|Volume 76||Number 1||Spring 1998|
Cite as 76 Wash. U. L.Q. 161
BRADLEY W. JOONDEPH[*]
The dedication of Anheuser-Busch Hall, the new law school building at Washington University, offers an occasion for reflecting on the school's past and its direction as an institution. Recent developments in the St. Louis area have prompted similar thoughts with respect to the issue of school desegregation. Since the late 1960s, the public school district for the City of St. Louis has been either involved in litigation or actively implementing a plan to desegregate its schools. Like many cities across the country, St. Louis is presently confronting the possibility of living without judicially supervised school desegregation.
As the curtain falls on court-ordered desegregation nationwide, the debate over its wisdom as a strategy for overcoming racial inequalities has emerged anew. This past summer, the NAACP, the organization that spawned the Legal Defense and Education Fund that originally litigated Brown v. Board of Education, debated whether school desegregation should remain one of its official objectives. Many scholars have recently questioned the value of desegregation, and some have insinuated that it has been counterproductive. They contend that desegregation has produced few tangible benefits for black children, increased the rate of "white flight" from urban school districts, and consequently undermined efforts to improve the quality of education in predominantly black schools. More significantly, the sentiment of many African Americans, the supposed beneficiaries of desegregation, has shifted considerably. In many school districts that have operated under mandatory desegregation plans, blacks have voiced a preference to return to neighborhood schools. Understandably, most African American parents are more concerned about improving the quality of public schools than altering their racial composition.
The stronger forms of skepticism concerning desegregation seem unwarranted and unfortunate. In many respects, school desegregation has been a remarkable policy success. Since the late 1960s, when desegregation first began in earnest, the gap in standardized test scores between white and black children has nearly halved. Such correlation does not prove causation, but most of the empirical research on the specific effects of school desegregation (controlling for such variables as socioeconomic status and pre-tested ability) has demonstrated a significant improvement in achievement for African American students with no detriment to white students. The most comprehensive study on the subject concluded that "desegregation has consistently positive effects for black students." The study estimated that desegregation implemented in early grades raises student achievement by one-third of a standard deviation, an advantage that, if retained throughout school, would place a student "approximately one grade level higher than if he or she had been in a segregated school." An overwhelming majority of researchers who have examined the subject have supported these basic conclusions. Most recently, in an amicus brief submitted to the Supreme Court in 1992, fifty-two social scientists attested to the findings that "'[d]esegregation is generally associated with moderate gains in the achievement of black students . . .,'" and that these gains are "'significant.'"
Perhaps more importantly, research has demonstrated that school desegregation substantially improves the "life chances" of African American students, particularly when it places black students from more disadvantaged backgrounds in schools with students of a higher average socioeconomic status. Controlling for relevant variables, black students who attend desegregated schools are less likely to become pregnant as teenagers or to engage in delinquent behavior, and are more likely to graduate from high school, attend college, attend a four-year college, and earn high marks in college. There is also evidence that desegregation leads to higher occupational attainment, and that it increases the likelihood that individuals will live in an integrated neighborhood, have friends of a different race, and work in an integrated environment.
Most research has also demonstrated that "white flight" is largely unrelated to school desegregation. The trend of white migration from the cities to the suburbs began in the 1940s, well before the dawn of desegregation. Studies have revealed that the declining percentage of whites in city school districts is the product of declining white birth rates and white out-migration attributable primarily to increasing crime rates and fears related to an increasing percentage of minority residents. Communities that have abandoned desegregation have observed no significant change in these demographic shifts. And studies of cities that have implemented metropolitan-wide desegregation plans, which eliminate the "exit" option of fleeing to a nearby suburban school district, indicate that desegregation can actually stabilize demographic shifts, resulting in less white flight than would have occurred absent desegregation.
Moreover, the premise underlying many criticisms of desegregation--that the goals of integration and improving the quality of public schools for disadvantaged students are divergent or even mutually exclusive--seems misconceived. School desegregation is valuable not just for the intrinsic value of integration, but also for a host of purely instrumental reasons. Aside from the empirical evidence regarding desegregation's impact on academic achievement and life chances, desegregation, if thoroughly implemented, can act as a barrier to discriminatory action in the political process, at least with respect to schools. By integrating schools with students from different neighborhoods and municipalities in roughly equal proportions, desegregation "provides the necessary alternative design for a properly functioning democratic political process free of self-destructively antipluralistic corruption." Desegregation's reconstitution of schools makes it irrational for any majority--racial, socioeconomic, or otherwise--to support political action that would disadvantage the minority. Conversely, the politically powerful could not appropriate resources or improve the quality of education for their own children without benefiting everyone else. In other words, desegregation can create a Rawlsian veil over the racial and socioeconomic identity of any particular school. In this way, desegregation could be viewed as a structural change that, over the long term, ensures that public schools attended by minority children are equal in quality to those attended by other children.
In other respects, however, the skepticism surrounding desegregation is understandable and, indeed, warranted. Though expectations to the contrary would have been unrealistic, desegregation clearly has not been the panacea that some had anticipated. While the gap in achievement between white and African American students has narrowed overall since 1968, it nevertheless remains significant, and has even widened in the last ten years. American public schools are more de facto segregated today than they were in 1972. Because of the Supreme Court's decision in Milliken v. Bradley (Milliken I), in which the Court rejected a metropolitan-wide desegregation plan involving city and suburban schools in Detroit, desegregation remedies generally can only encompass single school districts, often foreclosing the possibility of meaningful racial or socioeconomic integration.
More broadly, the American public school system continues to systematically deprive black children of educations equal in quality to those it affords whites. African Americans disproportionately attend schools that are underfunded, that fail to attract high quality teachers and administrators, that have higher rates of violence, gang activity, and teen pregnancy, and that enroll high concentrations of students living in poverty. Because America remains largely segregated residentially, and because almost half of all African American children grow up in poverty, a majority of black students attend schools that are not only racially segregated, but also socioeconomically disadvantaged, in many cases dramatically so. In 1991, 57% of schools with more than 90% black or Hispanic enrollments were "high poverty" schools, meaning that more than half of the students were from families in poverty. Likewise, a school that is 90% black or Hispanic is fourteen times as likely to be a high poverty school than a school that is less than 10% black or Hispanic. This concentration of poverty substantially undermines the educational process along a variety of dimensions. As research dating back to the landmark Coleman Report in 1966 has demonstrated, the socioeconomic status of one's peers exerts a significant influence on academic achievement. In simple terms, residential segregation, high rates of black poverty, and the treatment of school district boundaries as sacrosanct borders combine to produce systemic racial disadvantage.
What does the persistence of these disparities in educational opportunities mean to the future of school desegregation? Many commentators have seized on these continuing inequalities as a justification for attacking recent Supreme Court decisions that have hastened the end of court-enforced desegregation. In three recent decisions, the Court has signaled its intent to bring the era of court-enforced desegregation to a close. Though the Court has not explicitly altered any of the basic doctrinal principles in the area, its shift in rhetoric and emphasis, the cases' outcomes in favor of ending or curtailing desegregation remedies, and the consistency of ending court-ordered desegregation with the Court's broader constitutional agenda (particularly with respect to federalism and race-conscious state action) all reveal an important subtext. Many district courts have understood the Court's implicit message, citing the Court's recent opinions in declaring formerly de jure school districts "unitary" and releasing them from judicial supervision. Because of the stark racial inequalities that remain, as well as the empirical research revealing desegregation's potential, many commentators have called the Court's abandonment of desegregation premature, unwarranted, and unjust.
I have previously voiced such criticisms myself, and I still believe those contentions to be largely correct. But in considering many of the criticisms of school desegregation in practice, and in thinking about the prospects for alleviating educational inequalities in the next century, I have cultivated a pragmatic skepticism of my own. While I still believe strongly that integration is a goal worth pursuing, both for intrinsic and instrumental reasons, I question the wisdom of continuing to pursue desegregation through the federal courts into the indefinite future. My skepticism is based on three principal conclusions.
First, the objectives attainable through the continuation of court-ordered desegregation are extraordinarily limited compared to the enormity of the problem of racial disparities in public education. Clearly, the continuation of desegregation remedies may be important and meaningful in particular communities; St. Louis might be a conspicuous example, particularly because the plan requires the State of Missouri to devote substantial funding to inner city schools. But the permissible goals for court-ordered desegregation plans are narrowly circumscribed: because of Milliken I, the plans generally cannot foster significant socioeconomic integration, and, regardless, remedies can only target existing conditions that are causally traceable to past de jure segregation. In short, litigating for the continuation of desegregation remedies administered by federal courts, while absorbing substantial resources, may have limited potential for mitigating educational inequalities.
Second, over the long term, there are reasons to think that initiatives in the political process will produce more meaningful gains for disadvantaged students than will ongoing litigation. Recent scholarship has demonstrated the comparative disadvantages of courts as engines of social change. Gerald Rosenberg's thoughtful study has called into question the utility of school desegregation litigation in particular. According to Rosenberg's accumulation of evidence, Brown v. Board of Education had little or nothing to do with the actual desegregation of American public schools. Desegregation only began to occur fourteen years after Brown was decided, when Congress enacted the Civil Rights Act and the Elementary and Secondary Education Act, and the executive branch began to take its enforcement responsibilities seriously. These legislative and executive actions were in direct response to the political pressure created by the modern civil rights movement, which Rosenberg persuasively contends was largely unrelated to, and unaffected by, Brown.
As other commentators have noted, Rosenberg's analysis fails to capture the indirect and intangible ways in which Brown altered the landscape and discourse surrounding civil rights. Even if actions by the elected branches ultimately desegregated America's schools, Brown, by placing the weight of the Fourteenth Amendment behind the mandate to desegregate, dramatically altered the backdrop against which subsequent political events unfolded. Thus, the contention that Brown had no impact on school desegregation seems implausible. Nonetheless, the work of Rosenberg and others presents historically-grounded reasons to doubt the capacity of courts (at least without the active support of the elected branches) to produce substantial change in this area.
The comparative advantages of the political process should be most apparent to those (such as myself) who are convinced that school desegregation remains a promising strategy for mitigating inequalities in educational opportunity. A desegregation program adopted and enforced by the political branches would be unfettered by the numerous legal constraints placed on desegregation as a judicial remedy. Desegregation plans could embrace any school district, not just those found liable of de jure segregation; they could encompass entire metropolitan areas, cultivating socioeconomic integration; they could place a high priority on desegregating kindergarten and elementary school students, where desegregation is most likely to produce meaningful academic gains; they could accommodate and account for the integration of students from a wide variety of racial and ethnic backgrounds, rather than only those groups for whom there is proof of past discrimination; and they could operate indefinitely, not just until the "vestiges" of de jure segregation have been eliminated.
Moreover, political deliberation and mobilization can produce collateral benefits unavailable through litigation. The modern civil rights movement is a poignant example. Not only did the movement lead to tangible legislative action, including the Civil Rights Act and the Voting Rights Act, but it cultivated "a kind of citizen mobilization that is a public and private good, and [which] inculcate[d] political commitments, broader understanding, feelings of citizenship, and dedication to the community." Political participation can enhance individuals' sense of power and responsibility in shaping collective priorities. It can deepen personal commitments to the achievement of substantive objectives and produce longer-lasting political support for specific policy goals.
Finally, extricating school desegregation from the courts might have the salutary effect of shifting attention from the narrow objective of compensating the victims of past de jure segregation to the more pertinent goal of eliminating systemic racial disadvantage in American public education. Because courts are institutionally ill-suited to address social problems as broad as those raised by school segregation, they tend to compress such issues into narrow conceptual models. In the context of school desegregation, the Supreme Court has created a doctrine largely modeled on the private law of torts: the actionable wrong is the discrete act of de jure segregation by the school district, and the remedy must aim only to return the school system and its students to the positions they would have occupied had the district never discriminated. Perhaps this private law model has been the most practicable way for the judiciary to discharge its obligations with respect to school segregation, but it is a wholly inadequate description of the problem of racial disparities in America's schools. Moving from litigative to political initiatives might help move the polity's focus away from attempting to compensate for specific acts of past de jure segregation and more towards addressing the systemic reasons that the average black child receives an inferior public education.
Of course, advocating the present abandonment of court-ordered desegregation for the sake of greater desegregation through the political process is Pollyannic, and perhaps even irresponsible. It seems wholly unrealistic to think that current political bodies would enact or enforce any thoroughgoing school desegregation project. Recent initiatives in the political arena, particularly the elimination of federally-guaranteed welfare and the widespread abolition of affirmative action, have evinced a clear hostility to redistributive measures, particularly where they disproportionately benefit racial minorities. The 1997 federal budget deal struck between congressional Republicans and the President entirely eliminated the Administration's rather tame proposal to provide $5 billion in funding (of an estimated $112 billion needed) for capital improvements to dilapidated public schools. Given this evident unwillingness to address the clear inequities in public education, the continuation of court-enforced desegregation remedies seems a sensible, second-best solution.
But this falls well short of an unqualified endorsement. Moreover, we should be cognizant of lingering empirical uncertainties. Political initiatives that produce nothing tangible today may sow the seeds for significant change in the future. And efforts to continue court-ordered remedies, by diverting resources from political organization and cultivating no underlying political support for the project, may lessen the likelihood of more thorough reform in the future. As we face a new era in desegregation, we should be mindful that, although courts play an important role in protecting the rights of minorities in a democracy, the major redistributive initiatives of this century--the New Deal and the civil rights revolution--were almost exclusively the product of political action. I suspect the same will be true of any meaningful attempt in the future to equalize opportunity in America's public schools.
[*] Associate Professor of Law, Washington University. B.A., Stanford University, 1990; J.D., Stanford University, 1994. I am indebted to Kathleen Clark, Carla Garrett, Chris Guthrie, D. Bruce La Pierre, Ira Lit, Michael Middleton, Sri Srinivasan, and Srija Srinivasan for their comments on previous drafts of this essay.
[1.] See generally D. Bruce La Pierre, Voluntary Interdistrict School Desegregation in St. Louis: The Special Master's Tale, 1987 WIS. L. REV. 971.
[2.] See Carolyn Bower, For Many, Key Desegregation Issue Is Money Officials Beginning to Plan for End, ST. LOUIS POST-DISPATCH, Sept. 14, 1997, at D7.
[3.] 347 U.S. 483 (1954) (Brown I).
[4.] See Steven A. Holmes, N.A.A.C.P. Leader Is Silent on Desegregation, N.Y. TIMES, July 14, 1997, at A10.
[5.] See, e.g., DAVID ARMOR, FORCED JUSTICE (1994); ROY L. BROOKS, INTEGRATION OR SEPARATION? A STRATEGY FOR RACIAL EQUALITY (1997); Derrick Bell, Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470, 487 (1976); Christine H. Rossell, An Analysis of the Court Decisions in Sheff v. O'Neil and Possible Remedies for Racial Isolation, 29 CONN. L. REV. 1187 (1997); Glenn C. Loury, Integration Has Had Its Day, N.Y. TIMES, Apr. 23, 1997, at A23.
[6.] See, e.g., Freeman R. Bosley Jr., Schools Aren't Enough: Integrate Neighborhoods, ST. LOUIS POST-DISPATCH, Aug. 10, 1997, at 3B (African American former mayor calling for end to school desegregation in St. Louis); Dick Lilly, Seattle to End Busing: Seattle Board Drops Race-Based System, SEA. TIMES, Nov. 21, 1996, at A1 (Seattle public school district, led by newly appointed African American superintendent John Stanford, abandoning 30-year-old voluntary desegregation plan). See generally Peter Applebome, A Wave of Suits Seeks A Reversal of School Busing, N.Y. TIMES, Sept. 26, 1995, at A1; Jerelyn Eddings, Second thoughts About Integration, U.S. NEWS & WORLD REP., July 28, 1997, at 32; Dennis Farney, Fading Dream? Integration Is Faltering in Kansas City Schools as Priorities Change, WALL ST. J., Sept. 26, 1995, at A1; James S. Kunen, The End of Integration, TIME, Apr. 29, 1996, at 38.
[7.] See David J. Armor, Why Is Black Educational Achievement Rising?, 108 PUB. INTEREST, Summer 1992, at 65, 67-68.
[8.] Rita E. Mahard & Robert L. Crain, Research on Minority Achievement in Desegregated Schools, in THE CONSEQUENCES OF SCHOOL DESEGREGATION 103, 111 (Christine H. Rossell & Willis D. Hawley eds., 1983).
[10.] Brief of the NAACP, DeKalb County, Georgia, Branch of the NAACP et al., as Amici Curiae in Support of Respondents app. at 7a, Freeman v. Pitts, 503 U.S. 467 (1992) (No. 89-1290).
[11.] Id. at 8a.
[12.] See James S. Liebman, Desegregating Politics: "All-Out" School Desegregation Explained, 90 COLUM. L. REV. 1463, 1624-26 (1990).
[13.] See id. at 1627.
[14.] See GARY ORFIELD ET AL., DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION 314-18 (1996). But see Rossell, supra note 5, at 1207-17 (contending that mandatory desegregation plans contribute to white flight).
[15.] See ORFIELD ET AL., supra note 14, at 93-96.
[16.] See WILLIS D. HAWLEY ET AL., STRATEGIES FOR EFFECTIVE DESEGREGATION: LESSONS FROM RESEARCH 63 (1983); Liebman, supra note 12, at 1622; Brief of the NAACP, supra note 10, at 7a.
[17.] Liebman, supra note 12, at 1614.
[18.] Cf. JOHN RAWLS, A THEORY OF JUSTICE 136-37, 302 (1971) (postulating that if people were placed in "the original position" behind a "veil of ignorance," such that "no one knows his place in society, his class position or social status," they would favor a social and political system under which "[s]ocial and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged . . ., and (b) attached to offices and positions open to all under conditions of fair equality of opportunity").
[19.] See Peter Applebome, After Years of Gains, Minority Students Start Falling Behind, N.Y. TIMES, Dec. 29, 1996, at A12. This is not to say that standardized test scores are a particularly effective or fair measure of educational achievement. Nonetheless, such tests do provide some indication of academic success.
[20.] See GARY ORFIELD ET AL., THE GROWTH OF SEGREGATION IN AMERICA'S SCHOOLS: CHANGING PATTERNS OF SEPARATION AND POVERTY SINCE 1968 6-8 (1993); Peter Applebome, Schools See Re-Emergence of `Separate but Equal,' N.Y. TIMES, Apr. 8, 1997, at A10.
[21.] 418 U.S. 717 (1974).
[22.] See, e.g., ALEX KOTLOWITZ, THERE ARE NO CHILDREN HERE: THE STORY OF TWO BOYS GROWING UP IN THE OTHER AMERICA (1991); JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS (1990); WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 134-38 (1987).
[23.] See DOUGLAS MASSEY & NANCY DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1992); WILSON, supra note 22, at 57-58; Rachel F. Moran, Milo's Miracle, 29 CONN. L. REV. 1079, 1080, 1107 (1997); Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 MINN. L. REV. 825, 860-62 (1996).
[24.] See ORFIELD ET AL., supra note 20, at 21-22.
[25.] See id.
[26.] See DAVID C. BERLINER & BRUCE J. BIDDLE, THE MANUFACTURED CRISIS: MYTHS, FRAUD, AND THE ATTACK ON AMERICA'S PUBLIC SCHOOLS (1995).
[27.] See JAMES S. COLEMAN ET AL., EQUALITY OF EDUCATIONAL OPPORTUNITY (1996).
[28.] See JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS 109-11 (1990); Christopher S. Jencks, The Coleman Report and the Conventional Wisdom, in ON EQUALITY OF EDUCATIONAL OPPORTUNITY 69, 87-88 (Frederick Mosteller & Daniel P. Moynihan eds., 1972); Susan E. Mayer & Christopher Jencks, Growing Up in Poor Neighborhoods: How Much Does It Matter, 243 SCIENCE 1441, 1442 (1989).
[29.] Those decisions are Missouri v. Jenkins, 115 S. Ct. 2038 (1995), Freeman v. Pitts, 503 U.S. 467 (1992), and Board of Education v. Dowell, 498 U.S. 237 (1991).
[30.] See Bradley W. Joondeph, Missouri v. Jenkins and the De Facto Abandonment of Court-Enforced Desegregation, 71 WASH. L. REV. 597 (1996).
[31.] See, e.g., United States v. Unified Sch. Dist. No. 500, No. CIV. A. KC-3738-EEO, 1997 WL 547239, at *21-*22 (D. Kan. Aug. 6, 1997); Mills v. Freeman, 942 F. Supp. 1449, 1454-64 (N.D. Ga. 1996); Reed v. Rhodes, 934 F. Supp. 1533 (N.D. Ohio 1996); Arthur v. Nyquist, 904 F. Supp. 112, 113 (W.D.N.Y. 1995); Keyes v. Congress of Hispanic Educators, 902 F. Supp. 1274, 1281-82 (D. Colo. 1995); Coalition to Save Our Children v. State Bd. of Educ., 901 F. Supp. 784, 794-95 (D. Del. 1995); Stell v. Board of Pub. Educ., 860 F. Supp. 1563, 1577 (S.D. Ga. 1994); Tasby v. Woolery, 869 F. Supp. 454, 459 (N.D. Tex. 1994).
[32.] See, e.g., ORFIELD ET AL., supra note 14.
[33.] See Joondeph, supra note 30; Bradley W. Joondeph, Note, Killing Brown Softly: The Subtle Undermining of Effective Desegregation in Freeman v. Pitts, 46 STAN. L. REV. 147 (1994).
[34.] St. Louis represents one of the few instances of interdistrict desegregation. Under a voluntary desegregation plan adopted as part of a settlement agreement in 1983, roughly 13,000 black students from the City of St. Louis attend schools in predominantly white suburban school districts. See Bower, supra note 2, at D7. Because it is metropolitan-wide, the St. Louis project has achieved a degree of socioeconomic integration unattainable for desegregation plans in most northern urban areas. Evaluation of the St. Louis program shows that desegregation has generally produced positive results for those students who have attended racially integrated schools. See ORFIELD ET AL., supra note 14, at 89-90; Editorial, Common Ground in Mr. Nixon's Plans, ST. LOUIS POST-DISPATCH, Sept. 16, 1997, at B6.
[35.] See GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 42-169 (1991).
[36.] See id.
[37.] See id. at 42-54.
[38.] See id. at 107-69.
[39.] See, e.g., David L. Kirp, Book Review, 254 NATION 757 (1992); Michael A. Middleton, The Efficacy of Litigation in Achieving Racial Justice, LAW & COURTS, Summer 1996, at 7, 9; Peter H. Schuck, Public Law Litigation and Social Reform, 102 YALE L.J. 1763, 1771-72 (1993) (book review).
[40.] In particular, Michael Klarman. See Michael Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. REV. 7 (1994).
[41.] Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 767 (1991). Significantly, Dr. Martin Luther King Jr. often cautioned against reliance on courts for progress on civil rights and the liberation of African Americans. See Cass R. Sunstein, What the Civil Rights Movement Was and Wasn't (with Notes on Martin Luther King, Jr. and Malcolm X), 1995 U. ILL. L. REV. 191.
[42.] See Sunstein, Three Civil Rights Fallacies, supra note 41, at 762.
[43.] See id.
[44.] Cf. Cass R. Sunstein, The Anti-Caste Principle, 92 MICH. L. REV. 2410, 2450-51 (1994) (describing the problem of race in America as the "second-class status" of African Americans, who face systemic disadvantage along several dimensions of social welfare).
[45.] See Peter Applebome, Budget Deal Killed Money for Repairing the Schools, N.Y. TIMES, May 9, 1997, at A14.