More than forty years have passed since the Supreme Court's Brown v. Board of
Education decision, declaring unconstitutional state-imposed segregation of public
schools. One would have thought that by now American society would have arrived at a
consensus with respect to the substance and scope of Brown. The truth is otherwise.
Even in the education sector of our national life that Brown specifically
addressed, deep differences remain over what changes that decision was designed
to effect.
Of course, opposition to Brown by whites committed to the maintenance of racial
segregation in public education has been a daily reality from the moment the decision was
announced. Over the years, that opposition has taken a variety of forms both simpleminded
and sophisticated. However, it was generally thought that one group, African Americans,
was uniformly supportive of Brown and committed to its full implementation in
education. After all, Brown was the culmination of a long campaign by the National
Association for the Advancement of Colored People (NAACP) to overturn the "separate
but equal" doctrine. It also ushered in, without doubt, more than a generation of
court decisions and legislation that eradicated all vestiges of formal segregation in
America.
Several developments in recent years suggest, however, that growing numbers of blacks
may be turning away from the integrative ideal. Three examples of this shift are worth
noting: first, black parents now express support for school board efforts to end
desegregation plans that involve busing, favoring instead a return to neighborhood
schools, even though this would result in increases in the number of virtually all-black
schools in the inner city; second, at the urging of black parents, school boards in a
number of major cities have attempted to create all-black male academies; third, black
administrators, faculty, students, and alumni of historically black colleges in the South
have joined state officials in opposition to court-ordered higher-education desegregation
plans. Some critics have dismissed these developments as perverse efforts to return to a
"separate but equal" regime. In fact, these developments raise serious and
complex questions about the future of race relations in America that deserve careful
analysis, not simplistic characterization. This essay is an attempt to contribute
constructively to that process.
Blacks and Neighborhood Schools
The school desegregation process has not been unproblematic, to say the least. More
than forty years after Brown, there is still active litigation alleging
constitutional violations. There is no gainsaying, however, that as a result of Brown
and its progeny, thousands of black, white, and Hispanic children have been able to
receive integrated educations and develop both educational and social skills that will
stand them in good stead in later life. At the very least, the mandatory presence of white
children has saved some black and other minority children from the physically inferior
facilities -- and inferior resources -- to which they had been assigned under segregation.
Acknowledging the important gains of desegregation, however, should not blind us to the
continuing legacy of segregation within desegregated systems. In many schools, racially
segregated classes make it unlikely that children of different races will have meaningful
interaction during the school day. Moreover, the black community has paid, in some
instances, a high price for desegregation. For example, schools that served not only as
educational institutions but also as community centers in predominantly black
neighborhoods have been closed; black teachers and administrators have been dismissed and
demoted disproportionately; and black students have encountered increased disciplinary
action in recently desegregated schools. This record establishes, contrary to common
assumptions, that desegregation has not been an unmitigated benefit to previously
segregated black students and educators.
Meanwhile, demographic changes in the United States since 1954 have produced a pattern
of residential segregation. This makes further progress in school desegregation in certain
areas difficult to envision. Urban centers across the nation are predominantly black and
Hispanic; the suburbs and rural areas are predominantly white. Even in those cities where
the white population exceeds the minority, the public school populations are predominantly
black and Hispanic. This latter phenomenon can be explained by the presence of childless
white couples, older white couples, and white families with children enrolled in private
and parochial, rather than public, schools.
Although some litigation efforts to achieve metropolitan-wide desegregation have been
successful, the Supreme Court's 1974 decision in a Detroit school desegregation case
effectively limited the availability of that remedy in most urban areas. A few large
cities have adopted voluntary desegregation plans involving urban and suburban
communities, but their impact on inner-city segregation has been modest, largely because
those participating in such programs have been disproportionately black. The result has
been, therefore, a one-way rather than a two-way process, with urban blacks heading out to
suburban schools but relatively few suburban whites coming into the city.
Some members of the black community have begun to question whether the result achieved
is worth the time and expense that desegregation entails. There is also a sense among some
blacks that in areas where desegregation plans no longer produce meaningful numbers of
whites and blacks studying together, the plans are maintained because of the mistaken
belief that blacks cannot learn unless whites are sitting next to them in class. The
blacks who challenge the continuation of such plans argue that a return to neighborhood
school assignment makes more sense because parental and community involvement in the
schools would be more likely to increase. Moreover, governmental resources expended on
busing could be redirected to improving the quality of materials and instruction available
at those schools.
Blacks and whites who oppose efforts to roll back desegregation plans do so for a
variety of reasons. First, they fear that such proposals are yet another attempt by school
boards guilty of past intentional segregation to escape any further role in avoiding
resegregation. Second, they suspect blacks who support such rollbacks of acting more in
their own political and economic interests than in the interests of black children. What
rollback proponents seek, they say, are more and better jobs for black administrators and
teachers in exchange for reduced pressure to increase or maintain desegregation levels.
Third, rollback opponents fear that a return to all-black schools will result in
"benign neglect" of those schools in terms of resources allocated for
facilities, material, and personnel.
This debate, although perhaps the subject of greater media focus in recent years, is
not a new one. Blacks, having seen the bad, along with the good, of desegregation, have
for some time questioned whether the process should be extended to the limits that Supreme
Court precedents allow. This attitude has been particularly prevalent with respect to
desegregation plans that require extensive busing. These voices of restraint often had no
effective forum, however. White school boards that expressed such views were correctly
regarded as untrustworthy spokespersons on this issue. The major civil rights
organizations representing the plaintiffs in desegregation cases, on the other hand,
strongly rejected -- and continue to reject -- any thought of stopping short of what the
Constitution would permit.
The debate has taken on a new dimension, however, because black mayors, city council
members, and school superintendents have begun to express concerns about the wisdom of
what they see as "desegregation at any cost." Courts are justifiably perplexed
over how to evaluate the views of this group because their authority, as elected and
appointed blacks, to speak for the black community certainly is equal to, if not greater
than, that of plaintiffs and their lawyers in school desegregation cases. Although some
might dismiss their views as perversely malevolent toward black students, the positions of
black elected and appointed officials deserve to be seen as expressions of concern about
the most effective approach to educating black children under daunting circumstances.
For these and other reasons, blacks increasingly support efforts by school districts
under court desegregation orders to return to neighborhood school arrangements, even
though such modifications inevitably will return certain facilities in the black community
to largely one-race status. Of course, we must not lose sight of the fact that
constitutional rights are individual. Whether a school district has satisfied its
responsibility under Brown and its progeny to dismantle a dual system is not
subject to resolution by referendum. The difficult legal question is how we determine
whether the dual system is still in place.
Many school boards insist that by removing the vestiges of their own segregative
practices, they have satisfied constitutional requirements. Continued segregation, they
argue, is not their fault but rather the consequence of residential segregation caused by
private choice and market forces. Critics reply that schools have a duty to go on making
adjustments until patterns of segregation have been eradicated. They take the position
that the demographics cited to explain continued segregation are not adventitious but
rather the result of mutually reinforcing segregative policies of school boards and other
governmental agencies such as public housing authorities.
Under current Supreme Court doctrines, those who wish to modify desegregation plans are
likely to prevail, because the Court consistently has refused to consider the extent to
which segregative actions by governmental agencies other than school boards might justify
maintenance of desegregation plans when modification would result in resegregation.
Consequently, school desegregation plaintiffs are left with a wrong in search of a remedy.
As they witness schools that were all black before desegregation return to that status
once the board's modifications go into effect, it must seem to them that years of effort
have been in vain.
Schools for Black Males
Media attention and public debate over the past few years have also focused on
proposals to establish public schools or programs exclusively for black male students. In
Milwaukee, for example, the school board planned to designate two schools as all-black or
virtually all-black facilities in which special attention would be given to the
educational and developmental needs of black males. These "immersion schools"
would offer features unavailable in other Milwaukee facilities: school days one hour
longer and less rigidly structured than normal, a multicultural curriculum, and mandatory
Saturday classes held in cooperation with the local branch of the Urban League. Weekend
sessions would focus on nonacademic subjects, such as "what it means to be a
responsible male," "how to save and invest money," and "the
practicalities of cooking and cleaning." The students would also be required to wear
uniforms.
As a result of actual or threatened litigation, Milwaukee's proposal and similar ones
in other urban school districts were modified to include female and white students who
wished to participate. The legal and political debate continues, however. At the core of
the controversy is the question of whether a school that admits only blacks is any more
constitutional than the ones that Brown outlawed because they admitted only whites.
At one level, they clearly are not comparable. The system of state-imposed racial
segregation in public education that Brown declared unconstitutional was designed
to ensure that blacks remained a second-class, subjugated race in American society.
Schools established for black males, in contrast, are not designed to subjugate whites or
deny them first-class citizenship. Rather, they address what most people would acknowledge
is the critical plight of young black males in urban America.
At another level, however, our history counsels us to be wary of any racial
classifications. For that reason, the Supreme Court has mandated that any use of racial
criteria by government must be for the purpose of achieving a compelling interest and must
be necessary to achieve that purpose. Dual school systems under segregation failed that
test because maintaining segregation of the races did not constitute a compelling
governmental interest. All-black academies, in contrast, concededly are designed to meet a
compelling interest -- saving black males from educational and social disaster. However,
the case has not been made persuasively that this is an interest that necessarily
requires the exclusion of whites.
The fact that a school district might be able to achieve its goals more efficiently
employing a racially exclusive approach is no justification for such a system. Expedience
cannot legitimize racial segregation. Even taking the proponents of all-black academies at
their word, there is little evidence to support the view that mentoring, counseling,
extended school days, small classes, and a curriculum that gives proper recognition to the
contributions of blacks to American society will improve black male educational and social
functioning only in a racially segregated setting. Such an enriched educational
environment is likely to produce positive results irrespective of the racial
setting.
Proponents may contend that only experimentation will determine the effectiveness of
such programs. Racial classifications, however, are not proper subjects for
experimentation. Of course, in many urban settings, the likelihood that whites will be
enrolled in inner-city schools and thereby be displaced to accommodate the all-black
academies is slim. Similarly, whites likely will not apply to attend such schools. Under
these circumstances, as a practical matter, school districts can set up programs for
all-black student bodies without imposing any bar to whites.
Proposals to create all-black academies have attracted adherents largely in inner-city
districts (like those in Milwaukee) whose schools cannot feasibly be desegregated. Black
parents and sympathetic school officials in these communities have joined forces to
develop a structure that they hope will save black males. Such approaches clearly reflect
disenchantment with the Brown integrative ideal and may be educationally misguided.
However, to the extent that whites and females may participate, the programs would not
appear to violate constitutional limits.
Historically Black Colleges and Universities
Lawyers for the NAACP prepared for their ultimate assault on the "separate but
equal" doctrine in Brown by challenging successfully the exclusion of blacks
from all-white graduate and professional schools. Indeed, it was in one of those earlier
cases that the Supreme Court acknowledged the "intangible" inequality caused by
segregation that would figure so prominently in its 1954 decision. The Court made clear
shortly after Brown II, the desegregation implementation decision in 1955, that
southern higher-education officials could not delay opening their institutions by invoking
the "all deliberate speed" doctrine. Consequently, efforts by blacks to enroll
in previously all-white colleges and universities during the late 1950s and early 1960s
found support in the courts, as well as in the executive branch. In a few instances, the
government even called out troops to ensure the admission of blacks.
Meanwhile, almost no attention was being given to the fact that southern and border
states were continuing to operate dual systems of higher education. This arrangement was
dictated, in large part, by the federal government's promotion in 1862, under the First
Morrill Act, of state land-grant colleges for whites and then in 1890, under the Second
Morrill Act, parallel institutions for blacks. Thereafter states systematically
discriminated against black institutions in the allocation of funds for a period that
extended well beyond 1954.
The historically black institutions, as a group, nevertheless achieved remarkable
success educating students from segregated and inferior secondary schools. They developed
programs that provided their students with instruction and nurturing sufficient to prepare
them to function effectively in society after graduation. In many cases, their graduates
have pursued graduate and professional training at prestigious universities in the North
and West.
Early attempts to challenge dual systems of higher education produced court orders that
seemed to embrace a "freedom of choice" approach. State officials successfully
argued that college students were not assigned to institutions but rather were free to
select a college or university based on considerations of curriculum, location, cost, and
admissions requirements. Consequently, as long as states did not preclude students from
attending an institution because of their race, the courts determined that dual systems
did not offend the Constitution.
In the early 1970s, however, black plaintiffs initiated litigation in Adams v.
Richardson, charging federal officials with illegally providing funds to states that
maintained dual systems of higher education. As a result of this suit, the court ordered
the Department of Health, Education and Welfare (HEW) -- and later the Department of
Education -- to launch an enforcement campaign to dismantle those systems. Central to that
campaign was the premise that the states in question had a constitutional duty to remedy
the conditions that created and perpetuated separate black and white institutions at the
postsecondary level.
Black higher-education groups were at odds with federal agencies and the NAACP Legal
Defense and Educational Fund, which brought the Adams suit, regarding the wisdom of
pressing desegregation of public colleges and universities. Black college presidents,
faculty, and alumni were undoubtedly mindful of the burdens the black community had been
forced to bear during desegregation of public primary and secondary systems. They feared
that desegregation of higher education would result, at best, in whites displacing black
teachers and administrators, as well as black students. At worst, given the relative
inferiority of their institutions, desegregation might result in the closing of schools or
the absorption of traditionally black institutions into historically white schools. In
either event, institutions important to the black community would lose their identity, and
opportunities in higher education for black administrators, faculty, and students would be
significantly diminished.
Despite similar concerns, however, proponents of desegregation in higher education
believed that both litigation and administrative enforcement could increase resources
available to historically black institutions. Reducing program duplication and forcing
states to locate especially attractive academic programs at traditionally black schools
would also enhance the schools' long-term viability.
It is fair to say that this desegregation effort has not been very successful.
Significant segregation between historically black and white institutions is still
apparent. Since 1973, state officials have effectively utilized the administrative process
to delay meaningful change. Ultimately, the Court of Appeals for the District of Columbia
Circuit dismissed the Adams litigation on technical grounds, thus allowing the
federal government to decide on the nature, scope, and timing of enforcement largely free
of court oversight.
In 1992, however, a case involving the Justice Department and the state of Mississippi
presented the Supreme Court with an opportunity to define a state's constitutional duty to
dismantle formerly dual systems of higher education. Some lower federal courts had taken
the position that higher-education authorities had an affirmative responsibility, similar
to that imposed on school boards in the case of primary and secondary school
desegregation, to eradicate the vestiges of their dual systems. These courts believed that
this responsibility must be discharged by addressing a variety of practices that affect
students' decisions about which institutions they attend, such as admissions standards,
program duplication, institutional resources, and governance. Other courts, as we have
seen, rejected the notion that primary and secondary school desegregation doctrines had
any applicability to higher education, principally because college and university
attendance is not mandated by the state but depends on individual student choice.
Consequently, these courts -- including the trial court that heard the Mississippi case
and the Fifth Circuit Court of Appeals -- concluded that a state's constitutional
responsibility ends once the state has removed all racial bars to students' attending the
college or university of their choice.
In United States v. Fordice, the Supreme Court essentially embraced the former
"affirmative duty" doctrine and reversed the lower courts' determination that
Mississippi had met its constitutional responsibility. The Court found that in at least
four areas -- admissions standards, program duplication, institutional mission
assignments, and continued operation of all eight public universities -- the state had
failed to show that the "policies and practices traceable to its prior system that
continue to have segregative effects" had "sound educational justification"
and could not "be practicably eliminated." The case was then returned to the
lower courts for evaluation of the Mississippi system against the Court's newly
articulated standard.
The Court's decision left in limbo, however, the future of Mississippi's three
historically black institutions. Although the Court acknowledged that "closure of one
or more institutions would decrease the discriminatory effects of the present
system," it declined to find such action constitutionally required. However, it
flatly rejected the notion that Mississippi had a constitutional duty to upgrade the
historically black institutions, as such. Rather, it left to the lower courts the question
of whether "an increase in funding is necessary to achieve a full
dismantlement." Given this ambiguity, the possibility exists that Mississippi will be
able to achieve a unitary higher-education system by closing those institutions.
Disproportionate Burdens
It is this fear that black institutions will be the inevitable casualties of higher-
education desegregation that has complicated the dismantling of dual systems. Take, for
example, the ostensibly odd alignment of parties in a case from Louisiana. After
concluding that Louisiana's desegregation plans were inadequate, the federal court
commissioned its own strategy. That plan envisioned, among other things, merging the
traditionally black Southern University Law Center into the law school of Louisiana State
University (LSU), the state's traditionally white flagship institution. The two law
schools are located in Baton Rouge, only a few miles apart.
That the state opposed the merger plan was not surprising. However, it was joined by
the Southern University Board of Supervisors, which viewed the court's order as a step
backward, rather than forward, for black education in Louisiana. The board claimed that
blacks, the victims of the state's history of segregation and discrimination in higher
education, were being required to bear a disproportionate burden in rectifying that
situation. Specifically, the board contended that the merger of Southern University's law
school with LSU's would undoubtedly displace black faculty and staff and curtail
opportunities for blacks seeking legal education. The court's plan did not envision LSU's
absorbing Southern University's faculty and staff, nor did it require LSU to expand to
insure against a net loss of law school seats for black students after the merger.
In defense of its plan, the court took the position that the merger was required by the
Constitution and was in the long-term interests of the citizens of Louisiana, black and
white. But for the state's creation and maintenance of segregated higher education, the
court pointed out, there would not still be two public law schools in the same city, one
white and the other black. The court concluded that desegregation could occur only if one
of the institutions closed. Moreover, the court observed that in a fiscally strapped
state, maintaining two law schools in Baton Rouge made no economic sense.
Southern University's law school had been denied adequate state support because of its
status as a black institution. The condition of its physical plant and the quality of its
educational program were, as a result, inferior to those of LSU. Consequently, the court
concluded that Southern University's law school should be the one to close. In response to
the Southern University Board of Supervisors' concerns about the desegregation process,
the court suggested that the board was interested in protecting the jobs of Southern
University faculty and administrators rather than in improving educational opportunities
for blacks.
This controversy delineates starkly the dilemma confronting proponents of
higher-education desegregation. The court clearly was correct that the maintenance of
dual, segregated law schools in one city makes no legal or fiscal sense and that merging
the institutions would require blacks and whites to study law together rather than apart.
But the black opponents of the merger also have compelling arguments. Absent the state's
history of discriminatory treatment of Southern University Law Center, the school's
facilities and program probably would not be so inferior to those of LSU. Had there been
"tangible" equality over the years between the two institutions, white students
might have opted to attend Southern University rather than LSU based on
"intangible" considerations, such as the presence of particular faculty members
or curricular emphases. Moreover, there is no reason why Southern University's board
should apologize for seeking to protect the jobs of faculty and administrators. They, too,
are victims of the state's segregative practices.
Finally, Southern University Law Center and LSU Law School have different admissions
criteria. As a consequence, Southern University has been able to admit some black students
who, based on objective indicators such as grade-point average and Law School Admission
Test scores, would not be competitive candidates at LSU. Southern University,
nevertheless, has been able to train and graduate generations of black lawyers who provide
competent legal services to poor and minority communities in the state. Unless LSU ensured
that black students whom Southern University would have admitted would find seats at LSU,
the merger would represent a net loss of educational opportunities for black students in
Louisiana.
The Louisiana case eventually was dismissed in light of the Fifth Circuit's ruling in
the Mississippi case. Solving the dilemma in Louisiana and in other states where
higher-education desegregation is under way will not be easy now that the Supreme Court
has vacated that decision. Any solution must operate within the twin constraints of
constitutional requirements and economic reality. At the same time, it must address
responsibly the displacement effects of the desegregation process and the ironic price
that the black community must pay for desegregation.
Conclusion
The Brown decision and the integrative ideal that it embraced have opened
opportunities for black advancement that were previously unthinkable. Brown also
transformed our entire society in other ways too numerous to mention. As the developments
discussed above suggest, however, the increasing racial polarization and residential
segregation in America have put the integrative ideal to the test. Concerns about the
burdens blacks have had to carry in the desegregation process, and the seemingly
intractable problems presented for largely black school systems in educational extremis,
are causing growing numbers of blacks to rethink Brown's integrative ideal. These
are admittedly difficult questions. Nevertheless, they deserve to be asked -- indeed, they
cannot be avoided. They must also be answered, although the answers may be uncomfortable
and disappointing, at least in the short run, for those of us who hoped that we would see
a different America forty years after Brown.
-- Drew S. Days, III
Drew S. Days, III, is Alfred M. Rankin Professor at Yale Law School. This essay
has been adapted from his chapter in Redefining Equality, edited by Neal Devins and
Davison M. Douglas, copyright 1998 by Oxford University Press. Published by arrangement
with Oxford University Press, New York.
Redefining Equality
Neal Devins and Davison M. Douglas, editors
The idea of equality is central to American civic life and one of the foundations of
our national identity, yet there is little consensus on the meaning of the term. Charges
of unequal treatment continue to be voiced nationwide, in both public discourse and in the
courts, and competing views of equality have erupted into a cultural conflict that looms
large in contemporary American politics.
In this insightful collection of essays, scholars in law, history, and social science
present varying perspectives on the concept of equality. Addressing specific cases as well
as abstract legal arguments, the contributors look closely at controversies over school
desegregation and affirmative action, analyze the role of courts in the modern struggle
for equality, and examine the politics of equality over the past two decades. A balanced
array of assessments regarding our nation's historical and contemporary thoughts on
equality and civil rights, Redefining Equality will prove most informative to
students of law, political science, and recent American history.
"A very strong collection of essays. . . . [These are] good summaries of positions
that the book's readers ought to know about. They provide a fine overview of contemporary
civil rights issues."
--Mark V. Tushnet, Georgetown University
"Redefining Equality is a collection of well-written essays by prominent
scholars on hot problems concerning judicial review and equality. [The book] neatly
pinpoints many of the complex issues of legal equality that have arisen in the 1990s and
presents readers with a variety of perspectives on those questions."
--Mark Graber, University of Maryland
256 pages
$45.00 (cloth)
$18.95 (paper)
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