Excerpted from: Danielle Holley-Walker, A New Era for Desegregation , 28 Georgia State University Law Review 423 (Winter, 2012)(248 Footnotes)
Desegregation is a term from a bygone era. Desegregation recalls the seminal 1954 Supreme Court decision in Brown v. Board of Desegregation recalls images of the Little Rock Nine, Thurgood Marshall standing triumphantly on the steps of the Supreme Court, and angry parents protesting busing in Boston. For most observers, desegregation is a historical term, a term from the past.
Despite this common perception, nearly two hundred desegregation cases are still pending in federal district courts. Most of these cases were initiated in the 1960s and 1970s and have remained dormant for several decades, but there are early indications that traditional desegregation cases may be in a period of revival. For example, in 2010, in Walthall County, Mississippi, the Civil Rights Division of the United States Department of Justice (DOJ) successfully argued that the local school district was in violation of a 1970 desegregation order. The federal district court found that the school district maintained segregative practices that fostered a dual school system, allowing some schools and classrooms to remain racially identifiable as either white or African American. Additionally, in 2007, in Tangipahoa Parish, Louisiana, African-American plaintiffs alleged that the school district continued to violate the Fourteenth Amendment's Equal Protection Clause, in open defiance of the 1965 desegregation order, by failing to hire and promote African-American faculty and administrators. As a result, the parties agreed to a desegregation plan that included the construction of new schools and the creation of new magnet programs. Finally, in Little Rock, Arkansas, the local school district is arguing that the State Board of Education is in violation of a 1989 settlement agreement in a desegregation case by allowing too many resources to be allocated to racially isolated charter schools.
This Article argues that traditional desegregation cases, like the cases mentioned above, should be seen as one important tool in the continuing struggle by many parents, students, and civil rights advocates to achieve racial and socioeconomic integration in our public schools. While it is unlikely that any new desegregation cases will be filed, and the overwhelming majority of the approximately 16,000 school districts in the United States are not under desegregation orders, these orders are still powerful tools in the school districts where they remain. For decades, legal scholars and civil rights litigators have anticipated the end of desegregation, and most have begun to focus on other aspects of education reform, such as accountability, school choice, and school finance reform. But until the last school district is declared unitary, civil rights advocates should examine these cases and take a proactive approach to insuring that states and school districts have fulfilled every aspect of desegregation orders. A vigilant and proactive approach to the remaining desegregation cases can potentially influence racial integration and student achievement in both the directly affected school districts and the broader landscape of American schools.
In Part I of the Article, I provide an overview of the history of traditional desegregation cases. Traditional desegregation cases include those cases filed in the decades after Brown against states and local school districts to address violations of the Fourteenth Amendment's Equal Protection Clause. I trace the progress of desegregation cases from their high watermark in the late 1960s and early 1970s in which the Supreme Court strongly supported desegregation, to the Supreme Court's decision in Milliken v. Bradley (Milliken which many scholars argue signaled the end of any meaningful desegregation. Part I also highlights the trilogy of 1990s Supreme Court decisions that led to an era of resegregation in America's public schools.
Part II turns to recent activity in traditional desegregation cases. I highlight the three recent cases from Mississippi, Louisiana, and Arkansas as examples of the use of desegregation cases to combat racial isolation, support the hiring of minority teachers and administrators, argue for additional resources for impoverished schools, and stem the growth of racially isolated charter schools.
In Part III, I present the normative case for the revitalization of traditional desegregation cases. I argue that desegregation cases present a unique avenue to improve public schools. In order to make this case, I provide an overview of the three dominant strands of education reform over the last twenty-five years: accountability, school choice, and school finance reform. These education reform movements embody several core values, including a focus on learning outcomes and student achievement, as well as an emphasis on adequacy and the goal that all children acquire basic knowledge in a limited number of subjects, such as reading and math. I argue that promotion of these values has taken the focus off the broader public education values of promoting a broad base of knowledge that helps to prepare students to be responsible citizens in our democracy. I also argue that the emphasis on adequate education has replaced the notion that public schools should provide equal educational opportunity to all children.
I then argue that desegregation cases serve a unique function in the current landscape of education reform, primarily because desegregation cases promote the concept of educational equality. Desegregation cases allow for school districts to continue using race-conscious remedies to improve educational opportunity. Desegregation cases also foster a continuing public dialogue on the role that the lingering effects of historic racial discrimination play in the ongoing challenges in our public schools.
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