May 16, 2019 HUMAN RIGHTS

Past Is Prologue: African Americans’ Pursuit of Equal Educational Opportunity in the United States

by Janel George
Elizabeth Eckford attempting to enter Little Rock (Arkansas) Central High School after Brown v. Board of Education

Elizabeth Eckford attempting to enter Little Rock (Arkansas) Central High School after Brown v. Board of Education

Education has long been recognized as a mechanism for upward social mobility and full citizenship in American society, which is in large part why Africans enslaved in America were denied access to education—particularly reading instruction—during the slave era of the eighteenth and nineteenth centuries. Many slave owners feared that if enslaved individuals learned to read, they would seek their freedom. Opposition to enslaved individuals obtaining literacy was enshrined in law in many states and enforced through violence, imprisonment, and fines. And those who taught enslaved individuals to read were likewise penalized. Despite the threat of punishment, many enslaved individuals covertly learned how to read, and others risked reprisal by seeking to educate enslaved individuals. They recognized the value of education, including the value of literacy, as intrinsic to self-determination and the full citizenship denied to them under slavery. 

Chief Justice Earl Warren would later declare in the seminal case, Brown v. Board of Education (1954), that “education is the very foundation of good citizenship,” but many African Americans recognized the truth that education was elemental to full citizenship long before the legal victory in Brown would invalidate the “separate, but equal” doctrine that relegated them to second-class citizenship. Enslaved Africans’ pursuit of literacy was the first in many attempts by African Americans to pursue educational opportunities in America. These early pursuits would be followed by struggles for access to educational opportunity that changed the landscape of public education. 

 

Vivian Malone registering  as one of the first African Americans  to attend the University of Alabama in 1963

Vivian Malone registering as one of the first African Americans to attend the University of Alabama in 1963

Recently, African American students in Detroit’s public schools filed a claim, Gary B. v. Snyder, asserting that the state of Michigan denied them access to literacy in violation of the U.S. Constitution. Their claim echoes the same aspirations of enslaved Africans in America in the not-too-distant past who simply sought the right to read as elemental to participation in society. Although the Detroit students’ claim was denied by the U.S. District Court for the Eastern District of Michigan, it underscores the persistence of educational inequities stemming from the original sin of slavery and its progeny that continue to impact the educational and life outcomes of African Americans. 

Today, inequities impacting African American students’ educational experiences at the k–12 level include school discipline disparities, persistent resource inequities, and the trend of resegregation of public schools. Although slavery has been abolished, these inequities are the remnants of inequality rooted in slavery and institutionalized in systems, policies, and practices that perpetuate disparate educational experiences and outcomes for many African Americans. Tracing the origins of these inequities to their roots in slavery is central to addressing and remedying them. One venue for seeking relief for educational inequity has been the legal system. At times, the legal system has served to deepen inequities, and, at other times, it has helped to dismantle them. In examining the roots and current manifestations of educational inequities impacting African Americans, it is vital to also examine the efficacy of the legal system as a tool to help eliminate discrimination and promote policies and practices that improve the educational experiences and outcomes of African American students.

President Barack Obama and Education Secretary Arne Duncan visit a classroom at the Pathways in Technology Early College High  School (P-TECH)

President Barack Obama and Education Secretary Arne Duncan visit a classroom at the Pathways in Technology Early College High School (P-TECH)

One of the earliest legal battles for access to education predates Reconstruction. In 1850, free African American Benjamin F. Roberts attempted to enroll his five-year-old daughter Sarah in an all-white Boston elementary school near the Roberts’ home. Sarah was forced to walk past five other elementary schools every morning to make it to the all-black elementary school that she was forced to attend under the “separate, but equal” regime. Roberts attempted to enroll Sarah in a nearby elementary school, but she was forcibly removed and refused admission because of her race. Roberts’ subsequent legal challenge to Boston’s system of segregated schools filed on behalf of Sarah, Roberts v. the City of Boston, was unsuccessful and some of the case’s reasoning would be relied upon to uphold the “separate, but equal” doctrine in 1896’s Plessy v. Ferguson. While Roberts’ legal battle failed, his challenge to Massachusetts’ segregated schools led the Massachusetts State Legislature to pass a law banning school segregation in 1855, making it the first state to legislatively prohibit school segregation. It was an early victory for school desegregation efforts.

But the U.S. Supreme Court’s ruling in Plessy decades later was a setback. In the case, the U.S. Supreme Court denied African American Homer Plessy’s challenge to the “separate, but equal” doctrine and upheld the nation’s regime of racial apartheid. However, the plaintiff’s arguments in Plessy would lay the groundwork for the Brown victory over half a century later. 

Following the Plessy ruling, “separate, but equal” was enforced and public schools were among the most salient demonstrations of racial separation, with African American students consigned to substandard segregated schools apart from their white counterparts who disproportionately attended better-resourced schools. Maintained in Southern states through Jim Crow laws, but also observed as de facto segregation in the North, the separation of the races characterized the public landscape of American public life. Years before legal action would be taken to challenge k–12 public school segregation, then-Howard University Law School dean, Charles Hamilton Houston, would take his star law student, Thurgood Marshall, on a tour of southern states to observe the deplorable conditions of the public schools that African American students were consigned to attend. The trip would prove life-changing for Houston’s protégé, who would later argue seminal civil rights cases before the U.S. Supreme Court that would help dismantle racial segregation in both k–12 and higher education.

The catalyst for the most significant case related to k–12 school segregation, Brown v. Board of Education, came from an unexpected source. Almost a century after Benjamin Roberts’ unsuccessful legal challenge to Boston’s segregated schools, Robert R. Moton High School sophomore Barbara Rose Johns staged a student walkout in protest of the deplorable conditions at the segregated African American high school. The school had one microscope for its biology class and no cafeteria, gym, or lockers. Students often wore their coats all day due to the lack of heat. Some classes were held outside in temporary rooms with tar paper roofs, and some students were forced to take classes on school buses due to lack of classroom space. Johns and her classmates were discouraged by the deplorable school conditions. 

But the impetus for Johns’ protest of the school conditions occurred when a used school bus (handed down to the African American segregated school after it had been used by the white school) broke down on railroad tracks and was struck by a train, killing five black students, including one of her friends. Johns’ walkout forced the hand of civil rights attorneys led by Houston who were carefully crafting their legal challenge to school segregation. The walkout resulted in the filing of the case Davis v. County School Board of Prince Edward County, which would later be consolidated with four other cases challenging school segregation to become the landmark Brown ruling. 

The Brown ruling declared the “separate, but equal” doctrine unconstitutional, signaling the death knell for Jim Crow segregation. But while Brown invalidated de jure racial segregation, what was—and remains—much more difficult to eradicate is de facto segregation. The Brown ruling was complicated by the U.S. Supreme Court’s hesitancy to detail a remedy for the injury of racially segregated education. The years that followed the Brown ruling can be characterized as an era of massive resistance. Many states exploited the ambiguity of the ruling and took no proactive or timely measures to integrate public schools. Other states circumvented the ruling by opening private all-white “Christian” academies and abandoning public schools. 

Resistance to orders to desegregate public schools necessitated 1955’s Brown II, in which the Court urged states to act “with all deliberate speed” to desegregate public schools. But many states flouted the ruling and refused to act with any urgency to desegregate public schools. Virginia’s Prince Edward County Public Schools, where Barbara Rose Johns staged her historic walkout, opted to close their schools for five years rather than comply with desegregation orders. Battles to enforce Brown continued to be waged in the court system, where civil rights lawyers met massive resistance with ongoing litigation, including 1958’s Cooper v. Aaron, 1968’s Green v. County School Board, and 1971’s Swann v. Charlotte-Mecklenberg—until the U.S. Supreme Court issued mandates requiring state action to eliminate all vestiges of segregation “root and branch.” 

These legal victories were bolstered by passage of federal law that established federal civil rights oversight and enforcement mechanisms. While courts recognized the right to be free from discrimination based on race, color, or national origin as protected by the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, federal levers were needed to ensure that states complied with court orders. The passage of the Civil Rights Act of 1964, particularly its Titles IV and VI, helped to clarify federal enforcement authority. Section 601 of Title VI of the law, which prohibits discrimination based on race, color, or national origin in covered programs and activities, specifies compliance requirements for recipients of federal funds and participants in federal programs. Section 602 of the law allows for federal enforcement of Section 601 through regulations. Passage the following year of the Elementary and Secondary Education Act, which expanded federal funding of public education, also delineated responsibilities for recipients of those funds to comply with federal civil rights law. The combination of federal law and court oversight and enforcement helped to advance school desegregation efforts. As a result, the racial makeup of schools began to change and Brown’s promise of equal educational opportunity began to take root. The percentage of African Americans attending integrated schools rose to rates as high as 90 percent in the 1970s. 

But as integrated public education became a reality, another practice began to take shape that continues to impact educational opportunities for African American students. Many schools began to institute exclusionary discipline practices, like suspensions and expulsions, that take students out of the general classroom and disrupt their education. The Children’s Defense Fund conducted a study in 1975 highlighting data from the Department of Education’s Office for Civil Rights revealing higher rates of exclusionary discipline among African American students. Decades later, the Department of Education’s Office for Civil Rights’ Civil Rights Data Collection demonstrates the persistence of these inequities. Data show that African American students are suspended and expelled at rates that are disproportionately higher than those of their white peers. These discipline disparities begin as early as preschool for African American students and increase their likelihood of involvement with the juvenile justice system—a phenomenon known as the “school-to-prison pipeline.” 

Removal from the classroom contributes to student disengagement—as well as feelings of stigmatization when students do return to the classroom—and high school dropout rates, as well as increased criminal activity—all of which result in compromised educational and life outcomes. These discipline disparities are not the result of higher rates of misbehavior by African American students. Research has established that African American students misbehave at the same rates as their white peers, yet they are penalized more harshly. Instead, experts attribute discipline disparities to implicit (as well as explicit) bias held by teachers and school administrators that manifests in disparate treatment of and imposition of sanctions against African American students. Such biases are institutionalized in discriminatory discipline policies and practices, such as school discipline codes that deem natural hair worn only by African American girls as a dress code violation. 

The increased presence of police in schools—commonly referred to as “School Resource Officers”—has only amplified the likelihood of student involvement with the juvenile justice system. African American students also have higher rates of school-based arrests than their white peers. African American student interaction with law enforcement in schools often mirrors the over-policing that occurs in many African American communities. In the educational context, such negative interactions can have significant consequences, such as criminal involvement, decreased educational attainment, and compromised employment options. 

In addition to discriminatory discipline practices, significant resource disparities also negatively impact the educational experiences of many African American students in today’s k–12 public schools. The school conditions described by Detroit’s African American students in the Gary B. case illustrates the reality that school resource inequities are not vestiges of the past—they are persistent and pernicious in today’s educational system. The Gary B. case describes the conditions of the overwhelmingly African American Detroit Public Schools, including lack of core curriculum offerings, deteriorated school facilities, extreme temperatures necessitating school closings and early dismissals, rodent infestations, and structurally unsafe and defective school facilities. Such resource inequities are all too common among schools serving high numbers of African American and low-income students. 

But, legal efforts to secure equitable and adequate school resources have achieved mixed results. In the case of San Antonio Independent School District v. Rodriguez, the lead plaintiff, Demetrio Rodriguez, challenged the school funding scheme that resulted in resource inequities for schools on the west side of San Antonio, Texas, where students were disproportionately low-income and Mexican American. Rodriguez’s sons studied in a crumbling school building, lacking basic resources like books and certified teachers. Rodriguez observed that the wealthy district of Alamo Heights across town didn’t just have nicer buildings and more qualified instructors, but it also had a lower tax rate. In challenging the inequitable school funding scheme that disfavored low-income districts with low property tax bases, Rodriguez’s attorney, Arthur Gochman, argued that education is a fundamental right. Echoing arguments raised in the Brown case, Gochman asked the U.S. Supreme Court, “Are we going to have two classes of citizens? Minimum-opportunity citizens and first-class citizens?” 

Despite the compelling case presented on behalf of Rodriguez and—in what is perhaps the most consequential ruling to date regarding school funding—the Supreme Court held that there is no fundamental right to education in the U.S. Constitution. The Rodriguez ruling effectively foreclosed a federal remedy for addressing school resource inequities, leaving many plaintiffs to seek redress in state courts, relying upon state constitutional guarantees of educational opportunity in their arguments for equitable and adequate school resources. Nationwide, litigation related to school funding has produced mixed results. According to Columbia University’s Teachers College, between 1973 and 2017, plaintiffs won 27 school funding cases, states won 22 cases, and 12 cases are still pending. 

In addition to inequitable school resources, many public schools are experiencing a trend of resegregation that undermines the promise of Brown. Many African American students attend what are now classified as “hyper-segregated” schools—a term referring to schools segregated by both race and socioeconomic level. These schools also disproportionately lack the quality resources that students need to learn and thrive, such as credentialed and experienced educators, challenging curricular offerings, quality facilities, and access to technology. These segregated learning environments undermine opportunities to learn and negatively impact children of all races. 

The social science research of the husband-wife psychologist team of Drs. Kenneth and Mamie Clark relied upon by the Court in Brown documented the harm that segregated learning environments inflicted upon both African American and white children. Students relegated to segregated learning environments lose out on benefits of integrated education, including development of cross-cultural understanding, increased civic participation, improved communication and critical thinking skills, and the ability to interact well with others of diverse backgrounds. 

In a global economy, segregated learning environments are detrimental to the nation’s future global competitiveness. Yet, the phenomenon of hyper-segregated schools—fueled by residential segregation and withdrawal of court oversight over many desegregation orders—is spreading. And recent court rulings striking down district efforts to promote integration and racial diversity have discouraged districts from taking proactive action to ensure racially diverse learning environments out of fear of litigation. 

The pervasiveness of racial disparities in school discipline practices and resources, as well as increasing resegregation of public schools, is undermining the promise of equal educational opportunity for African Americans. While many African American students succeed despite pervasive educational injustice, others experience compromised life outcomes, including limited opportunities to pursue higher education as well as diminished employment prospects and lifetime earnings. Too many African American students continue to confront very the educational injustices litigated in Brown. And polarizing political rhetoric that criminalizes and pathologizes African American students only diverts attention and resources away from the work of remedying disparities. Some argue that students should practice “grit” and achieve in spite of deplorable conditions. This argument discounts the import of resources, like qualified and experiences educators, on student outcomes. 

The hope of Brown is the potential to eradicate a public education system that differentiates educational opportunity by race. Our nation’s public schools still hold the potential to realize Brown’s promise, but continued vigilance, including court oversight and enforcement of civil rights laws, and refusal to normalize inequality are necessary fulfill this promise to future generations. 

Janel George is senior policy advisor with the Learning Policy Institute’s Washington, D.C., office, where she enacts policy and practice to promote equal educational opportunity for all students. She is also co-chair of the ABA Civil Rights and Social Justice Section’s Civil Rights and Equal Opportunity Committee and the new African American Affairs Committee