III. Re-segregation of Public Schools: A Return to Plessy
It was Martin Luther King's dream that white and black students would be educated in an integrated environment. The National Association for the Advancement of Colored People (NAACP) vigorously*9 pursued this dream through litigation. Fifty years later, minorities and the economically disadvantaged are segregated into the poorest schools in the country where school resources and funding are limited.
School districts across the country are rapidly re-segregating. The dream that Dr. Martin Luther King, Jr., so eloquently spoke of has never been truly realized. Indeed, fifty years after the Brown decision, African-Americans have awakened to a nightmare of de facto segregation and isolation.
We celebrate the 50th anniversary of Brown, but it is as much about its history than its present day effect on public education. As a result of the Brown decision, public schools, especially in the South, initially*10 began to desegregate schools. However, the success of Brown was short-lived. To avoid integrating their children with African-Americans, white parents moved out of school districts or sent their children to private schools. The Supreme Court's decision in Milliken v. Bradley, which restricted the use of busing to desegregate the Detroit School system by implementing an inter-district remedy, for all practical purposes, ended efforts by school districts to desegregate public school systems. In theory, separate but equal is now illegal, but in practice, public schools are largely separate and unequal.
During the past decades, federal courts have slowly but consistently dissolved the federal desegregation plans which had some initial success in desegregating public schools. Indeed, many school districts have asked federal courts to terminate their consent orders to desegregate public schools and to return control of public schools totally or partially back to local school boards. School boards have primarily *11 relied on the Supreme Court decision in Board of Education v. Dowell, which established the good faith standard to determine whether a school district has moved from de jure segregation to a unitary system. The ending of court-ordered and supervised desegregation plans, for all practical purposes, sanctions the legitimacy of segregated schools, so long as the school board is acting in good faith. In particular, states such as California, New York, Michigan, and Illinois represent the most segregated states for [African-American] students. However, many school districts in these states have asked the courts to end court ordered monitors of school districts.
This is not to suggest that control of schools should never be returned to local school boards who maintained de facto segregated school systems. The Supreme Court in Freeman v. Pitts stated that local autonomy of school districts is a vital national tradition. The concern, however, is that federal courts seem eager to return local control of schools out of frustration and defeat. Even where there may be vestiges of disparity lurking within the system, federal courts nevertheless readily relinquish control.
School districts that attempt to achieve racial integration by using racial classification must meet the strict scrutiny test. In McFarland v. Jefferson County Public Schools, the school board was partially successful in meeting this strict scrutiny test by using the Supreme Court's decision in Grutter v. Bollinger, which upheld *12 race-conscious admission policies in university admission programs. The school board was successful because their 2001 plan met the strict scrutiny test. To comply with Grutter, the school board define[d] with precision the interest being asserted in order to validate its use of race as an admission factor. The Jefferson County Public Schools stated the following interest:
To give all students the benefits of an education in a racially integrated school and to maintain community commitment to the entire school system precisely express the Board's own vision of Brown's promise. The benefits the JCPS hopes to achieve go to the heart of its education mission: (1) a better academic education for all students; (2) better appreciation of our political and cultural heritage for all students; (3) more competitive and attractive public schools; and (4) broader community support for all JCPS schools.
The school board's plan supports the principles in Brown; however, most school districts have given up on using race as a factor to integrate public schools. Consequently, public schools are more segregated now than in the 1970s and 1980s. Often segregated schools lack funding and educational resources, have poor facilities, offer less advanced courses and employ teachers with less skill and teaching experience. Even where minorities are attending desegregated schools, they are often humiliated by being placed in segregated classes designated for low academic achievers. Minorities and African-American males in particular, in desegregated schools, are also isolated and invisible to their white peers and teachers. It is now time for school districts and state education officials to take meaningful steps to effectuate*13 the decision in Brown, or at least renew efforts to enhance the quality of education for minorities, especially African-American males.