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October 01, 2011

Voluntary Desegregation, Resegregation, and the Hope for Equal Educational Opportunity

by Derek W. Black

In 2007, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), decided its first school desegregation case in over a decade. The case was distinct from all previous desegregation cases to reach the Court because it involved voluntary rather than mandatory desegregation. The issue before the Court was the extent to which school districts that are not under a legal obligation to remedy past discrimination can still use race classifications to achieve desegregation or diversity. In a convoluted opinion, the Court held that districts are free to use race to integrate and diversify their schools under some circumstances. They must have a compelling interest for doing so—eliminating the negative effects of racial isolation or achieving the educational benefits of diversity—and adopt plans that are narrowly tailored to that end.

The Court, however, applied a stringent narrow tailoring analysis, which left many to wonder whether any voluntary desegregation plan might realistically meet the standard. In the immediate aftermath of the Court’s opinion, advocates scrambled to devise and identify plans they believed would pass constitutional muster, knowing that the failure to do so would effectively concede the end of desegregation in our nation’s schools. At the time of the Court’s opinion, only a small number of school districts were still under mandatory court order to desegregate, and their numbers steadily drop with each ensuing year. Soon, voluntary desegregation will be the only means to maintain whatever integration currently exists and potentially reverse an overall trend of rapid resegregation.

Reversing the trend of resegregation is important, not just for the sake of racial balance, but because segregated schools—de jure or de facto—exact a number of harmful impacts on the students who attend them. While various policies currently compete for attention at the federal and state levels with the promise of reducing the achievement gap, desegregation is the only policy with a long and consistent track record of improving educational outcomes for disadvantaged students. For decades, social science has confirmed that the level of racial isolation and poverty in schools directly correlates with the academic achievement of the students in those schools. In short, nothing less than the chance to receive a basic and quality education is at risk in voluntary desegregation.

Fortunately, the steadfast commitment of advocates to defend voluntary desegregation and diversity goals has recently begun to pay dividends. In the winter of 2012, the U.S. Department of Justice and the Office for Civil Rights jointly issued policy guidance that supports the goals of voluntary desegregation and diversity plans and offers suggestions as to how to achieve them. In addition, the Third Circuit Court of Appeals settled a key question regarding race-conscious redistricting of schools that makes the task easier for school districts attempting to diversify or desegregate. With a consensus forming around the appropriate goals and methods of voluntary desegregation and diversity plans, the most important step is to take to well-intentioned districts the message that they are free to act.

Understanding the Court’s Opinion and Its Effect

The Court’s decision in Parents Involved was confusing to almost all but the closest followers of the Court because its decision was a 4–1–4 split, with Justice Anthony Kennedy’s opinion at the center. He concurred with Chief Justice John Roberts’ opinion that the desegregation plans in question were subject to strict scrutiny and not narrowly tailored, making Justice Kennedy the fifth vote to strike down the desegregation plans before the Court. But Justice Kennedy disagreed with Chief Justice Roberts’ position that the only compelling interest that justifies the use of race classifications in elementary and secondary schools is remedying past discrimination. Instead, Justice Kennedy agreed with the four dissenters on this point and wrote that eliminating the negative effects of racial isolation and achieving diversity are also compelling interests. Under the legal prevailing tests for analyzing Supreme Court precedent, Justice Kennedy’s opinion provides the controlling rationale and holding in the case. See Marks v. United States, 430 U.S. 188 (1977) (stating the test for determining the holding in split decisions); see also Hart v. Cmty. Sch. Bd., 536 F. Supp. 2d 274, 283 (E.D.N.Y. 2008) (applying the Marks analysis and indicating that Justice Kennedy’s concurrence was the controlling holding of Parents Involved).

Recognizing Justice Kennedy’s opinion as controlling, Parents Involved stands for three major principles. First, schools that individually classify students by race and then assign them to a school on this basis are subject to strict scrutiny, which requires them to establish a compelling interest to justify the plan and prove that the means they chose to achieve this objective are narrowly tailored. Second, eliminating the harmful effects of racial isolation and achieving the benefits of diversity are compelling interests. Third, student assignment plans that do not classify or assign individual students by race, but rather only consider race in a general way when redrawing school district boundaries, building new schools, or targeting recruits, are unlikely to even trigger strict scrutiny.

While on balance this holding is positive, it represents both victories and losses for desegregation advocates. The major victories are relatively obvious. Some feared that the Court would strike down voluntary racial desegregation under all circumstances and possibly even overturn the Court’s holding from Grutter v. Bollinger, 539 U.S. 306 (2003), that approved of race-conscious admissions policies to achieve the educational benefits of diversity in higher education. The Court in Parents Involved did neither and, instead, firmly established that voluntary desegregation can continue. Equally important, Justice Kennedy’s indication that desegregation plans that do not use individual racial classifications, but rather only consider race generally, are unlikely to receive strict scrutiny was an unexpected victory. Many assumed that all race-conscious voluntary desegregation plans would be treated alike, regardless of whether the Court struck down or upheld the plans in Parents Involved.

The Court’s holding, however, also represents significant losses. First, voluntary desegregation is, in many instances, now subject to strict scrutiny. Second, those plans that rely on individual race classifications in assigning students to schools must engage in an individualized review of each student analogous to that which the Court approved of in Grutter. While strict scrutiny and individualized admissions may serve a purpose in higher education, they serve little purpose in primary and secondary education. Higher education involves competitive merit-based admissions, but with the exception of a portion of magnet schools and specialized programs, primary and secondary education does not involve any sort of competitive student assignments. Moreover, even if a voluntary desegregation plan assigns a student to a school other than the one he or she sought, the result is not an absolute denial of educational opportunity. Rather, the district provides opportunities in another school within the district. Finally, while school districts might pay close attention to race in the effort to ensure that all schools are racially integrated, no group is systematically favored over another. Voluntary desegregation “prefers” multiracial schools, not individual racial groups. The extent to which race will even play a role in any given assignment varies depending on the existing racial makeup of a school, the number of students seeking assignment, the number of available seats, and the number of students who have siblings at the school. In many instances, an individual’s race will be entirely irrelevant to his assignment.

Recognition of these distinctions would have exempted voluntary desegregation from strict scrutiny and allowed school districts a measure of flexibility as they confront ever-shifting demographic trends and parental preferences. In fact, one lower court prior to Parents Involved noted these differences and applied intermediate scrutiny instead. Comfort ex rel. Neumyer v. Lynn Sch. Comm., 283 F. Supp. 2d 328, 366 (D. Mass. 2003). As it stands now, districts must weigh the need for achieving voluntary desegregation against the legal scrutiny a race-based plan will inevitably bring.

Recent Clarifications

While much of the confusion surrounding the Court’s opinion in Parents Involved was attributable to its split decision, some of it was a result of misinformation from the federal government during the Bush administration. On August 28, 2008, the Office for Civil Rights issued a “Dear Colleague” letter to school districts that offered a blatantly inaccurate statement of the Court’s opinion. The Office for Civil Rights premised its letter entirely on Chief Justice Roberts’ plurality opinion in Parents Involved and failed to even mention Justice Kennedy’s pivotal opinion. Because the letter failed to address Justice Kennedy’s controlling opinion, it incorrectly stated that the Court has recognized that “a government interest is compelling for equal protection purposes in the school context in only two instances: to remedy the effects of intentional discrimination and to obtain a diverse student body in higher education.” Stephanie J. Monroe, Office for Civil Rights, U.S. Dep’t of Educ., The Use of Race in Assigning Students to Elementary and Secondary Schools (Aug. 28, 2008). The letter further misled school districts by going beyond even Chief Justice Roberts’ plurality opinion to “strongly encourage [ ] the use of race-neutral methods for assigning students to elementary and secondary schools.” Id.

In the winter of 2012, the Obama administration finally removed this letter from the Office for Civil Right’s website and replaced it with more helpful guidance. See U.S. Dep’t of Justice, Civil Rights Div., & U.S. Dep’t of Educ., Office for Civil Rights, Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools (Dec. 1, 2011). The legal parameters laid out in this new guidance provide sufficient room for school districts to voluntarily adopt school assignment plans that promote the well-documented educational benefits of school diversity and integration. The guidance affirms that achieving the benefits of diversity and avoiding the harms of racial isolation are compelling interests that justify the use of race in assigning students to primary and secondary education.

The guidance, however, emphasizes that, if a school district is going to use race, it must first consider whether or not any race-neutral means could achieve its stated goals of diversity or avoiding racial isolation. Race-neutral means allow school districts to be aware of or to consider the racial or ethnic outcomes in developing plans so long as no specific student is assigned to a school based on his or her individual race. But if a school district explores race-neutral means for meeting its goals and finds them inadequate or unworkable, the guidance states that administrators may use race as an “express criterion” in student assignments. Under this option, school district officials must

  1. evaluate each student in the selection process similar to the way college admissions use race as one factor among several others, as permitted under the law.
  2. not make the student’s race the “defining characteristic” for admission or nonselection; and
  3. periodically evaluate whether or not it is still necessary to use race to achieve diversity and avoid racial isolation.

The guidance also offers a plethora of detailed examples of student assignment plans that would pass constitutional muster. The methods described range from strategic school and program siting, realignment of school feeder patterns, and redrawing school attendance zones to the explicit consideration of race in school choice or competitive programs. Although the guidance does not specifically reference any school district’s assignment policy, the examples it provides mirror plans currently in operation in places like Berkeley, California, and Louisville, Kentucky. In short, the guidance offers any school system that is seriously committed to diversifying or reducing the racial isolation realistic and workable options to achieve its goal.

Resegregation and Why Voluntary Desegregation Matters

Nothing short of the future of equal and quality educational opportunity for minority students attending segregated schools hangs in the balance with voluntary desegregation. Voluntary desegregation stands as the last line of defense in a troubling trend of resegregation. Mandatory desegregation has been in steady decline for, at least, the past two decades. The Supreme Court’s opinions in the late 1980s and early 1990s weakened the authority of district courts to order and maintain desegregation remedies and encouraged district courts to instead dissolve desegregation decrees. The result has been to cede back almost all of the integration gains of the past. Though it is not the story often told today, desegregation was very successful for a period of time. From the mid-1960s until the late 1980s, the percentage of students attending desegregated schools expanded each year. Gary Orfield & Chungmei Lee, The Civil Rights Project, Harvard Univ., Brown at 50: King’s Dream or Plessy’s Nightmare? (2004). When desegregation reached its height in 1988, nearly half of the African Americans in the South attended integrated schools. Since then, however, Supreme Court precedent has allowed schools to resegregate to levels that existed in 1970 when desegregation was still in its infancy.

This resegregation has negative consequences for both minorities and nonminorities. School segregation has long-term effects on minorities’ political, housing, employment, and social opportunities and deprives whites of the cultural competence that is important to their later educational and career success. Most notable, however, are the immediate educational harms that minorities suffer because predominantly minority schools, as a general matter, fail to deliver quality educational opportunities to the students who attend them. Yet, the problems of racially isolated minority schools stem not from race per se, but from the fact that predominantly minority schools also tend to be predominantly poor. In fact, more than 75 percent of predominantly minority schools are also high-poverty schools. Anurima Bhargava et al., NAACP Legal Def. and Educ. Fund, Inc. & The Civil Rights Project, Still Looking to the Future: Voluntary K–12 School Integration 14 (2008). In several major academic categories, predominantly poor and minority schools cause educational harm or underperform in comparison to other schools.

First, students in predominantly poor and minority schools tend to receive a generally low-quality curriculum and have unequal access to high-level curricular offerings. Jeannie Oakes, Adam Gamoran & Reba N. Page, Curriculum Differentiation: Opportunities, Outcomes, and Meanings, in Handbook of Research on Curriculum 570–608 (Philip W. Jackson ed., 1992).

Second, even though research shows teacher quality is closely linked to student achievement, students in predominantly poor and minority schools tend to have limited access to highly qualified teachers. Charles Clotfelter, Helen Ladd & Jacob Vigdor, Who Teaches Whom? Race and the Distribution of Novice Teachers, 24 Econ. Educ. Rev. 377–92 (2005). These schools find it extremely difficult to attract and/or retain high-quality teachers and experience exceptionally high teacher turnover, which seriously undermines instructional continuity. Eric A. Hanushek et al., Why Public Schools Lose Teachers, 39 J. Human Res. 326, 337 (2004). Money alone cannot easily fix the problem because the racial and socioeconomic characteristics of schools significantly influence where teachers decide to teach. Wendy Parker, Desegregating Teachers, 86 Wash. U. L. Rev. 1, 35–37 (2008). Absent huge salary increases—the size of which is beyond the capacity of nearly all districts—teachers with options will tend to choose to teach in schools with fewer numbers of poor and minority students.

Third, high poverty levels at predominantly minority schools deprive students of the invaluable influence of middle- and upper-class peers, which decades of data demonstrate is the most important factor in the success or failure of a school. Richard D. Kahlenberg, All Together Now: Creating Middle-Class Schools Through Public School Choice 6, 47–76 (2001). Some studies have found that the achievement gap between high- and low-poverty schools is equivalent to two years of learning. Most important, the concentration of poverty in a school reduces an individual student’s chance of academic success, regardless of his or her individual race or wealth. Both minority and nonminority, and poor and middle-income, students who attend high-poverty schools score substantially lower on standardized tests than similarly situated students who attend low-poverty schools. Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter?: The Impact of Social Composition on Academic Achievement in Southern High Schools, in School Resegregation: Must the South Turn Back? 127, 128 (John Charles Boger & Gary Orfield eds., 2005). In short, poor minority students have a better chance of academic success at schools with low levels of poverty than middle-class white students have at schools with high levels of poverty.

Fourth, the depressed achievement of students in predominantly minority schools has compounding long-term effects. On average, only four out of ten students graduate on time in the nation’s predominantly poor and minority high schools. Bhargava et al. These lower graduation rates also hold true regardless of a student’s individual race or wealth.

While diversity is an important goal that produces significant benefits, these educational harms suggest that school systems dealing with racially isolated minority schools confront a more serious challenge: delivering a basic and adequate education. The various state constitutions, and to some extent No Child Left Behind, mandate that students receive an equal and/or quality education. This simply does not occur on a consistent basis in predominantly minority schools. Thus, the goal of voluntary desegregation is not necessarily to achieve racial integration for its own sake. Rather, racially balancing schools is a precursor to the conditions necessary to deliver equal education opportunities in many districts. So long as schools are racially identifiable, parents, teachers, and resources will gravitate toward some schools and away from others. The result is a vicious cycle that drives down the quality of educational opportunities in poor and minority schools, making them even less attractive. Recognizing this reality, schools’ only real option for delivering equal education is to control student assignment.

Expanding Integrated Schools

A significant number of school systems recognize the importance of racial integration and diversity to equal educational opportunities and are willing to fight for it. Louisville, Kentucky, is the perfect example. The district court released the school district from court-ordered desegregation in 2000, but the school district quickly saw that its school system would not work properly unless it maintained integration. After the Supreme Court struck down its plan in Parents Involved as not narrowly tailored, the school district did not waiver, but rather revamped its plan to continue integration within the Court’s parameters. The federal government and lower federal courts are seemingly rallying around school districts undertaking similar efforts.

Notwithstanding these encouraging trends, they are not enough alone. More work is to be done if Brown v. Board of Education’s promise of equal educational opportunity and desegregated schools is to continue. Not knowing what awaits them on the other side, far too many school systems are eager to get out from under court-ordered desegregation; far too many well-intentioned school districts have sat on the sidelines for the past few years out of confusion over what the Constitution would permit them to do; and far too communities have grown disillusioned with the capacity of public schools to improve education and have become fascinated with charter schools, testing, and teacher accountability. A core community recognizes the incomparable value that integrated schools bring to students, but most have forgotten or discount that value. Ironically, if integrated and diverse schools are to flourish, we must once again explain and justify them to the broader public.

Derek W. Black

Derek W. Black is an associate professor at Howard University School of Law and director of its Education Rights Center. He is the author of numerous articles addressing inequality based on race, poverty, gender, language status, and disability in schools. He also has a forthcoming casebook titled Education Law: Equality, Fairness, and Reform.