Excerpted from: Danielle Holley-Walker, A New Era for Desegregation , 28 Georgia State University Law Review 423 (Winter, 2012)(248 Footnotes)
In recent years, there has been significant activity in a handful of desegregation cases. Many of these cases have remained dormant for decades, but these pending cases are now being used to combat resegregation, gain additional resources for impoverished school districts, and challenge the growing influence of charter schools.
A. The Role of the Federal Government
The federal government will likely be the decisive factor in determining whether there is a new era in desegregation cases. One of the reasons that desegregation litigation has failed to have a significant impact in recent history is that over the past forty years, under no administration, Democratic or Republican, has DOJ taken a thoughtful, transparent, comprehensive, and strategic approach to its school desegregation Due to the federal government's role as plaintiff in a large number of the remaining desegregation cases and the historic lack of attention to these cases, if desegregation cases are going to become reinvigorated, the federal government will have to take a leading and strategic role in the process.
The history of the federal government's role in desegregation cases is complex and has had more twists and turns than a mystery novel. Mirroring the broader history of desegregation itself, the federal government took almost no steps to initiate school desegregation litigation in the ten years following Federal involvement in desegregation cases took off after the passage of the Civil Rights Act of 1964, specifically Title IV, which authorized the Attorney General to begin desegregation litigation against states and school districts after receiving a written complaint from private individuals, and Title VI, which prohibited racial discrimination in programs that received federal money. In the 1960s the federal government brought approximately six hundred administrative proceedings and over five hundred lawsuits against school districts and states to force desegregation. President Nixon's administration was the end of these aggressive initiatives and kicked off the next several decades of neglect (sometimes benign, at other times intentional) of the traditional desegregation cases.
After the election of President Barack Obama, there have been questions about the approach that the DOJ and other federal agencies will play in the continuing struggle to racially integrate America's public schools. The current Civil Rights Division of the DOJ has publicly expressed a commitment to enforcing the traditional desegregation orders in cases in which the United States is a plaintiff. The Civil Rights Division recently stated, The enforcement of the Equal Protection Clause and Title IV in school districts is a top priority of the Justice Department's Civil Rights
An important indication of the DOJ's renewed commitment to desegregation cases is the recent activity in a desegregation case in Walthall County, Mississippi. The Walthall County school system was ordered to desegregate in 1970. In the 1970 desegregation order, the district court enjoined the school district from:
[D]iscriminating against any student on the basis of race or color in the operation of the Walthall County School District and failing or refusing to immediately terminate the operation of a dual system of schools based on race and to operate, now and hereafter, a single, non-racial unitary system of public schools.
In 2007, the DOJ sought information from the school district about whether the district was in compliance with the 1970 Order. After receiving the school district's responses, the DOJ alleged that the district was in violation of the desegregation order. The DOJ asserted that the school district allowed approximately three hundred students a year to complete intra-district transfers. Most of these students were white students who sought to transfer out of their assigned residential zoned school to another school in the district that is predominately white. These transfers allowed one group of schools to become racially identifiable white schools, while the student enrollment in other schools became predominately black.
The DOJ also alleged that the school district administrators clustered disproportionate numbers of white students into designated classrooms at three schools, creating segregated, all-black classrooms at each grade
The school district declined to file a response to the DOJ's allegations, and the district court entered a finding that the evidence supported the DOJ's allegations. The district court concluded that the school district was in violation of the 1970 Order and ordered the school district to deny all requests for intra-district transfers, except in limited circumstances. The district court further ordered the school district to cease using race in the assignment of students to classrooms in a manner that results in the racial segregation of
A further indication of the DOJ's seeming renewal of its commitment to the desegregation docket is the ongoing monitoring provisions the DOJ sought in the Walthall County case. Upon the DOJ's request, the district court ordered the school district to annually report the numbers of intra-district transfers and the racial demographics in classrooms. This signaled the DOJ's intention to closely oversee the school district's efforts to comply with the most recent court order.
The DOJ cited the threat of resegregation as its primary reason for reactivating the Walthall County, Mississippi, desegregation case: More than 55 years after Brown v. Board of Education, it is unacceptable for school districts to act in a way that encourages or tolerates the resegregation of public
Of course, the renewed activity of the DOJ and private plaintiffs to enforce desegregation orders may also spur school districts to actively attempt to close the pending cases. As noted by Wendy Parker, many school districts are aware they are still under a desegregation order, but many districts do not actively seek to have the cases terminated.
B. The Role of Private Plaintiffs
There are also indications that in desegregation cases with private plaintiffs, there may be a renewed effort to enforce desegregation orders.
This renewed interest of private plaintiffs is evident in the ongoing desegregation case in Tangipahoa Parish, Louisiana. Considering the centrality of football to Southern culture, it may come as no surprise that a dispute over the hiring of a high school football coach led to the first significant activity in decades in a desegregation case in Tangipahoa Parish. The 1965 desegregation case was filed by private plaintiffs who were represented by lawyers from the NAACP Legal Defense Fund.
The plaintiffs alleged that the failure of the school district to hire an African-American football coach was a classic example of how those in control of the Tangipahoa Parish School System have historically ignored and refused to respond to their responsibility under the Fourteenth Amendment to eliminate all vestiges of racial discrimination in the public school In particular, the plaintiffs argued that without the ongoing supervision of the district court in the desegregation case, the school district continued to engage in a historical pattern of racial discrimination against black teachers and administrators. The plaintiffs urged the district court to resume an active role via the desegregation case and to provide oversight for the hiring decisions of the school district. The plaintiffs also insisted that the burden was on the school district to demonstrate that its actions were not racially discriminatory, due to the judgment that the school district violated the Equal Protection Clause.
In the wake of their initial Motion for Further Relief, the plaintiffs filed additional motions, requesting the court make findings and enter orders related to student transfers and compose interracial committees to locate qualified minority faculty members. After an extensive evidentiary hearing, the district court ordered the hiring of an African-American football coach and it ordered the defendant school district to draft a consent order to address other issues, such as student transfers.
Almost two years after that order, and after countless negotiations between the parties in consultation with the court's compliance officer, the district court issued a comprehensive order to address the conditions and facets of the operations of the school system in which additional remedial efforts are needed and for which judicial supervision should The district court focused on several areas: student assignment, administrative and faculty assignments, and implementation of the order.
The recent activity in the Tangipahoa Parish case provides a window into the potential future of traditional desegregation litigation. These cases require ample financial and time resources for plaintiffs. These cases may lay dormant for a substantial time; often, there must be an event to precipitate the commitment of resources to pursue the essential reopening of the case. The scope of the court oversight is potentially broad and may impact a diverse number of topics.
In lean economic times, a desegregation case may provide a unique opportunity to allocate additional resources to impoverished school districts and minority students.
C. Desegregation and School Choice
Frustration with school choice initiatives, particularly the proliferation of charter schools, may also provide an impetus for private plaintiffs to seek to enforce desegregation orders. Traditional desegregation cases may become a battleground for concerns about racial isolation in charter schools and the broader debate between integrationists and reformists. The ongoing desegregation litigation in Little Rock, Arkansas, provides an instructive example of the way desegregation and school choice come into tension. In 1982, the Little Rock School District (LRSD) filed suit against the Pulaski County Special School District (PCSSD), the North Little Rock School District (NLRSD), the State of Arkansas, and the State Board of Education. These three school districts are all located in Pulaski County, Arkansas, the most populated metropolitan area in the state. LRSD prevailed in the lawsuit, with a finding that the state and the school districts acted concurrently in engaging in segregative practices across school district lines. The Eighth Circuit concluded that:
The defendant school districts have acted concurrently and independently to perpetuate the interdistrict problem of school segregation. The long legacy of inferior schools for blacks in PCSSD and NLRSD ... induced many blacks to attend school in LRSD, often with a subsidy from PCSSD or NLRSD. PCSSD ... has perpetuated segregation through school siting and student assignment, unequal apportionment of the transportation burden between the races, failure to meet staff hiring goals, overclassification of black pupils in special education programs, and failure to cultivate the full participation of black students in the educational process.
The court further found that the state and PCSSD engaged in practices that created and perpetuated housing segregation in Little Rock, further contributing to racially segregated schools across all three districts. The school districts urged the court not to find inter-district violations in the wake of the Supreme Court's decision in Milliken The Eighth Circuit rejected the comparison to Milliken I, finding that Pulaski County had a history of state-imposed segregation, inter-district transfers, boundary changes, and housing discrimination that were not part of the record in Milliken
These findings of inter-district constitutional violations led to a 1989 settlement agreement between the parties (1989 Settlement The key features of the settlement agreement were: that all three school districts would permit and encourage voluntary majority-to-minority inter-district the designation of inter-district schools that would maximize the participation of students from all three districts and have an ideal racial balance of 50% black and 50% non-black; the creation of additional magnet schools with racial balancing goals to encourage voluntary inter-district transfers; and the infusion of state funds to create these schools and fund transportation for inter-district transfers.
In May 2010, the LRSD filed a motion seeking enforcement of the 1989 Settlement Agreement. LRSD alleges that the State Board of Education has violated the agreement by authorizing the uncontrolled inter-district movement of students in Pulaski County by its unconditional approval of open-enrollment charter schools in Pulaski The Arkansas Charter Schools Act of 1999 gives the State Board of Education the authority to approve applications for open enrollment charter schools. The Act specifies that for school districts under desegregation orders, the State Board of Education shall carefully review the potential impact of an application for a public charter school on the efforts of a public school district or public school districts to comply with court orders and statutory obligations to create and maintain a unitary system of desegregated public LRSD alleges that the State Board of Education has failed to properly apply this portion of the Charter Schools Act.
LRSD alleges that the State Board of Education has approved essentially two groups of charter schools that violate the 1989 Settlement Agreement. No excuses charter schools have been approved for operation within the boundaries of LRSD. These charter schools have almost exclusively black enrollment and are high-poverty schools. The plaintiffs allege that these no excuses charter schools are racially isolated and will likely suffer from the trends seen in other high-poverty schools, such as a lack of highly qualified teachers and administrators and a lack of parental involvement.
The State Board of Education has also approved a group of magnet charter schools in Pulaski County. The plaintiff argues that these schools do not meet the racial balance goals of the 1989 Settlement Agreement because white students are overrepresented, and that these schools are draining non-black students and high performing students from the traditional public schools in Pulaski The plaintiff is requesting that the district court enjoin the approval of any additional open enrollment charter schools in Pulaski County and any increase in the enrollment of existing charter schools.
This latest development in the Little Rock desegregation case is an important moment in the history of traditional desegregation cases. As the UCLA Civil Rights Project demonstrates, the debate surrounding race and charter schools has been ongoing over the last few decades as charter schools have risen in popularity. Now, through the prism of a traditional desegregation case, a district court will have the opportunity to explicitly decide whether charter schools drain high-achieving students from the traditional public school systems and whether authorizing large numbers of charter schools encourages patterns of racial segregation.