A. Schools and Racial Caste

The legacy of Brown v. Board of Education is well documented as a great disappointment. Over a half century ago, the U.S. Supreme Court declared that racially segregated schools would no longer be countenanced under the Constitution. Despite this decision, distinct spheres of education continue in this country with great divides existing between White students and those of color. Even Derrick Bell, one of the lawyers who oversaw many of the desegregation suits that followed Brown, admitted that the case offers little more than symbolic significance today.

Brown explained that equal protection precluded Black and White students from being educated separately, but its fundamental concern was for inequality in educational opportunities. Not only did the Court find that separate educational facilities were inherently unequal; it also found that Black children, in fact, had been sent to historically inferior public schools. Despite the ruling in Brown, this trend continues today. While a variety of complex factors likely contribute to this continuing state of affairs, there can be little doubt that disregard for the opportunities offered to young racial minorities, if not outright animus, plays a significant role in sustaining the status quo. Much like the days following Brown, those currently fighting to challenge the segregation stalemate find themselves in a losing battle. Indeed, as federal Judge J. Harvie Wilkinson III noted, Brown's mandate to district court judges resembled nothing more than an order for the infantry to assault segregation without prospect of air or artillery support. That some of the infantry lacked enthusiasm for the cause only made matters worse. . . .

In St. Louis, Missouri, where my Juvenile Rights and Re-Entry Clinic operates, a school desegregation order remained in effect up until 2009 in an effort to ensure that public schools afforded youth of color the ability to receive an education along with White students. Stemming from the 1970s landmark federal case Liddell v. Board of Education of St. Louis, a series of settlement decrees sought to bring St. Louis into compliance with Brown's mandate. By 1983, St. Louis became home to one of the nation's most extensive effort[s] to integrate schools of a major metropolitan area. There was resistance from the very beginning, not the least of which came from then-Attorney General John Ashcroft, who appealed the case all the way to the U.S. Supreme Court. Indeed, it was not until presiding Judge William Hungate warned that he might consolidate all regional school districts into one large district, which would threaten the autonomy of suburban White school districts and their tax bases, that individual school districts in the area agreed to enter into a voluntary inter-district desegregation plan. Suburban White districts would, therefore, accept Black students.

Beyond allowing over 10,000 Black students to transfer to predominantly White suburban schools, the settlement called for the creation of city-based magnet schools that would be racially balanced. In addition, the settlement ordered remedial, compensatory educational services for the remaining predominantly Black schools. St. Louis's Black youth thus had three options available to them under the agreement. Black students thus benefitted from opportunities not previously provided, including college counseling and preparation. Some, however, argued the plan resulted in a brain drain from urban St. Louis schools as Black youth with motivated parents transferred out of the city, leaving less supported, and arguably less highly achieving, youth behind.

Before all the results were in, Missouri, which had resisted the plan all along, took steps in the early 1990s toward having it dismantled. Although Missouri spent over $8 million to fight the desegregation plans, it claimed the integration efforts were too costly. Ultimately, a new settlement agreement was signed in 1999 that extended many features of the prior desegregation plan. This new agreement contained three main differences: first, the federal court did not continue to actively monitor its terms; second, city schools received much less money under the new arrangement; and third, it was set to expire in ten years regardless of any further gains on integration or educational equality. Segments of the Black community, including then-St. Louis Mayor Freeman Bosley Jr., supported courts stepping out of local school affairs, but some reported having no idea at the time what was being settled or how much was being given up under the 1999 agreement. Having arrived in St. Louis in 2009, the year the agreement was dissolved, I can report that separate and unequal is alive and well in our area schools.

St. Louis, while perhaps a particularly noteworthy example given its pernicious history of racial discrimination, is certainly not an outlier when it comes to continuing divides in educational opportunities. Nationwide lawsuits, which have continued in an effort to address persistent race-based segregation, represent the still-existent divide in educational opportunities. One Louisiana school district has remained embroiled in litigation for nearly five decades, fighting Department of Justice oversight of its racially discriminatory practices. As late as last year, a federal judge in Mississippi had to order a rural school district to cease and desist from segregation practices that put Blacks in all-Black classrooms.

According to some commentators, U.S. public schools are more racially segregated today than they were at the time of Brown. The Supreme Court's most recent pronouncement was in Parents Involved in Community Schools (PICS) v. Seattle School District No. 1. In that case, the Court declared unconstitutional certain voluntary race-conscious student assignment plans that sought to ameliorate this chasm. This decision has caused many to worry that our ability to deliver on Brown's promise has been further thwarted.