I attended an integrated public high school from 1978 to 1981. Forty-five percent of the student body was white, 35 percent was African-American, 10 percent was Latino, and 10 percent was Asian-American. The integration was more than skin-deep. Classes, the student council, sports teams, theater productions, and friendships were all truly integrated by race and socioeconomic status. My classmates and I thrived within this diversity, and I am convinced that it benefits us to this day.
Sadly, since the late 1970s and early 1980s, American schools have been growing more segregated. This is a tragedy not just for white students, who are deprived of the social benefits of integration, but also for poor and minority students, who are deprived of the “middle class connections” crucial to success in college and the job marketplace. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 333–34 (2003). Experts agree that a high concentration of poor students in schools—that is, one exceeding 75 percent—has a crushing impact on academic achievement. A given student who is poor has the same potential as any other student, but concentrating poor students together can overwhelm teachers, given the multitude of problems poor students often bring into the classroom, for example, those associated with hunger, exposure to violence, or substandard housing.
Because integration is a “win-win” situation, benefiting white, middle-class students as well as poor and minority students, one would think that society would pursue it at all costs. Unfortunately, just the opposite is true. Although overt race-based school segregation has been eradicated thanks to Brown v. Board of Ed-ucation and its progeny, most urban school systems are overwhelmingly poor and minority and most suburban school systems are overwhelmingly white and middle class. Indeed, one scholar has suggested that the “[urban/suburban school] district boundary line is the new Jim Crow segregation line.” John C. Brittain, Symposium: Brown v. Board of Education at Fifty: Have We Achieved Its Goals? 78 St. John ’s L. Rev. 281, 284 (2004). As middle-class, predominantly white parents flee cities in search of higher performing districts (leading to bidding wars in suburban housing markets) low-income parents, who are predominantly minority, cannot afford to move and are left behind in the cities.
Three recent lawsuits challenged the de facto segregation existing between urban and suburban school systems with mixed results. Typically, such lawsuits invoke a state constitution’s education clause in arguing that de facto segregation is unconstitutional. In Minneapolis, Minnesota, a settlement was reached shortly after the case was filed, allowing some increased opportunities for urban students to attend suburban schools. See Minneapolis NAACP v. Minnesota/ Xiong v. Minnesota, Case Nos. 95-14800 & 98-2816, Settlement Agreement ( Minn. Dist. Ct., Hennepin Cty., 4th Jud’l Dist. 2000). In Hartford, Connecticut, the state’s highest court ruled that de facto segregation was indeed illegal under the state constitution in Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996). Despite this landmark ruling, however, political resistance to implementing the mandate led plaintiffs eventually to accept a settlement that provided modest gains at best. Al-though the parties flirted with a statewide remedy, the negotiated remedy was limited to Hartford. It also ruled out any mandated steps to guarantee integration, instead relying on voluntary measures that would re-quire “buy-in” from suburban schools and parents. This case demonstrates that, when dealing with resistance to integration, even legal victories can be short-circuited.
A case in Rochester, New York, proved even more disappointing. Paynter v. State of New York, 100 N.Y.S.2d 434 (2003), focused upon the extremely high poverty concentration in the Rochester school system and the effects of this concentration on student performance. The demographic data are stark. Ninety-one percent of students in the Rochester suburbs are white and only 16 percent are poor. In the Rochester school system, the picture is reversed. More than 80 percent are nonwhite and an astonishing 90 percent are poor. The academic performance rates reflect the effects of poverty concentration. In a recent year, 84 percent of suburban high school seniors graduated on time while only 27 percent of their city counterparts did.
In Paynter, the plaintiffs alleged that this state of affairs denied Rochester schoolchildren the sound basic education guaranteed to them under the New York state constitution. In 2003, the New York Court of Appeals acknowledged the force of the plaintiffs’ claims. The court recognized that Rochester was marked by “an abundance of terrible educational results—some of the lowest test scores and graduation rates in the state.” Id. at 440. The court “accept[ed] as true that concentrated poverty and racial isolation [are correlated with] poor educational performance; . . . that plaintiffs attend schools populated overwhelmingly by poor and minority students who achieve inadequate results; and that, as a practical matter, plaintiffs have no alternative but to live where they do and attend schools in the [Rochester school system].” Id. at 441.
Despite this direct admission of the problem, the court refused to take action, reasoning that it could not do so without “subvert[ing] . . . local control.” Id. at 442. The court found that allowing students “to attend schools outside their districts at no additional cost . . . would . . . diminish local control and participation, as the residents of more attractive districts would end up having to provide for students from other districts.” Id. at 442–43.
Despite the court’s implicit recognition that the system was constitutionally suspect, it nonetheless dismissed the case due to overtly political concerns. That is, the court would not strike down the system because that action would be too unsettling to suburban taxpayers. One should be deeply disappointed by such a ruling but not unduly surprised because the tide of public opinion definitely has turned against efforts to integrate schools. As Ted Shaw, director of the NAACP Legal Defense and Educational Fund, has candidly explained:
‑I believe deeply in the work we do at the Legal Defense Fund and the importance of the law. But I believe just as deeply that unless there’s a movement that creates a political context, a larger context in which the courts have a role to play that is informed by the larger context, you end up with litigation that is like a ship without water.
‑The civil rights litigation of the 1950s and ’60s was effective because of the whole social and political context of those times. We don’t have that social and political context today.
‑Glenn Cook, ed., Ted Shaw Remembers Brown, in Brown v. Board of Education: The Ruling That Changed America, Am. School Bd. J., at 25 (Apr. 2004 special issue).
Against such odds, can anything be done to turn the tide? Yes, and we must continue to work toward school integration. Failure to solve a problem does not mean that the problem has gone away. The issue of national healthcare reform is a case in point. In the wake of the Clinton administration’s unsuccessful attempt to address healthcare reform, the number of uninsured Americans continues to rise, which constitutes a healthcare crisis. A similar crisis exists in urban education, where the high failure rate and high dropout rate perpetuate the cycle of poverty and desperation found in many urban neighborhoods.
While continuing to brainstorm to develop promising new legal theories, we can have a more immediate im-pact by taking bold steps for our own children. Rather than buying houses in the best suburban school districts, we can send our children to the best urban schools we can find. Such programs do exist, and they are usually the most integrated schools in the region. My wife and I chose to do this, and our children are thriving both socially and academically. We have to start somewhere, and it might as well be in our own neighborhoods.