Excerpted From: Deja Graham, The Fogotten: NYC and School Segregation, 29 Buffalo Human Rights Law Review 147 (2022-2023) (211 Footnotes) (Full Document)


DejaGraham.jpegThough decades have passed, segregation is not only prevalent but palpable in our education system. It has been almost 70 years since the landmark decision of Brown v. Board of Education, which ruled segregation in schools unconstitutional. Before 1954, the entire country was split into black and white in every aspect from water fountains to schooling. In the unanimous majority opinion, Chief Justice Warren declared that “in the field of public education the doctrine of 'separate but equal’ has no place. Separate educational facilities are inherently unequal.” Even so, the doctrine of separate but equal still reigns in the modern-day education system.

New York City has a reputation as one of the most culturally diverse cities in the world yet remains the most segregated place to attend school as a black person. Even though its schools are culturally diverse, the population of an individual school is predominantly one specific racial demographic. Attempts were made to address the issue of segregation in NYC public schools with, for example, Mayor Bloomberg's “School Choice” initiative. At the conception of “School Choice,” segregation in NYC schools was beyond just the simple choice of a student. Segregation was engrained in the foundation of the school system itself due to the governments inaction to truly address the integration of schools post-Brown. This failure by the government to truly integrate schools has resulted in less diverse professional spaces.

In May 1954, the Supreme Court took a step toward creating equity in access to education for all Americans. was a class action lawsuit brought to expose and address the inequity in access to education between black and white students. students were not receiving the same resources or education as white students, showing the true hypocrisy of the doctrine of “separate but equal.” Justice Warren went as far to say that separate schools are “inherently unequal.” Warren implied that as long as schools are segregated, students are not on an even playing field. held that state-sanctioned, also known as de jure, segregation is unconstitutional. Though the Supreme Court's ruling in Brown seems clear, states spent the next two decades, and beyond, trying to elude school integration. Political leaders fought against integration by implementing both anti-busing laws and other laws promoting segregation. The citizens in these communities met students who were attempting to integrate schools with violence.

Congress passed the Civil Rights Act in 1964 because progress toward ending discrimination and segregation was “too slow.” Congress believed that the government needed to intervene because states were not making enough progress toward eliminating segregation on their own. Title IV of the Civil Rights Act focuses on the desegregation of public education. Specifically, Title IV calls for the dismantling of de jure or state-imposed segregation. Within the language of Title IV, there is a “racial imbalance” loophole, which states that desegregation does not mean “the assignment of students to public schools in order to overcome racial imbalance.” Under this loophole, there is no government intervention when schools are segregated based on the demographics of a neighborhood.

Neighborhoods, at the time, were separated by distinct racial lines. As such, this loophole made the Civil Rights Act ineffective in tackling the desegregation of schools. For the government to intervene under Title IV, there must be an action by a school board that imposed segregation of public schools. would continue unchecked as long as the school board did not take adverse action. The unique construct of Northern cities, and the racial imbalance loophole in Title IV, meant that segregation could remain in place even if the school board took no adverse action. Title IV of the Civil Rights Act acted as a blockade between states and the federal government in addressing the segregation of schools in the North. The lines drawn for school districts and neighborhoods allowed segregation to continue while the states technically remained compliant with Federal law.

A. New York's History with Anti-Integration Measures

In 1964, fifteen thousand white parents protested the desegregation of schools and the use of busing, which “shaped the wording of the Civil Rights Act.” Scholars argue that the Civil Rights Act's language, specifically the “racial imbalance” loophole, not only allowed segregation to continue to exist but allowed for its expansion in the North. Specifically, it states that “these early 'busing’ protests and the resulting 'antibusing’ provision in the Civil Rights Act limited the federal authority and political will to uproot school segregation in the North.” White parents began protesting the use of busing before it was used as a desegregation tool by school boards or courts. These protests, and the subsequent pressure placed on politicians, “influenced the amendments ensuring that the Civil Rights Act would not apply to school segregation and 'busing’ in the North.” Protests deterred and delayed school boards from taking action to integrate schools.

In May 1969, Governor Nelson Rockefeller signed into law the most influential anti-busing law of its time. The State of New York enacted this law in response to large protests and outcries by white parents over the fear of their children attending integrated schools. This law was the prototype for the anti-busing laws legislators in the Southern states enacted to circumvent school integration. Indeed, “the Lent-Kunzeman 'neighborhood schools' bill generated national interest among integration opponents and became a model for similar 'freedom of choice’ school legislation in several southern states.” This law, and the laws that followed in the South, allowed for state governments to remain compliant with the holding in Brown while also avoiding school integration. The North Carolina statute that the Supreme Court ruled unconstitutional in Swann v. Charlotte-Mecklenburg was modeled after New York's anti-busing law. In Swann, the Supreme Court ruled that busing is an appropriate remedial measure to tackle school segregation. This had no effect on the Northern cities due to the racial imbalance loophole in the Civil Rights Act and the already racially divided neighborhoods in these cities. New York, upon Governor Rockefeller's signing of the anti-busing bill, became the case study of how to accomplish segregation while still being compliant with Federal Law.

B. Supreme Court's Derailment of Desegregation in Milliken v. Bradley

In the early 1970s, after it was found that most of the black students in a North Carolina school system attended schools that were 99% black, the Supreme Court ruled that busing of students is an appropriate remedy to promote the integration of schools. The concept of school zones and districts promoted segregation as black students did not live in the same neighborhoods or zones as their white counterparts, busing was a necessary tool for integration. The decision in Swann was a step toward progress, but it was also the furthest the Supreme Court was willing to go to eradicate school segregation.

In Milliken v. Bradley, a class action suit was filed alleging that the Detroit public school system was racially segregated. The district court ordered “state officials to submit desegregation plans encompassing the three-county metropolitan area.” This plan included fifty-two outlying, predominantly white, districts that were not party to the action and were not accused of committing constitutional violations. When the outlying school districts intervened in this action, the district court supported its order stating, “[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.” court of appeals agreed that the remedy to integrate schools would have to go beyond the city of Detroit. The district court found that the board of education's construction of schools promoted segregation, stating, “Detroit school construction generally tended to have a segregative effect with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods so that the new schools opened as predominantly one-race schools.”

The Supreme Court held that the court could not impose this order on the outlying school districts because there was no evidence these districts were segregated or promoted segregation policies. The lower court introduced evidence of Detroit's use of school districts as a device to segregate students. The court reasoned that “this isolated instance effecting two of the school districts would not justify the broad metropolitan wide remedy contemplated by the District Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit's 276,000 students.” In this ruling, the Supreme Court effectively guaranteed that there would never be an adequate plan to integrate metropolitan areas.

Justice Douglas wrote in his dissent, “when we rule against the metropolitan area remedy we take a step that will likely put the problems of the blacks and our society back to the period that antedate the 'separate but equal’ regime of Plessy v. Ferguson.” He suggested the only adequate way to tackle segregation in metropolitan areas is through the use of a plan similar to the district court's plan. Justice Douglas highlighted the usage and division of school districts as “either maintain[ing] existing segregation or caus[ing] additional segregation.” The state's use of restrictive covenants created rigid racial neighborhood boundaries ensuring that black students would attend predominantly black schools. Douglas argued that the district court acted properly in ordering a multi-district plan to integrate schools. He reasoned that the segregation was attributable to the actions of the state of Michigan as a whole and not the individual district. He believed Michigan's line drawing of school districts created segregated schools, and the holding of the Court would allow segregation to continue unchecked.

Justice White's dissent echoes a lot of the concerns highlighted by Justice Douglas. Justice White noted that the majority ignored “the legal reality that the constitutional violation, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the commend of the Fourteenth Amendment.” The dissenting opinions in Millikenhighlight how the majority's narrow district-by-district view of addressing school desegregation in metropolitan areas impede integration efforts in cities post-Brown.

The Supreme Court's decision in Milliken obliterated Northern cities' trend toward integrated schools. Unlike the concurring and dissenting opinions, the majority did not explain why these outlying districts were not technically segregated: because “white flight” to the suburban areas surrounding Detroit led to predominantly white schools. The same “white flight” phenomenon occurred in cities around the country during the migration of Black southerners to Northern cities, leaving many inner-cities predominantly black. These districts did not have black schools or white schools because the drawing of the imaginary school district lines overlapped with the drawing of racial segregation lines for neighborhoods. Simply put, there is no need to have “black” or segregated schools if there are few, if any, black families residing within the district. The segregation of neighborhoods through the use of redlining and the Milliken ruling made the integration of Northern schools improbable.

There was an immovable barrier standing in the way of integrated schools. The desegregation of education in any metropolitan city would have required the inclusion of surrounding, predominantly white, neighborhoods and districts. As stated by Justice Marshall in his Milliken dissent, the Court's ruling preserved the “very evil” that Brown's decision intended to remedy for the future. The decision in Milliken allowed the suburbs to act as an escape from the Court's mandate in Green v. New Kent County to eradicate the dual system of education. This allowed for the Northern cities to remain segregated and unchecked. As a result, Green's ruling was completely ineffective in the North, even though it was not overturned. Milliken allowed this dual system to remain, creating a barrier to educational equity between black and white students in metropolitan cities.

[. . .]

Separate and unequal is the current state of education not only in New York City but in cities across the country. This gap in education is due to the government's failure to take action in addressing the de facto school segregation that occurred throughout the North prior to and following Brown. Chief Justice Warren's statement in Brown that “[s]eparate educational facilities are inherently unequal” still reigns true today. In terms of education, metropolitan cities are “divided up into two cities-one white, the other black.” The continued segregation of schools has led to issues with diversity in professional fields. Black and Latinx students are not given the same opportunity to succeed educationally as their white counterparts.

In the current era, where there is a push to end the use of affirmative action policies in college admissions, it is even more critical we create an educational environment where everyone has the opportu nity to succeed. Hopefully, there will be a day where the conversation regarding diversity and integration is futile, but that is not today. We must act now if we ever want professional fields to mirror the world we live in.

J.D. Candidate, University at Buffalo School of Law, Class of 2024.