could be declared “unitary,” or free of the vestiges of a dual system; any remaining racial segregation or inequality was assumed to be a result of private action, and neighborhood-school plans restoring segregation could be instituted.

Desegregation had been declining for 16 years before the June 28 decision, particularly in the South, where many mandatory desegregation plans had ended and districts had switched to school choice plans or neighborhood schools. The typical black student in the South, for example, now attends a school where the enrollment is only 27 percent white, down from over 43 percent less than two decades ago. Nationally, nearly 40 percent of all black and Latino students attend intensely segregated schools, where fewer than 10 percent of students are white. White students remain the most isolated group.

Voluntary race-conscious integration is a limited tool to maintain racially diverse schools, employed by districts that value such schools’ educational and social benefits for students and their communities. In the cases decided by the Supreme Court, the policies were attempts by locally elected school boards to allow a great deal of parental choice of schools, but with a guideline to ensure that the racial compositions of schools were not segregated—a guideline which only altered the school assignments of a very small percentage of district students, but was necessary to prevent racial resegregation. Surveys in both districts showed that students of all racial and ethnic backgrounds felt very positive about their interracial educational experience. The policies were necessary because, despite the passage of more than 50 years since the Brown decision and 40 years since the enactment of the federal Fair Housing Act, many American communities are deeply segregated. And unrestricted school choice plans, adopted in many in the early 1960s, often tended to increase segregation.

In the court’s divided opinions, five justices endorsed the compelling educational benefits of integrated schools. Despite the judicial trend toward resegregation, social science evidence and educational experience confirm the multifaceted benefits of integrated schools for students and the harmful effects of segregation. The harms of segregated, or racially isolated, schools were recognized by the Supreme Court in Brown and have been extensively documented by social scientists. Five hundred fifty-three scholars from 201 universities and research centers around the country filed a “social science statement” with the court last fall summarizing a half-century of research on these topics. There is also growing evidence that the benefits of an integrated school can be enhanced depending on what happens within the school.

If the law and social science recognize the importance of integrated schools, what are educators, community leaders, and parents to do to actually create or retain integrated schools? Unfortunately, the tools have been limited, but there is plenty of time for districts to consider what might work, consult with researchers ready to help, and examine the experiences of other districts. Despite Chief Justice John G. Roberts Jr.’s insistence that Brown means there can be no consideration of a student’s race in assigning students to schools for desegregation (an insistence that many find a preposterous rewriting of history), research on the effect of race-neutral student assignment finds consistently that districts which eliminate race-conscious assignment plans experience growing numbers of schools of concentrated poor and minority students and associated growth of academic inequality. Thus, school systems should carefully consider the experiences of other districts before eliminating race as a factor in assigning students.

Research finds that districts which eliminate race-conscious assignment plans experience growing numbers of schools of concentrated poor and minority students.

Districts now under court orders and considering unitary status should press the “stop” button immediately until they understand what they can lose if those orders end. Under this decision, no change in court-ordered plans is needed. As soon as a court order is terminated, however, the very magnet school assignment plan that may have produced integrated and successful magnet schools in a district becomes illegal, and the school board has to find a new plan—or, in most cases, let resegregation take away much of the accomplishment. There is now a strong need for educators to hold on to the flexibility that often comes with court-ordered choice plans.

Types of plans that are clearly legal for districts include those that alter attendance zones and take into account the racial and/or poverty composition of neighborhoods to create a racial mix of students in schools. Other mechanisms to produce integrated schools include placing new schools in areas where they would naturally draw students from diverse backgrounds. The court’s decision addressed only race-conscious efforts to integrate schools, meaning that any policies that do not explicitly consider students’ race or ethnicity in making decisions about school attendance are untouched—although it is unlikely that such plans would be as effective in most districts.

In recent decades, districts that were pursuing desegregation also sought to offer increased choices for families. Ironically, one of the side effects of the new decision might be districts’ being forced to choose between educational choice and diversity unless they devise a multidimensional method of evaluating students’ choices, one in which race is only one of several factors, such as socioeconomic status, parental education, native language, and academic achievement. There are no guidelines from the justices on what a multidimensional model would be. But the decision does sustain Grutter, the court’s ruling four years ago, and the factors that colleges use for admissions would probably be relevant to consider—although needing adjustments for students’ ages.

Districts employing choice-based plans need good information centers to make sure that information about school choices is equally available to people of all backgrounds. Outreach to students by magnet schools, or under other choice plans, to generate applications from a diverse group of students is also acceptable according to the decision, and such actions could help ensure that choice plans create integrated schools. A school drawing diverse groups of students also needs to carefully welcome and integrate students from all groups within the school and in all aspects of school life; in this, providing training to teachers to teach in multiracial classrooms is critical.

In a nation whose student population is almost one-fifth Latino and one-twentieth Asian, black-white desegregation plans are no longer adequate. If a district has a multiracial enrollment, its plan should reflect this reality and not simply divide students into white and nonwhite, for example. If there is a large Latino population in a district, creating two-way bilingual programs at schools will both naturally desegregate these schools and offer an enriched educational opportunity for students that justifies the use of such a program.

These policies are more administratively burdensome for school districts, and it may take several attempts before a given district determines which plan is best, given its student composition and educational goals. But adjusting policies will be less burdensome than restoring segregation, which produces growing inequality, higher dropout rates, faculty instability in schools with high numbers of poor students or students of color, and frequent sanctions under federal and state accountability systems. Not all of these problems will automatically occur everywhere, but research suggests that these conditions are likely to occur when race-conscious policies are abandoned.

Now is a good time to recognize that integration cannot be accomplished by schools alone. In the long term, more-comprehensive measures are needed in many communities. Actively enforcing fair-housing policies and supporting integrated neighborhoods is critical. In fact, communities that partner school integration efforts with housing-integration efforts have experienced stable, long-lasting integration.

The challenge for educators and our society is ensuring that this reversal isn’t the last word.

While communities explore multifaceted approaches to the entrenched problem of racial segregation and inequality, social scientists and advocates must continue to build a research and advocacy agenda to challenge the premises of the recent Supreme Court decision. The courts have traditionally been the means of accomplishing progress on racial inequality, but perhaps it is time to turn to other branches of government, to state courts, and to grassroots organizing and mobilization in support of integration and equality for all.

What is clear is that there is a challenge ahead for those committed to integration and equal opportunity. Justice Stephen G. Breyer, realizing that his court brethren had further reduced the mandate of Brown, concluded his eloquent dissent by echoing Justice Thurgood Marshall’s Milliken dissent in writing, “This is a decision that the court and the nation will come to regret.”

The challenge for educators and our society is ensuring that this reversal isn’t the last word, and that where diversity and integration are still possible, they be pursued intensely. We must work for the day when this decision will be seen as a historical relic like Plessy v. Ferguson, the 1896 decision upholding the doctrine of “separate but equal,” so that our nation’s students and our country will be prepared for the global economy and rich interconnectedness of the 21st century.

A version of this article appeared in the July 18, 2007 edition of Education Week as The Integration Decision


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