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Excerpted From: Joseph O. Oluwole and Preston C. Green III, Riding the Plessy Train: Tracking in the Lower Courts, 37 Chicana/o-Latina/o Law Review 1 (2020) (156 Footnotes)(Full Document)


OluwoleandGreenThere is sometimes the misconception that microsegregation only persists in the South given that segregation was historically entrenched in the South. However, judicially-sanctioned microsegregation goes back as far as 1849 when the Massachusetts Supreme Judicial Court authorized school-level segregation in ruling that school officials have absolute authority to “arrange, classify, and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare.” The Supreme Court of Indiana held similarly:

[T]he placing of the white children of the State in one class and the negro children of the State in another class, and requiring these classes to be taught separately, provision being made for their education in the same branches, according to age, capacity, or advancement, with capable teachers ... does not amount to a denial of equal privileges to either, or conflict with the open character of the system required by the constitution. Court of Appeals of New York unconscionably opined, in disregard of minorities rights, that:

If the right, therefore, of school authorities to discriminate, in the exercise of their discretion, as to the methods of education to be pursued with different classes of pupils be conceded, how can it be argued that they have not the power, in the best interests of education, to cause different races and nationalities, whose requirements are manifestly different, to be educated in separate places. we know that, “[i]n the years immediately following legally mandated desegregation in the South, for example, some districts actually separated students by race using classroom partitions and segregated lunchrooms.” Article is an epilogue to our Article “Riding the Plessy Train: Reviving Brown For A New Civil Rights Era For Micro-Desegregation” published in the Chicana/o Latina/o Law Review. This Article examines micro-desegregation in the lower courts. It presents instances of the limited lower court micro-desegregation victories as well as lower court rulings that can serve as exemplars. The Article also discusses and critiques disappointing lower court rulings. It argues that there must be a continuing duty to desegregate as some lower courts have acknowledged. Furthermore, it calls on the Supreme Court and other lower courts to forcefully enforce this duty to ensure complete micro-desegregation. The final Part points out that time is of the essence for minorities in lower tracks and beckons the judiciary to act promptly to provide redress. It also suggests some principles for school districts and the judiciary for a consequential micro-desegregation era.

If the judiciary is, in truth, a “defender of minority rights” and “avant-garde in social justice struggles”, it is imperative that it carry on this banner to fight this enduring bastion of school segregation. Under this civil rights era, desegregation must be mandated, “not because it will necessarily improve pupils' scores in the three R's, but because the Constitution requires it.” . .]

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible. Marshall

In this vein of wisdom, we must confront as a nation the reality of tracking. The reality is that tracking is hurting minority students. The reality is that tracking perpetuates racial stereotypes of minority intellectual inferiority. The reality is that tracking leads to confirmation bias of inferiority through test scores as well as teacher and counselor recommendations and expectations. The reality is that tracking is condemning minority students to life sentences of poverty, limited opportunities and vicious cycles. The reality is that tracking is depriving minorities of equal educational opportunities. “The reality is that you can't close the achievement gap until you close the curriculum gap that is created by tracking. We have learned from experience that when teachers teach the same high-level rigorous curriculum to all students, the achievement gap narrows.” should detrack into heterogeneous classrooms that use instructional strategies that work well with diverse students in heterogeneous classrooms. Such strategies include acceleration as well as cooperative learning models such as small-group teaching, Jigsaw, and Student Teams-Achievement Divisions (STAD). Teachers should incorporate differentiated instruction models such as active processing activities, flexible grouping, concept maps, cue cards to scaffold learning, silent reading with purpose, extension activities, multiple entry points, individual conferences, differentiated questions, constructivist learning, and varied journal prompts. Teachers should be provided professional development that teaches and coaches them how to work effectively with students of all races using these and other strategies in heterogeneous classrooms. Professional development should also be offered to retrain educators and to educate them on minority cultures so as to eliminate the low expectations paradigm ingrained in the tracking system. Similarly, lesson plans and extracurricular activities should be designed to teach students to value their peers of all races and to see them as coequals.

As Jeannie Oakes found in her extensive research, “heterogeneous grouping, reflecting not only the full range of student achievement and aptitudes but also the socioeconomic and ethnic diversity of schools would provide more equitable educational experiences than does a system of tracking.” Indeed, detracking has been shown to improve student achievement--almost entirely closing the racial achievement gap in the Rockville Centre School District (New York), and earning South Side High School (New York) the Department of Education's Blue Ribbon School of Excellence. activities should be planned to bring families together from various racial backgrounds to foster interracial understanding and appreciation. These activities should feature curricular and extracurricular performances by students of various races so that parents can be educated about the potential and intelligence of students of all races. Without this education, it would be difficult to get some parents to embrace detracking:

[D]etracking won't seem logical to either teachers or parents unless credible school leaders counter some deeply held cultural beliefs: that innate ability is more important than schooling, that only some students can benefit from accelerated instruction, and that beliefs must be brought into teachers' work as they revise the curriculum, design lessons, and develop assessments. Community hostility to desegregation should never excuse microsegregation nor should it dictate the court's willingness to condemn the practice. In the fight for micro-desegregation, more courts must take a resolute stand as did the Eastern District of Texas, which emphatically stated that “this Court remains undeterred by the opposition of popular opinion.” Righteousness and justice should not flinch, ripple, or whisper based on popular or unpopular opinion. We agree with Justice Sotomayor that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” We must, without fear, guilt, derision, or shame, engage in racial conversations that will thwart the institutionalization of racism.

As the Supreme Court has ruled, “[t]he measure of any desegregation plan is its effectiveness.” If we are to truly address racial injustice and racial segregation in schools, we must confront them with race-conscious measures. Relying on race-neutral measures merely puts a Band-Aid on a gaping wound. “This employment of race may be compared to the building of a back fire as a means of containing a conflagration. Skillfully done, carefully controlled, the back fire will work to extinguish the greater blaze and not function to increase the devastation.” The Constitution does not require school officials to exhaust “every conceivable race-neutral alternative” before using race-conscious measures. need to view tracking for what it is--a vestige of notions and assumptions that underscored historical racial segregation. As Professor Rush reminds us, “dominant cultures largely control children's education and impose identities on all of them.” Tracking is a vehicle for the imposition of an inferior-identity complex for minorities. Moreover, tracking helps “dominant cultures that purportedly support the equality of all people nevertheless define equality in ways that promote their privileged status.” If the dominant culture is truly dedicated to equality, then it is due season to root out microsegregation.

Abstention from desegregation reform, difficult conversations, and judicial engagement is not an option as classroom segregation will only continue to fuel racial arrogance, ignorance, discord, incivility, and distrust. As Professor David Kirp remonstrates, “[t]hat segregated school districts historically offered an inferior education to black students does not justify maintaining such status differentials through the device of tracking.” The longevity and tradition of historical practices should never countenance sentencing minority students to educational and intellectual penitentiary. Further, that the practices are subtle does not excuse overlooking or tolerating them. The Supreme Court acknowledges as much:

[. . .]

Yet it must be acknowledged that the potential for discrimination and racial hostility is still present in our country, and its manifestations may emerge in new and subtle forms after the effects of de jure segregation have been eliminated. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its school systems. Where control lies, so too does responsibility. time for patience has run out. As Professor Willis Hawley admonishes, “waiting out the demise of prejudice and discrimination is waiting for a miracle.” It is time for the judiciary to earnestly rectify the injustice. The march against microsegregation must start now so that, very soon, the “discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us.” To promptly ensure this, the judiciary must rethink its “decision to limit the ambit of the equal protection guarantee to calculated discrimination and thus exclude the less visible but equally harmful and more pertinent forms of unconscious racial aversion”; otherwise the judiciary could be complicit in discrimination. Unless the Court has equivocated, deference and local control are “not sacrosanct” and must yield in obeisance to the Fourteenth Amendment. Courts must be willing to step in when school districts are not upholding justice and the rights of minorities. Courts should demand accountability from microsegregated schools by requiring such schools to give regular reports on the racial breakdown of students assigned to each classroom for every grade level. Compliance monitors should be judicially-appointed to invigilate school's microsegregation policies and practices. for assigning students to classrooms should be entirely reformed to avoid racially-identifiable classrooms. This is extremely important because “[n]othing in schools leaves children behind more systematically than tracking and ability grouping.” Tracking continues to perpetuate a dual education system through microsegregation as does the testing used to assign students. Mired in this injustice, the vicious cycle continues from tracked parents to their tracked children; and “[b]y foreclosing the chance for parents to challenge ability grouping successfully, the courts are denying African American [and Hispanic] children the opportunity to attain the high quality education their parents were refused.” The analysis above shows that there is already enough legal foundation in the Court's desegregation jurisprudence to enforce micro-desegregation. The Court need only enforce the constitutional justice and righteousness in its own words explored earlier herein. The Supreme Court must uphold the “affirmative responsibility” of school districts to ensure that “pupil assignment policies ... are not used and do not serve to perpetuate or re-establish the dual school system.” students have waited too long for the judiciary and school boards to act in equity in compliance with Brown an accelerated timeline for dismantling in-school segregation must be imposed and enforced. “The later the start, the shorter the time allowed for transition.” This is no time for deliberate speed. Micro-desegregation deserves its own time in the limelight.

Joseph O. Oluwole, J.D., Ph.D., is an attorney-at-law and Professor of Education and Law.

Preston C. Green III, J.D., Ed.D., is a John and Carla Klein Professor of Urban Education, Professor of Educational Leadership and Law at the University of Connecticut.

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