The Segregation and Resegregationpovertylaw.org/.../article/chr_2005_january_february_chemerinsky.pdf · Review Association; Erwin Chemerinsky.] Schools in the South and throughout

633Clearinghouse REVIEW Journal of Poverty Law and Policy ■ January–February 2005

1GARY ORFIELD, THE CIVIL RIGHTS PROJECT, HARVARD UNIVERSITY, SCHOOLS MORE SEPARATE: CONSEQUENCES OF A DECADE OF RESEGREGATION

(2001), available at www.civil rightsproject.harvard.edu/research/deseg/Schools_More_Separate.pdf (on file with theNorth Carolina Law Review).

2Id. at 2.

3Brown v. Board of Education, 347 U.S. 483 (1954); Orfield, supra note 1, at 29.

4Id.

The Segregation and Resegregation of American Public Education: The Courts’ Role

By Erwin Chemerinsky

[Editor’s note: This article is reprinted with the permission of NORTH CAROLINA LAW REVIEW (seevol. 81, pp. 1597–1622, 2003) and with the author’s permission. © 2003 North Carolina LawReview Association; Erwin Chemerinsky.]

Schools in the South and throughout the country are resegregating. Why is this occurring,and why were desegregation efforts limited in their success? This essay argues that the U.S.Supreme Court is largely to blame. In a series of decisions in the 1970s, the Court ensuredseparate and unequal schools by preventing interdistrict remedies, refusing to find thatinequities in school funding are unconstitutional, and making it difficult to prove a consti-tutional violation in northern de facto segregated school systems. In a series of decisions inthe 1990s, the Court ordered an end to effective desegregation orders. Lower federal courtshave followed these rulings and, in many areas, have ended remedies despite the likelihoodthat resegregation will follow. As Brown v. Board of Education nears its fiftieth anniver-sary, American public schools are increasingly separate and unequal. The institution thatprovided the impetus for desegregation and offered so much hope—the courts—is responsiblefor this failure.

Introduction

A half-century of efforts to end school desegregation has largely failed. Gary Orfield’spowerful recent study, Schools More Separate: Consequences of a Decade of Resegregation,carefully documents that, during the 1990s, America’s public schools have becomesubstantially more segregated.1 In the South, for example, he shows that, “[f]rom1988 to 1998, most of the progress of the previous two decades in increasing integra-tion in the region was lost. The South is still more integrated than it was before thecivil rights revolution, but it is moving backward at an accelerating rate.”2

The statistics presented in his study are stark. For example, the percentage of AfricanAmerican students attending majority white schools has steadily decreased since1986. In 1954, at the time of Brown v. Board of Education, only 0.001 percent ofAfrican-American students in the South attended majority white schools.3 In 1964,a decade after Brown, this number increased to just 2.3 percent.4 From 1964 to 1988,there was significant progress: 13.9 percent in 1967; 23.4 percent in 1968; 37.6 per-

Erwin ChemerinskyAlston & Bird Professor of Law

Duke Law SchoolBox 90360Durham, NC [email protected]

634 Clearinghouse REVIEW Journal of Poverty Law and Policy ■ January–February 2005

The Segregation and Resegregation of American Public Education

cent in 1976; 42.9 percent in 1986; and43.5 percent in 1988.5 But since 1988,the percentage of African American stu-dents attending majority white schoolshas declined. By 1991, the percentage ofAfrican American students attendingmajority white schools in the South haddecreased to 39.2 percent, and over thecourse of the 1990s this numberdropped: 36.6 percent in 1994; 34.7 per-cent in 1996; and 32.7 percent in 1998.6

Professor Orfield’s study shows thatnationally the percentage of AfricanAmerican students attending majorityAfrican American schools and schoolswhere over 90 percent of the students areAfrican American also has increased inthe last fifteen years. In 1986, 62.9 per-cent of African American studentsattended schools that comprised 50 per-cent to 100 percent of minority students;by 1998–1999, this percentage hadincreased to 70.2 percent.7 The samepattern exists in North Carolina. Between1993 and 2000, the number of AfricanAmerican students attending schoolswith minority enrollments of 80 percentor more doubled.8 Furthermore, in theCharlotte-Mecklenburg School District,fewer than 60 percent of the schools meetthe standard definition of “diverse”; thisnumber is down from 85 percent in the1980s.9

Quite significantly, Professor Orfield’sstudy shows that the same pattern of reseg-

regation is true for Latino students.10 Thehistoric focus for desegregation efforts hasbeen to integrate African American andwhite students. The burgeoning Latinopopulation requires that desegregationfocus on this racial minority, too.11 Thepercentage of Latino students attendingschools where a majority of students are ofminority races, or almost exclusively ofminority races, increased steadily over the1990s.12 Professor Orfield notes that“[Latinos] have been more segregated thanblacks now for a number of years, not onlyby race and ethnicity but also by poverty.”13

The simple and tragic reality is thatAmerican schools are separate andunequal. As Professor Orfield docu-ments, to a very large degree, educationin the United States is racially segregat-ed.14 By any measure, predominatelyminority schools are not equal in theirresources or their quality. Wealthy sub-urban school districts are almost exclu-sively white; poor inner-city schools areoften exclusively composed of African-American and Hispanic students. Theyear 2004 will be the fiftieth anniversaryof Brown v. Board of Education, andAmerican schools will mark that occasionwith increasing racial segregation andgross inequality.

There are many causes for the failure ofschool desegregation. None of the recentpresidents—neither Reagan, nor either

5Id.

6Id.

7Id. at 31.

8Susan Ebbs, Separate and Unequal, Again, NEWS AND OBSERVER (Raleigh, N.C.), Feb. 18, 2001, at 1A.

9Id.

10See Orfield, supra note 1, at 31.

11The focus of desegregation in the South has traditionally been on whites and African Americans because they werethe concern of the litigation of the civil rights movement. At the time, the states did not have a significant Latino pop-ulation. Now, however, the growth in the Latino population requires that this group be considered as well in evaluatingdesegregation efforts. See Elizabeth M. Grieco & Rachel C. Cassidy, U.S. Census Bureau, Overview of Race and HispanicOrigin, CENSUS 2000 BRIEF 3 tbl.1 (2001), www.census.gov/prod/2001pubs/c2kbr01-1.pdf (on file with the North CarolinaLaw Review) (illustrating that Latinos are the largest minority group in the United States); see also Orfield, supra note 1,at 17 tbl.1 (indicating that from 1968 to 1998 the Latino population enrolled in public schools grew from 2 million to6.9 million—a 245 percent growth in thirty years).


13Id. at 2.

14See id. at 48. Professor Orfield explains that segregation by race relates to segregation by poverty and to many formsof educational inequality for African American and Latino students. Id.



Bush, nor even Clinton—has done any-thing to advance desegregation. None hasused the powerful resources of the feder-al government, including the depend-ence of every school district on federalfunds, to further desegregation. “Benignneglect” would be a charitable way ofdescribing the attitude of recent presi-dents to the problem of segregated andunequal education; the issue has beenneglected, but there has been nothingbenign about this neglect. A serioussocial problem that affects millions ofchildren has simply been ignored.

Nor has the federal government, or forthat matter have state or local govern-ments, acted to solve the problem ofhousing segregation. In a country deeplycommitted to the ideal of the neighbor-hood school, residential segregationoften produces school segregation. Butdecades have passed since the enactmentof the last law to deal with housing dis-crimination, and efforts to enhance resi-dential integration seem to have van-ished.15

There is not a simple explanation for thealarming trend toward resegregation. Inthis essay I argue that the courts mustshare the blame; courts could have donemuch more to bring about desegregation,and instead the judiciary has createdsubstantial obstacles to remedying thelegacy of racial segregation in schools.16

I do not want to minimize the failure ofpolitical will, but every branch and levelof government are responsible for thefailure to desegregate American publiceducation. I contend that Supreme Court

decisions over the last thirty years havesubstantially contributed to the resegre-gation that Professor Orfield and othersdocument.17

Desegregation will not occur without judi-cial action; desegregation lacks sufficientnational and local political support forelected officials to remedy the problem.Specifically, African Americans and Latinoslack adequate political power to achievedesegregation through the political process.This relative political powerlessness wastrue when Brown was decided and remainstrue today. The courts are indispensable toeffective desegregation, and over the lastthirty years the courts, especially theSupreme Court, have failed. As discussedbelow, court orders have been successful inmany areas of the country in bringing aboutdesegregation.18 Courts could have donemore, but even merely continuing ratherthan ending existing desegregation orders(as the Supreme Court has mandated)would have limited resegregation of south-ern schools.19

This essay focuses on two major sets ofSupreme Court decisions that have con-tributed to resegregation. Part I focuseson the Supreme Court’s decisions of the1970s, especially those decisions reject-ing interdistrict solutions to segregationand inequality of funding.20 Part IIexamines the Supreme Court’s decisionsof the 1990s; those decisions ordered anend to desegregation efforts.21 Thesecases, and lower-court decisions follow-ing them, have substantially contributedto resegregation of public schools. PartIII looks at why this judicial failure has

15The last national housing law addressing discrimination, the Fair Housing Act, was enacted in 1968. Fair Housing Actof 1968, Pub. L. No. 90-284, Title VIII, 82 Stat. 81 (codified as amended at 42 U.S.C. §§ 3601–3619, 3631 (2000)).

16See infra Part III.

17See infra Parts I–II.

18See infra Parts I–II.

19See infra notes 128–55 and accompanying text.

20See, e.g., Milliken v. Bradley, 418 U.S. 717, 744–45 (1974) (limiting the power of the courts to impose interdistrictremedies for school segregation); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 54–58 (1973) (hold-ing that inequities in school funding do not deny equal protection).

21See Missouri v. Jenkins, 515 U.S. 70, 100–102 (1995) (holding that disparity in test scores between white and AfricanAmerican students alone does not prove the lack of a unitary system or justify continuing desegregation orders); Freemanv. Pitts, 503 U.S. 467, 485–92 (1992) (clarifying that partial compliance with a desegregation order should end that partof the order even if other parts of the order remain to be met); Board of Education v. Dowell, 498 U.S. 237, 246–49(1991) (holding that once a public school system has achieved unitary status, desegregation orders should end even if aresegregation of the public schools would result).



occurred. Some commentators, such asProf. Gerald Rosenberg, argue that thefailure to achieve desegregation reflectsinherent limits on the power of the judi-ciary.22 I strongly disagree. The judicia-ry’s failure lies in its actions, not ininherent limits to its power. Had theSupreme Court decided key cases differ-ently, the nature of public educationtoday would be very different.23

Although there are many causes for seg-regated schools, the overarching expla-nation for the Court’s rulings is simple:Justices appointed by Republican presi-dents have undermined desegregation.Four justices appointed by Pres. RichardNixon are largely to blame for the deci-sions of the 1970s; the cases were 5-to-4decisions, with those four justices help-ing make up the majority.24 Five justicesappointed by Presidents Ronald Reaganand George H.W. Bush are responsiblefor the 1990s decisions that have con-tributed substantially to resegregation ofschools.25 The resegregation of schoolsis largely a result of the Court’s decisions,not of the inherent limits in the judicialprocess.

Thirty years ago, in a prophetic dissent inMilliken v. Bradley, Justice ThurgoodMarshall reminded the nation of what isat stake in the fight for desegregation:26

[W]e deal here with the right of allchildren, whatever their race, to anequal start in life and to an equalopportunity to reach their full

potential as citizens. Those chil-dren who have been denied thatright in the past deserve betterthan to see fences thrown up todeny them that right in the future.Our nation, I fear, will be ill servedby the Court’s refusal to remedyseparate and unequal education,for unless our children begin tolearn together, there is little hopethat our people will ever learn tolive together.27

I. The Decisions of the 1970s: TheSupreme Court Contributes tothe Resegregation of AmericanPublic Education

The 1970s were a particularly critical timein the battle to desegregate Americanschools. From Plessy v. Ferguson in 1896until Brown in 1954, government-mandat-ed segregation existed in every southernstate and many northern states.28 As men-tioned above, in 1954 when Brown wasdecided, only 0.001 percent of AfricanAmerican students in the South attendedmajority white schools.29 After Brown,southern states used every imaginabletechnique to obstruct desegregation. Someschool systems attempted to close publicschools rather than desegregate.30 Someschool boards adopted so-called “freedomof choice” plans which allowed students tochoose the school where they would enrolland resulted in continued segregation.31 Insome places, school systems outright dis-

22See generally GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (arguing thatinherent limits on judicial power inhibit the courts’ ability to bring about social change, such as achieving desegregationand equalizing educational opportunity).

23See infra notes 169–73 and accompanying text.

24The four Nixon appointees—Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist—were joined byJustice Potter Stewart to comprise the majority opinion. See, e.g., Milliken, 418 U.S. at 720; Rodriguez, 411 U.S. at 2–3.

25Recent desegregation cases, such as Missouri v. Jenkins, 515 U.S. 70 (1995), have been 5-to-4 decisions, with themajority comprising Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. See id. at 72.

26Milliken v. Bradley, 418 U.S. 717 (1974).

27Id. at 783 (Marshall, J., dissenting).

28Plessy v. Ferguson, 163 U.S. 537 (1896).


30See, e.g., Griffin v. County School Board, 377 U.S. 218, 229–32 (1964) (holding that the closing of public schools,combined with tuition grants and tax breaks to private segregated schools, violates the Constitution).

31See, e.g., Green v. County School Board, 391 U.S. 430, 441–42 (1968) (overturning New Kent County’s “freedom ofchoice” plan as unconstitutional finding that it burdened students and parents with a responsibility which remained onthe school board).



obeyed desegregation orders.32 Thephrase “massive resistance” appropri-ately describes what occurred during thedecade after Brown. By 1964, in Griffin v.County School Board, the Supreme Courthad grown tired of the delay, lamentingthat there had been far too little speed,and ordered that all vestiges of prior seg-regation be eliminated “quick[ly] andeffective[ly].”33

The result of this massive resistance wasthat, a decade after Brown, little desegrega-tion had occurred. In the South just 1.2 per-cent of African American school childrenwere attending schools with whites.34 InSouth Carolina, Alabama, and Mississippinot one African American child attended apublic school with a white child in the1962–63 school year.35 In North Carolinaonly one-fifth of 1 percent (or 0.2 percent)of the African American students attendeddesegregated schools in 1961, and the figuredid not rise above 1 percent until 1965.36

Similarly, in Virginia in 1964, only 1.63percent of African Americans were attend-ing desegregated schools.37

But the persistent efforts at desegrega-tion had an impact. One by one theobstructionist techniques were defeated.Finally, by the mid-1960s, desegregationbegan to proceed. By 1968 the integrationrate rose to 32 percent, and 91.3 percent

of southern schools were desegregated by1972–73.38

Many factors explain the delay betweenBrown and any results in desegregation.Efforts to thwart Brown had to be defeat-ed. The 1964 Civil Rights Act, in whichTitle VI tied federal funds to eliminatingdesegregation, played a crucial role.39

But so did renewed attention by theSupreme Court to segregated schools. Fora decade after Brown, the Court largelystayed out of the desegregation effort.40

It was not until 1964 that the Courtlamented that “[t]here has been entirelytoo much deliberation and not enoughspeed” in achieving desegregation.41

Too few scholars have focused theirattention on whether the Court couldhave done more in the decade after Brownto hasten desegregation. The conven-tional wisdom seems to be that the resist-ance was so great and the techniques ofobstruction so varied as to require yearsof conquering opposition to achievedesegregation.42 While this view is wor-thy of merit, it may be too generous to theSupreme Court. In Brown the Court foundthat separate but equal is unconstitution-al, but it did not order a remedy.43 A yearlater, in Brown II, the Court consideredthe issue of remedy but did virtuallynothing.44 The Court sent the case back

32See, e.g., Cooper v. Aaron, 358 U.S. 1, 18–20 (1958) (demanding that states follow judicial orders of the U.S. SupremeCourt).

33Griffin, 377 U.S. at 232.

34Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VIRGINIA LAW REVIEW 7, 9 (1994).

35Id.

36Id.

37Id.

38Id. at 10.

39See Neal Devins, Judicial Matters, 80 CALIFORNIA LAW REVIEW 1027, 1034 (1992).

40Cooper v. Aaron, 358 U.S. 1 (1958), is a notable exception, in which the Court insisted on state compliance with afederal court desegregation order. Id. at 5.

41Griffin, 377 U.S. at 229.

42See generally UNITED STATES COMMISSION ON CIVIL RIGHTS, REVIEWING THE DECADE OF SCHOOL DESEGREGATION (1977) (describingresistance to desegregation); J. HARVIE WILKINSON, FROM BROWN TO BAKKE: THE SUPREME COURT AND SCHOOL INTEGRATION,1954–1978 (1978) (describing southern resistance following Brown).

43See Brown v. Board of Education, 347 U.S. 483, 495–96 (1954).

44Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II).



to the lower courts to achieve desegrega-tion “with all deliberate speed.”45 TheCourt did not even order the TopekaBoard of Education to admit Linda Brownto a desegregated school. Sixteen yearslater, the Court finally attempted to pro-vide guidance to lower courts in structur-ing remedies to desegregate schools inSwann v. Charlotte-Mecklenburg Board ofEducation.46 The Court approved tech-niques such as redrawing attending zonesand busing students to achieve desegre-gation.47 One must ask whether it wouldhave made a difference had the SupremeCourt in Brown II, or a case soon there-after, imposed timetables and detailedremedies for desegregation.

Whether such Supreme Court efforts wouldhave hastened desegregation remainsunclear. But it is too easy to assume that theywould have made little difference in the faceof massive resistance. Had the Court dictat-ed timetables, outlined remedies, and beenmore actively involved from 1954 to 1964,results might well have been different, atleast in some places.

By the 1970s, as described above, thenation finally saw substantial progresstoward desegregation. But three crucialproblems emerged:

■ white flight to suburbs threatenedschool integration efforts;48

■ northern school systems, which hadnot enacted Jim Crow laws, requireddesegregation;49 and

■ pervasive inequalities existed in fund-ing, especially between city and subur-ban schools.50

The Court’s handling of these issues wascritical in achieving desegregation. Ineach instance the Court, with four Nixonappointees in the majority, ruled againstthe civil rights plaintiffs and dramatical-ly limited the effectiveness of efforts atdesegregation and equal educationalopportunity.51

A. White Flight

By the 1970s a crucial problem hademerged: white flight to suburban areas.52

White flight came about, in part, to avoidschool desegregation and, in part, as aresult of a larger demographic phenome-non, namely, endangered successfuldesegregation.53 White families moved tosuburban areas to avoid being part ofdesegregation orders affecting cities. Invirtually every urban area, the inner citywas increasingly composed of racialminorities. By contrast, the surroundingsuburbs were almost exclusively white,and what little minority population didreside in suburbs was concentrated intowns that were almost exclusively AfricanAmerican.54 School district lines paralleltown borders, meaning that racial separa-tion of cities and suburbs results in segre-gated school systems. For example, by1980 whites constituted less than one-third of the students enrolled in the publicschools in Baltimore, Dallas, Detroit,

45Id. at 301.

46Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); see infra text accompanying notes 57–66.

47Swann, 402 U.S. at 28, 30; see infra text accompanying notes 57–66.

48See infra Part I.A.

49See infra Part I.B.

50See infra Part I.C.

51See infra text accompanying notes 57–123.

52A discussion of white flight including the context in which it occurred, how it occurred, the extent to which it occurred,and the reasons why it occurred is beyond the scope of this essay.

53See Steven E. Asher, Note, Interdistrict Remedies for Segregated Schools, 79 COLUMBIA LAW REVIEW 1168, 1173–74(1979) (discussing white flight in many major cities and arguing that federal and state constitutional grounds justify inter-district relief in a wide range of situations).

54See Milliken v. Bradley, 418 U.S. 717, 785 (1974) (Marshall, J., dissenting) (“Negro children had been intentionally con-fined to an expanding core of virtually all negro schools immediately surrounded by a receding herd of all whiteschools.”).



Houston, Los Angeles, Miami, Memphis,New York, and Philadelphia.55

Thus, by the 1970s, effective school deseg-regation required interdistrict remedies.The lack of white students in most majorcities prevented desegregation. Likewise,intradistrict remedies could not desegre-gate suburban school districts because ofthe scarcity of minority students in the sub-urbs. As Prof. T.A. Smedley explains:

Regardless of the cause, the resultof this movement [of whites tosuburban areas] is that theremaining city public school pop-ulation becomes predominatelyblack. When this process hasoccurred, no amount of atten-dance zone revision, pairing andclustering of schools, and busingof students within the city schooldistrict could achieve substan-tially integrated student bodies inthe schools, because there simplyare not enough white students leftin the city system.56

In Swann the Supreme Court addressedthe issue of the federal courts’ power toimpose remedies in school desegregationcases.57 The Court held that districtcourts had broad authority in formulatingremedies in desegregation cases.58 TheCourt stated that mathematical ratios—such as comparisons of the race in partic-ular schools with the overall race of thedistrict—were a “useful starting point in

shaping a remedy to correct past consti-tutional violations.”59 In using theseratios, the Court emphasized that not“every school in every community mustalways reflect the racial composition ofthe school system as a whole.”60 In fact,“some small number of one-race, or vir-tually one-race, schools within a district”may be unavoidable.61 Such a result,however, always should receive closejudicial review in a school system oncesegregated by law.62

The Court upheld the broad power of thedistrict courts to take “affirmative actionin the form of remedial altering of atten-dance zones … to achieve truly nondis-criminatory assignments.”63 The Courtalso stated

■ that courts could use busing as a reme-dy where needed64 and

■ that bus transportation was an impor-tant “tool of school desegregation.”65

The Court found that busing students wasa constitutionally acceptable remedyunless “the time or distance of travel is sogreat as to either risk the health of thechildren or significantly impinge on theeducational process.”66 But Swannfocused exclusively on remedies within aschool district. The holding did notaddress interdistrict remedies. When aschool system comprises predominantlyminority students, there is a limit to howmuch desegregation can be achievedwithout an interdistrict remedy.

55See T.A. Smedley, Developments in the Cases of School Desegregation, 26 VANDERBILT LAW REVIEW 405, 412 (1981).

56Id.

57See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16–18 (1971).

58See id. at 30.

59Id. at 25.

60Id. at 24.

61See id. at 26.

62See id. at 28.

63Id.

64See id. at 30.

65See id.

66Id. at 30–31.



In 1974 the Supreme Court started to takea different turn in its jurisprudence ofgranting broad powers to federal courtsin desegregation cases. In Milliken v.Bradley the Court imposed a substantiallimit on the courts’ remedial powers indesegregation cases.67 Milliken involvedthe Detroit-area schools and the realitythat, like so many areas of the country,Detroit was a mostly African Americancity surrounded by predominately whitesuburbs.68 A federal district courtimposed a multidistrict remedy to end dejure segregation in one of the districts.69

The Supreme Court ruled that this deseg-regation technique was impermissible:

Before the boundaries of sepa-rate and autonomous school dis-tricts may be set aside by consol-idating the separate units forremedial purposes or by impos-ing a cross-district remedy, itmust first be shown that therehas been a constitutional viola-tion within one district that pro-duces a significant segregativeeffect in another district.70

Thus, the Court concluded that “withoutan interdistrict violation and interdistricteffect, there is no constitutional wrongcalling for an interdistrict remedy.”71

Milliken has a devastating effect on theability to achieve desegregation in manyareas. In a number of major cities, inner-city school systems are substantiallyAfrican American and are surrounded byalmost all-white suburbs. Desegregationrequires the ability to transfer studentsbetween the city and suburban schools.

There simply are not enough white stu-dents in the city, or enough AfricanAmerican students in the suburbs, toachieve desegregation without an inter-district remedy. Yet Milliken precludes aninterdistrict remedy unless plaintiffsoffer proof of an interdistrict violation.72

In other words, a multidistrict remedycan be formulated only for those districtswhose own policies fostered discrimina-tion or if a state law caused the interdis-trict segregation. Otherwise the remedymay include only those districts found toviolate the Constitution. While suchproof is often unavailable, plaintiffs inrelatively rare cases have met Milliken’srequirements.73

I grew up in Chicago, an urban area in whichthe city is predominately minority, but sur-rounding suburbs are virtually all white. Forexample, on the West Side, the Austinneighborhood almost entirely comprisesAfrican Americans and Latinos. But justacross the border between the city and itssuburbs, Oak Park and especially RiverForest are overwhelmingly white. An inter-district remedy could help to desegregateboth the Chicago public schools and thenearby suburban schools. Little would berequired except redrawing attendancezones. But Milliken ensured that this kind ofremedy would not happen.

The segregated pattern in major metropol-itan areas—African Americans in the cityand whites in the suburbs—did not occur byaccident but rather was the product of myr-iad government policies. Moreover,Milliken has the effect of encouraging whiteflight. Whites who wish to avoid desegrega-tion can do so by moving to the suburbs. If

67Milliken v. Bradley, 418 U.S. 717, 752–53 (1974).

68Id. at 725.

69Id. at 732–34.

70Id. at 744–45.

71Id. at 745.

72Id. at 744–45. But see generally Evans v. Buchanan, 416 F. Supp. 328 (D. Del. 1976) (implementing metropolitan plan);United States v. Missouri, 363 F. Supp. 739 (E.D. Mo. 1973) (finding school district to be a remaining vestige of segre-gation), 388 F. Supp. 1058 (E.D. Mo.) (supplemental opinion), aff’d in part, rev’d in part en banc, 515 F.2d 1365 (8thCir.), cert. denied, 423 U.S. 951 (1975).

73See, e.g., United States v. Board of School Commissioners, 456 F. Supp. 183, 191–92 (S.D. Ind. 1978) (finding thathousing discrimination warranted interdistrict desegregation), aff’d in part and vacated in part, 637 F.2d 1101 (7th Cir.1980), cert. denied sub nom. Metropolitan School District v. Buckley, 449 U.S. 838 (1980); Evans, 416 F. Supp. at 352–53(approving interdistrict remedies when disparity in enrollment patterns are caused by government activity); see also Hillsv. Gatreaux, 425 U.S. 284, 305–6 (1976) (allowing an interdistrict remedy for housing discrimination).



Milliken had been decided differently, oneof the incentives for such moves would beeliminated. The reality is that in many areasthe Milliken holding makes desegregationimpossible.

In an important paper for The Resegregationof Southern Schools Conference, Prof.Charles Clotfelter quantifies the causes forsegregation of public schools.74 ProfessorClotfelter’s study dramatically proves theimpact of Milliken in perpetuating segrega-tion and preventing effective remedies.75

According to Professor Clotfelter, privateschools lead to only about 17 percent of seg-regation in the nation.76 By far the mostimportant factor accounting for segregationis racial disparities between public schooldistricts.77 Milliken precludes courts, inmost instances, from remedying this prob-lem and thus is significantly responsible forthe segregation of schools in the UnitedStates today.

B. Proving Discrimination inNorthern School Systems

Plaintiffs had no difficulty in provingdiscrimination in states that by law hadrequired separation of the races in edu-cation. But in northern school systems,where segregated schools were not theproduct of state laws, the issue arose as tothe requirements for proving an equalprotection violation and to justify a fed-eral court remedy. Northern school sys-tems were generally segregated; the issuewas what plaintiffs had to prove for courtsto provide a remedy.

The Supreme Court addressed this issuein Keyes v. School District No. 1, Denver,

Colorado.78 Keyes involved the publicschools of Denver, where substantial seg-regation existed, even though state lawhad never mandated the separation of theraces.79 The Court recognized that Keyeswas not a case where schools were segre-gated by statute but that,

[n]evertheless, where plaintiffsprove that the school authoritieshave carried out a systematic pro-gram of segregation affecting asubstantial portion of the stu-dents, schools, teachers, and facil-ities within the school system, it isonly common sense to concludethat there exists a predicate for afinding of the existence of a dualschool system.80

Once a plaintiff proves the existence ofsegregative actions affecting a significantnumber of students, an equal protectionviolation is demonstrated and justifies asystemwide federal court remedy because“common sense dictates the conclusionthat racially inspired school boardactions have an impact beyond the par-ticular schools that are the subjects ofthose actions.”81

Keyes held that, absent laws requiringschool segregation, plaintiffs must proveintentional segregative acts affecting a sub-stantial part of the school system. The Courtsaid that “a finding of intentionally seg-regative school board actions in a meaning-ful portion of a school system … creates apresumption that other segregated school-ing within the system is not adventi-tious.”82 Such proof places “the burden of

74The Resegregation of Southern Schools?: A Crucial Moment in the History (and the Future) of Public Schooling inAmerica (conference held at the University of North Carolina, Chapel Hill, August 29–30, 2002, and sponsored by TheCivil Rights Project of Harvard University and the University of North Carolina School of Law); see Charles T. Clotfelter,Private Schools, Segregation, and the Southern States 3–4 (Aug. 30, 2002) (unpublished manuscript, on file with theNorth Carolina Law Review).

75Id. at 17–20.

76Id. at 13, 32 tbl.5.

77Id. at 8–14.

78Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973).

79Id. at 201.

80Id.

81Id. at 203.

82Id. at 208.



proving that other segregated schools with-in the system are not also the result ofintentionally segregative actions” on thedefendant school systems.83

The Court therefore drew a distinctionbetween de jure segregation that existedthroughout the South and de facto segre-gation that existed in the North. The lat-ter constitutes a constitutional violationonly if there is proof of discriminatorypurpose. This approach is consistentwith the Supreme Court cases holdingthat when laws are facially neutral, proofof a discriminatory impact is not suffi-cient to show an equal protection viola-tion; proof of a discriminatory purposemust also exist.84 But requiring proof ofdiscriminatory purpose created a sub-stantial obstacle to desegregation innorthern school systems, where residen-tial segregation—which was a product ofmyriad discriminatory policies—causedschool segregation. The reality is thatKeyes created an almost insurmountableobstacle to judicial remedies for desegre-gation in northern cities. The govern-ment was responsible for segregation innorthern schools, but plaintiffs oftenfound it impossible to prove the govern-ment’s responsibility.

C. Inequality in School Funding

By the 1970s substantial disparitiesexisted in school funding. In 1972 educa-tion expert Christopher Jencks estimatedthat on average the government spent 15

percent to 20 percent more on each whitestudent’s education than on each AfricanAmerican child’s schooling.85 This dis-parity existed throughout the country.For example, the Chicago public schoolsspent $5,265 for each student’s educa-tion, but the Niles school system, justnorth of the city, spent $9,371 on eachstudent’s schooling.86 The disparity alsocorresponded to race: in Chicago 45.4percent of the students were white, and39.1 percent were African American; inNiles Township the schools were 91.6percent white and 0.4 percent AfricanAmerican.87 Camden, New Jersey, spent$3,538 on each pupil, but Princeton, NewJersey, spent $7,725.88

There is a simple explanation for the dis-parities in school funding. In most stateseducation is substantially funded by localproperty taxes. Wealthier suburbs havesignificantly larger tax bases than poorinner cities. The result is that suburbscan tax at a lower rate and still have agreat deal to spend on education. Citiesmust tax at a higher rate and nonethelesshave less to spend on education.89

The Court had the opportunity to remedythis inequality in education in San AntonioIndependent School District v. Rodriguez.90

The Court, however, profoundly failed andconcluded that the inequalities in fundingdid not deny equal protection.91 Rodriguezinvolved a challenge to the Texas system offunding public schools largely through localproperty taxes.92 Texas’s financing system

83Id.

84See, e.g., McCleskey v. Kemp, 481 U.S. 279, 297–99 (1987) (holding that proof of disparate impact is insufficient toestablish a constitutional violation in administration of the death penalty); Washington v. Davis, 426 U.S. 229, 239–45(1976) (holding that proof of discriminatory impact alone is not enough to prove a racial classification; there also mustbe proof of discriminatory purpose).

85CHRISTOPHER JENCKS, INEQUALITY: A REASSESSMENT OF THE EFFECT OF FAMILY SCHOOLING IN AMERICA 28 (1972).

86JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA’S SCHOOLS 236 tbl.1 (1991).

87Roberta L. Steele, Note, All Things Not Being Equal: The Case for Race Separate Schools, 43 CASE WESTERN RESERVE LAW

REVIEW 591, 620 n. 173 (1993).

88KOZOL, supra note 86, at 236 tbl.2

89JOHN E. COONS, WILLIAM H. CLUNE III & STEPHEN D. SUGARMAN, PRIVATE WEALTH AND PUBLIC EDUCATION 45–51 (1970); Donna E.Shalala & Mary Frase Williams, Political Perspectives on Efforts to Reform School Finance, 4 POLICY STUDIES JOURNAL 367,368 (1976).

90San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

91Id. at 55.

92Id. at 10–11.



meant that poor areas had to tax at a highrate but had little to spend on education;wealthier areas could tax at low rates but stillhad much more to spend on education.93

One poorer district, for example, spent$356 per pupil, while a wealthier districtspent $594 per student.94

The plaintiffs challenged this system on twogrounds: it violated equal protection asimpermissible wealth discrimination, andit denied children in the poorer districts thefundamental right to education.95 TheCourt rejected the former argument byholding that poverty is not a suspect classi-fication and thus discrimination against thepoor need meet only rational basisreview.96 The Court explained that, wherewealth was involved, the equal protectionclause did not require absolute equality orprecisely equal advantages.97 In thorough-ly viewing the Texas system for fundingschools, the Court determined that the sys-tem met the rational basis test.98

Moreover, the Court rejected the claimthat education is a fundamental right:99

It is not the province of this Courtto create substantive constitution-al rights in the name of guarantee-ing equal protection of the laws.Thus, the key to discoveringwhether education is “fundamen-tal” is not to be found in compar-isons of the relative societal signif-

icance of education as opposed tosubsistence or housing. Nor is it tobe found by weighing whethereducation is as important as theright to travel. Rather, the answerlies in assessing whether there is aright to education explicitly orimplicitly guaranteed by theConstitution.100

Justice Powell, writing for the majority,then concluded that “[e]ducation, ofcourse, is not among the rights affordedexplicit protection under our FederalConstitution. Nor do we find any basis forsaying it is implicitly so protected.”101

Although education obviously is inextri-cably linked to the exercise of constitu-tional rights such as freedom of speechand voting, the Court nonetheless decid-ed that education, itself, is not a funda-mental right:102

[T]he logical limitations onappellees’ nexus theory are diffi-cult to perceive. How, for instance,is education to be distinguishedfrom the significant personalinterests in the basics of decentfood and shelter? Empiricalexamination might well buttressan assumption that the ill-fed, ill-clothed, and ill-housed are amongthe most ineffective participantsin the political process, and thatthey derive the least enjoyment

93Id. at 27.

94Id. at 12–13.

95Id. at 17.

96Id. at 28–29. The Court determined that the system of alleged discrimination and the class it defined did not have the“traditional indicia of suspectness.” Id. at 28. In the Court’s view, the class was not saddled with such disabilities, or sub-jected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as tocommand extraordinary protection from the majoritarian political process. Id.

97Id. at 23–24 (citations omitted).

98Id. 47–53. After analyzing the various aspects of the Texas plan, the Court determined that it was “not the result ofhurried, ill-conceived legislation … [or] the product of purposeful discrimination against any group or class.” Id. at 55. Tothe extent that the plan of school financing resulted in unequal expenditures among children who resided in different dis-tricts, the Court found that such disparities were not the product of a system that was so irrational as to be invidiouslydiscriminatory. Id.

99Id. at 33.

100Id. at 33–34.

101Id. at 35.

102See id.



from the benefits of the FirstAmendment.103

The Court also noted that the Texas gov-ernment did not completely deny an edu-cation to students; the challenge was toinequities in funding.104 In concluding,the Court found that strict scrutiny wasinappropriate because neither discrimi-nation based on a suspect classificationnor infringement of a fundamental rightoccurred.105 The Court found that theTexas system for funding schools met therational basis test.

In Kadrmas v. Dickinson Public Schools theCourt reaffirmed that education was not afundamental right under the equal protec-tion clause.106 Kadrmas involved a chal-lenge brought by a poor family against aNorth Dakota statute authorizing localschool systems to charge a fee for the use ofschool buses.107 The Court reiterated thatpoverty was not a suspect classification andthat discrimination against the poor mustmeet only rational basis review.108 TheCourt found that the law did not deny anychild an education because the fee did notpreclude the student from attendingschool.109 Hence the Court said thatrational basis review was appropriate andconcluded that the plaintiffs “failed to carrythe ‘heavy burden’ of demonstrating the

challenged statute is both arbitrary andirrational.”110

These decisions are wrong—tragicallywrong in holding that there is not a funda-mental right to education. The Court shouldhave recognized a fundamental right toeducation under the Constitution, as it hasrecognized other rights that are not enu-merated, including

■ the right to travel,111

■ the right to marry,112

■ the right to procreate,113

■ the right to custody of one’s children,114

■ the right to control the upbringing ofone’s children,115 and

■ many others.116

Education is essential for the exercise ofconstitutional rights, for economicopportunity, and, ultimately, for achiev-ing equality. Chief Justice Warren elo-quently expressed this view in Brown:

Today, education is perhaps themost important function of stateand local governments. Compulsoryschool attendance laws and the greatexpenditures for education bothdemonstrate our recognition of the

103Id. at 37.

104Id. at 39.

105Id. at 28, 37–39.

106Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457–59 (1988).

107See id. at 452.

108Id. at 458.

109Id. at 459–60.

110Id. at 463 (quoting Hodel v. Indiana, 452 U.S. 314, 332 (1981)).

111See Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969).

112See Boddie v. Connecticut, 401 U.S. 371, 382–83 (1971).

113See Skinner v. Oklahoma, 316 U.S. 535, 541–43 (1942).

114See Stanley v. Illinois, 405 U.S. 645, 650–51 (1972).

115See Troxel v. Granville, 530 U.S. 57, 63–66 (2000).

116See, e.g., Cruzan v. Director, of Missouri Department of Health, 497 U.S. 261, 278–80 (1990) (finding a fundamen-tal right under the due process clause to refuse unwanted medical treatment); Roe v. Wade, 410 U.S. 113, 153 (1973)(“Th[e] right of privacy … is broad enough to encompass a woman’s decision … to terminate her pregnancy.”); Griswoldv. Connecticut, 381 U.S. 479, 485 (1965) (finding that the right to use contraceptives falls within a constitutionally pro-tected zone of privacy).



importance of education to ourdemocratic society. It is required inthe performance of our most basicpublic responsibilities, even servicein the armed forces. It is the veryfoundation of good citizenship.Today it is a principal instrument inawakening the child to cultural val-ues, in preparing him for later pro-fessional training, and in helpinghim to adjust normally to his envi-ronment. In these days, it isdoubtful that any child may rea-sonably be expected to succeed inlife if he is denied the opportunityof an education.117

Almost three decades after Brown, inPlyler v. Doe, Justice Brennan, again writ-ing for the majority, recognized the vitalimportance of public education.118 Heexplained that “public education is not a‘right’ granted to individuals by theConstitution. But neither is it merelysome governmental ‘benefit’ indistin-guishable from other forms of social wel-fare legislation.”119 Justice Brennannoted that both the importance of educa-tion in maintaining our basic institu-tions, and the lasting impact of its depri-vation on the life of the child, mark thisdistinction.120 The Court thus conclud-ed that education provides the basic toolsby which individuals might lead econom-ically productive lives to the benefit of usall.121 Education is so basic to the exer-

cise of other constitutional rights, and sobasic for success in society, that the Courtshould have found a fundamental right toa quality education.

The combined effect of Milliken andRodriguez cannot be overstated. Millikenhelped ensure racially separate schools,and Rodriguez ensured that the schoolswould be unequal.122 American publiceducation is characterized by wealthywhite suburban schools spending a greatdeal on education surrounding muchpoorer African American city schoolsthat spend much less on education.123

II. The Decisions of the 1990s: The Supreme Court EndsDesegregation Orders

Professor Orfield, briefly but accurately,notes a cause for the resegregation of the1990s: Supreme Court decisions endingsuccessful desegregation orders.124 Inseveral cases the Court concluded thatschool systems had achieved “unitary”status and thus that federal court deseg-regation efforts were to end.125 Thesedecisions resulted in the cessation ofremedies, which had been effective, andultimately resegregation resulted.126

Many lower courts followed the lead ofthe Supreme Court and have likewiseended desegregation orders, causingresegregation.127

117Brown v. Board of Education, 347 U.S. 483, 493 (1954).

118Plyler v. Doe, 457 U.S. 202 (1982). In Plyler the Supreme Court declared unconstitutional a Texas law that provided afree public education for children of all citizens and all noncitizens lawfully in the United States and required children ofundocumented aliens to pay for their public education. Id. at 229–30.

119Id. at 221.

120Id.

121Id.

122This is not to minimize the adverse effects of the other decisions, but Milliken and Rodriguez are crucial because theformer ensured the separateness of American public education and the latter ensured their inequality. In theory there stillcould have been effective desegregation through actions of the federal or state governments. But such actions did notoccur, and Milliken and Rodriguez meant that courts, the most likely agents for change, could not achieve desegregation.

123See generally JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY (2001)(discussing the combined impact of Milliken and Rodriguez).

124Orfield, supra note 1, at 16.


126See supra text accompanying note 6.




In several recent cases the SupremeCourt has considered when a federalcourt desegregation order should end. InBoard of Education v. Dowell the Courtdetermined whether a desegregationorder should continue when its termina-tion would mean a resegregation of thepublic schools.128 Oklahoma schoolshad been segregated under a state lawmandating separation of the races.129 Itwas not until 1972—seventeen years afterBrown—that courts ordered desegrega-tion.130 A federal court order was suc-cessful in desegregating the OklahomaCity public schools.131 Evidence indicat-ed that ending the desegregation orderwould likely result in dramatic resegre-gation.132 Nonetheless the SupremeCourt held that, once a “unitary” schoolsystem had been achieved, a federalcourt’s desegregation order should endeven if the action could lead to resegre-gation of the schools.133

The Court did not define “unitary sys-tem” with any specificity. The Court sim-ply declared that the desegregationdecree should end if the school boardhad “complied in good faith” and “thevestiges of past discrimination have beeneliminated to the extent practicable.”134

In evaluating these two factors, the Court

instructed the district court to look “notonly at student assignments, but ‘toevery facet of school operations—faculty,staff, transportation, extracurricularactivities and facilities.’”135

In Freeman v. Pitts the Supreme Courtheld that a federal court desegregationorder should end when a district com-plied with the order even if other deseg-regation orders for the same school sys-tem remained in place.136 A federaldistrict court ordered desegregation ofvarious aspects of a school system inGeorgia that previously had been segre-gated by law.137 Part of the desegregationplan had been met; the school systemhad achieved desegregation in pupilassignment and in facilities.138 Anotheraspect of the desegregation order, con-cerning assignment of teachers, howev-er, had not yet been fulfilled.139 Theschool system planned to construct afacility that likely would benefit whitesmore than African Americans.140

Nonetheless, the Supreme Court heldthat the federal court could not reviewthe discriminatory effects of the newconstruction because the part of thedesegregation order concerning facili-ties had already been met.141 The Courtstated that, once a portion of a desegre-

128Board of Education v. Dowell, 498 U.S. 237, 249–50 (1991).

129Id. at 240.

130Id. at 240–41.

131Id. at 241.

132Id. at 242. After the school board was released from the continuing constitutional supervision of the federal court, itadopted the Student Reassignment Plan (SRP). Under the plan, which relied on neighborhood assignments for studentsin grades K–4, a student could transfer from a school where he or she was in the majority to a school where he or shewould be in the minority. In 1985 it appeared that the SRP was a return to segregation. If the SRP was to continue, elevenof sixty-four schools would be greater than 90 percent African American, twenty-two would be greater than 90 percentwhite and other minorities, and thirty-one would be racially mixed. Id. In light of this evidence, the district court refusedto reopen the case. Id.

133Id. at 247–49.

134Id. at 249–50.

135Id. at 250 (quoting Green v. County School Board, 391 U.S. 430, 435 (1968)).

136Freeman v. Pitts, 503 U.S. 467, 490–91 (1992).

137Id. at 471.

138Id. at 480–81.

139See id. at 481 (finding that a racial imbalance existed in the assignment of minority teachers and administrators).

140Id. at 483.

141Id. at 488.



gation order was met, the federal courtshould cease its efforts as to that part andremain involved only as to those aspects ofthe plan that had not been achieved.142

Finally, in Missouri v. Jenkins the Courtmandated an end to a school desegregationorder for the Kansas City schools.143

Missouri law once required the racial seg-regation of all public schools. It was notuntil 1977 that a federal district courtordered the desegregation of the KansasCity, Missouri, public schools.144 The fed-eral court’s desegregation effort made a dif-ference. In 1983 twenty-five schools in thedistrict had an African American enroll-ment of greater than 90 percent ormore.145 By 1993 no elementary-level stu-dent attended a school with an enrollmentthat was 90 percent or more AfricanAmerican. At the middle-school and high-school levels, the percentage of studentsattending schools with an AfricanAmerican enrollment of 90 percent ormore declined from about 45 percent to 22percent.

The Court, in an opinion authored by ChiefJustice Rehnquist, ruled in favor of the stateon every issue.146 The Court’s holdingconsisted of three parts. First, the Courtruled that the district court’s order thatattempted to attract nonminority studentsfrom outside the district was impermissiblebecause the plaintiffs had not proved aninterdistrict violation.147 The social reality

is that many city school systems now pri-marily comprise minority students, whilesurrounding suburban school districts arealmost all white. Effective desegregationrequires an interdistrict remedy.148 ChiefJustice Rehnquist, however, appliedMilliken v. Bradley to conclude that theinterdistrict remedy—incentives to attractstudents from outside the district into theKansas City schools—was impermissiblebecause there only was proof of an intradis-trict violation.149

Second, the Court ruled that the districtcourt lacked authority to order an increasein teacher salaries.150 Although the districtcourt believed that an across-the-boardsalary increase to attract teachers wasessential for desegregation, the SupremeCourt concluded that the increase was notnecessary as a remedy.151

Third, the Court ruled that the continueddisparity in student test scores did not jus-tify continuance of the federal court’sdesegregation order.152 The Court con-cluded that the Constitution required equalopportunity and not equal result and that,consequently, disparities between AfricanAmerican and white students on standard-ized tests were not a sufficient basis forconcluding that desegregation had not beenachieved.153 Disparity in test scores is not abasis for continued federal court involve-ment.154 The Supreme Court held thatonce a district had complied with a deseg-

142Id. at 490–91.

143Missouri v. Jenkins, 515 U.S. 70, 103 (1995). Earlier in Missouri v. Jenkins, 495 U.S. 33 (1990), the Supreme Courtruled that a federal district court could order a local taxing body to increase taxes to pay for compliance with a desegre-gation order, although the federal court should not itself order an increase in the taxes.

144Jenkins, 515 U.S. at 74.

145Id. at 75.

146See id. at 70–71.

147See id. at 90, 92.

148See supra notes 72–73 and accompanying text.

149See Jenkins, 515 U.S. at 92–94, 97.

150Id. at 100.

151See id.

152See id.

153See id. at 101–2.

154See id. at 102.



regation order, the federal court effortshould end.155

The three cases—Dowell, Freeman, andJenkins—together have given a clear signalto lower courts: the time has come to enddesegregation orders even when the effectcould be resegregation. Lower courts havefollowed this lead. Indeed, it is striking howmany lower courts have ended desegrega-tion orders in the last decade, even whenprovided with clear evidence that the resultwould be increased segregation of the pub-lic schools. For example, in People Who Carev. Rockford Board of Education the UnitedStates Court of Appeals for the SeventhCircuit reversed a federal district courtdecision that refused to end desegregationefforts for the Rockford, Illinois, publicschools.156 The court began its analysis byobserving that the Supreme Court hadcalled for “‘bend[ing] every effort to wind-ing up school litigation and returning theoperation of the schools to the local schoolauthorities.’”157 The Seventh Circuit notedthe substantial disparity in achievementbetween white and minority students butstated that, although the Board “may have amoral duty [to help its failing minority stu-dents,] it has no federal constitutionalduty.”158 This analysis is the same reason-ing followed by other courts throughout thecountry in ending desegregation orders.159

Similarly the United States Court ofAppeals for the Fourth Circuit ended thedesegregation remedy for the Charlotte-Mecklenburg schools, a decision that wasupheld by the Supreme Court inSwann.160 Although this was a histori-cally segregated school system anddesegregation had been successful, thecourt ordered an end to desegregationefforts.161 The United States Court ofAppeals for the Eleventh Circuit endedthe desegregation order for theHillsborough County schools in Tampa,Florida.162 The Eleventh Circuit con-cluded that the Hillsborough Countyschools had achieved unitary status.163

Notwithstanding the Eleventh Circuit’sconclusion, at thirteen HillsboroughSchools, Latino students outnumberedwhites and African Americans com-bined.164 The Eleventh Circuit statedthat the segregation was the result ofwhite flight and voluntary residentialsegregation and thus was not a basis forcontinued desegregation efforts.165

In addition to these decisions by federalcourts of appeals, many district courtshave ordered an end to desegregationefforts, including several in 2002.166 Innone of these cases did the courts giveweight to the consequences of ending thedesegregation orders in causing resegre-gation of the public schools.

155See id.

156People Who Care v. Rockford Board of Education, 246 F.3d 1073, 1078 (7th Cir. 2001).

157Id. at 1074 (quoting People Who Care v. Rockford Board of Education, 153 F.3d 834, 835 (7th Cir. 1998)).

158Id. at 1076 (citations omitted).


160Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 335 (4th Cir.) (en banc), reconsideration denied enbanc, 274 F.3d 814 (4th Cir. 2001), cert. denied, 535 U.S. 986, and cert. denied, 535 U.S. 986 (2002).

161Id. at 353.

162NAACP v. Duval County Schools, 273 F.3d 960, 962 (11th Cir. 2001).

163Id. at 976.

164Marilyn Brown, Beyond Black and White, TAMPA TRIBUNE, Feb. 10, 2000, at A1.

165NAACP, 273 F.3d at 971–72.

166See, e.g., Berry v. School District, 195 F. Supp. 2d 971, 999–1001 (W.D. Mich. 2002) (ending desegregation effortsfor the Benton Harbor public schools); Lee v. Butler County Board of Education, 183 F. Supp. 2d 1359, 1368–69 (M.D.Ala. 2002) (ending desegregation order for the Butler County, Alabama, public schools); Lee v. Opelika City Board ofEducation, No. 70-T-853-E, 2002 U.S. Dist. LEXIS 2513, at *28–*29 (M.D. Ala. Feb. 13, 2002) (ending desegregationorder for Opelika, Alabama, schools); see also Davis v. School District, 95 F. Supp. 2d 688, 698 (E.D. Mich. 2000) (endingdesegregation order for the Pontiac, Michigan, public schools).



The trend across the country of federalcourts ending desegregation effortsmeans that resegregation will increase,potentially dramatically, in the nextdecade. Professor Orfield documents theresegregation that occurred during the1990s.167 Recent decisions indicate thatthis decade may see a much worse returnto resegregation.

III. The Cause of the Judicial Failure

Scholars, such as Prof. Gerald Rosenberg,see the failure to achieve desegregation as reflecting inherent limitations of courts.168 I strongly disagree. De-segregation likely would have been moresuccessful, and resegregation less likelyto occur, if the Supreme Court had madedifferent choices.

If the Court, from 1954 to 1971, had actedmore aggressively in imposing timeta-bles and outlining remedies, desegrega-tion might have occurred more rapid-ly.169 If the Court had decided Millikendifferently—not a fanciful possibilityconsidering the case was a 5-to-4 deci-sion—interdistrict remedies could haveproduced much more desegregation ofAmerican public education.170 If theCourt had decided Keyes differently, thencourts could have fashioned desegrega-tion remedies if there was proof of a dis-criminatory impact.171 Requiring ashowing of discriminatory intent dra-matically limited the ability of the feder-al courts to order desegregation of defacto segregated northern city school

systems. If the Court had decidedRodriguez differently, there would havebeen more equality in school fundingand educational opportunity.172 If thedecisions of the 1990s had been differ-ent, successful desegregation orders inmany cities still would have remained inplace.173 Therefore, the dismal statisticsabout current segregation are less anindication of the inherent limits of thejudiciary and more a reflection of theSupreme Court’s choices.

What, then, explains the Court’s choices?The answer is obvious: its decisionsresult from the conservative ideology ofthe majority of the justices who sat on theCourt when these cases were decided.Milliken and Rodriguez were both 5-to-4decisions, and the majority included thefour Nixon appointees who joined theCourt in the few years before those rul-ings. If the Warren Court had decided thecases in 1968, six years before Millikenand five years before Rodriguez, the caseswould have been resolved in favor ofinterdistrict remedies. If HubertHumphrey had won the 1968 presiden-tial election and appointed the succes-sors to Justices Warren, Fortas, Black,and Harlan, the result would have beendifferent in these cases.

Similarly the decisions of the 1990s werethe product of conservative, Republicanjustices. In each of the cases five Reaganand Bush appointees—Chief JusticeRehnquist (who was nominated byPresident Reagan to be chief justice) and


168See ROSENBERG, supra note 22, chs. 2–3 (discussing the failure to achieve desegregation as reflecting limits on the pow-ers of the judiciary to bring about social change).

169See supra notes 40–47.



172Indeed, a number of state supreme courts have found that inequalities in funding violate provisions of their state con-stitutions. See, e.g., Serrano v. Priest, 557 P.2d 929, 957–58 (Cal. 1977) (holding that the California school financing sys-tem violated equal protection provisions of the California Constitution); Rose v. Council for Better Education, 790 S.W.2d186, 215–16 (Ky. 1989) (finding defendant’s common school financing system unconstitutional); McDuffy v. Secretary ofEducation, 615 N.E.2d 516, 617 (Mass. 1993) (holding that the school financing system violated the state’s constitution);Abbott v. Burke, 575 A.2d 359, 393–94 (N.J. 1990) (finding the Public School Education Act unconstitutional); TennesseeSmall School System v. McWherter, 851 S.W.2d 139, 156–57 (Tenn. 1993) (declaring educational funding statutes uncon-stitutional); Edgewood Independent School District v. Kirby, 777 S.W.2d 391, 397–98 (Tex. 1989) (finding the state schoolfinancing system in violation of state constitution).

173See supra Part II.



Justices O’Connor, Scalia, Kennedy, andThomas—constituted the majority inordering an end to desegregation orders.

The cause of the judicial failure could notbe clearer: conservative justices haveeffectively sabotaged desegregation. InJune 2002 Justice Thomas wrote a con-curring opinion in Zelman v. Simmons-Harris, in which the Supreme Courtupheld the constitutionality of the use ofvouchers in parochial schools.174 JusticeThomas lamented the poor quality ofeducation for African Americans in innercities and urged voucher systems as asolution.175 The irony, and indeedhypocrisy, of Justice Thomas’s opinion isenormous. The rulings of his conserva-tive brethren have contributed signifi-cantly to the educational problems ofracial minorities. Justice Thomas hasnever suggested that the Court reconsid-er any of the decisions discussed in thisessay. But he is very willing to allowvouchers, which would take money fromthe public schools and transfer it to pri-vate, especially parochial, institutions.

Conclusion

During the Vietnam War, Sen. GeorgeAiken said that the United States shoulddeclare victory and withdraw fromVietnam.176 The Supreme Court seemsintent on declaring victory over the prob-lem of school segregation and withdrawingthe judiciary from solving the problem. Butas Professor Orfield demonstrates, theproblem has gotten worse, not better.177

The years ahead look even bleaker as courtsend successful desegregation orders.178

People can devise rationalizations to makethis desegregation failure seem acceptable:that courts could not really succeed; thatdesegregation does not matter; that parentsof minority students do not really careabout desegregation. But none of theserationalizations is true. Brown v. Board ofEducation stated the truth: separate schoolscan never be equal.179 Tragically todayAmerica has schools that are increasinglyseparate and unequal.

Author’s Acknowledgment

I want to thank Jennifer Fercovich andTatyana Litovsky for their excellent researchassistance.

174Zelman v. Simmons-Harris, 122 S. Ct. 2460, 2480 (2002) (Thomas, J., concurring). The Supreme Court upheld the consti-tutionality of an Ohio law that allowed parents to use vouchers in the Cleveland city schools. Id. Approximately 96 percent ofparents used their vouchers in parochial schools. Id. at 2466. In a 5 to-4 decision, the Court upheld this use as constitutional.Id. at 2480. The Court’s division was identical to that in the 1990s decisions ordering an end to desegregation orders: the major-ity comprised Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. Id. at 2462.

175Id. at 2480 (Thomas, J., concurring). Indeed, Justice Thomas lamented the current condition of inner-city schools in very pow-erful language: “Frederick Douglass once said that ‘[e]ducation … means emancipation. It means light and liberty. It means theuplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.’ Today many of ourinner-city public schools deny emancipation to urban minority students. Despite this Court’s observation nearly 50 years ago inBrown v. Board of Education, that ‘it is doubtful that any child may reasonably be expected to succeed in life if he is denied theopportunity of an education,’ urban children have been forced into a system that continually fails them.” Id. (alteration in orig-inal) (citations omitted).

176Albin Krebs, George Aiken, Longtime Senator and G.O.P. Maverick, Dies at 92, NEW YORK TIMES, Nov. 20, 1984, at B10.

177See Orfield, supra note 1, at 2. Professor Orfield’s report, including statistics from the 2000 census, illustrates that from 1988to 1998 southern school segregation intensified. Id. tbls.1, 3, 6. This trend occurred during a time period where three SupremeCourt decisions authorized a return to segregated neighborhood schools and limited the reach and duration of desegregationorders. Id. at 2. Orfield concludes that from 1988 to 1998 “most of the progress of the previous two decades in increasing inte-gration in the [South] was lost,” id. at 2, and provides numerous recommendations for a stable interracial education system. Id.at 48.

178The issue of what could be done differently is beyond the scope of this essay, except as it is implicit in the criticism of whatthe Supreme Court has done. A major national initiative for school desegregation is needed. This initiative could come throughCongress as it could document extensive segregation and inequalities in the public schools and adopt a comprehensive statutemandating interdistrict remedies and equity in school funding. There would be constitutional challenges based on recent feder-alism decisions, yet remedying such inequalities is at the very core of Congress’ powers under the Thirteenth and FourteenthAmendments. Alternatively the Supreme Court could reverse course and reconsider the decisions discussed in this essay; thosedecisions have contributed so much to the resegregation and inequalities in American public education. There is no indicationwhatsoever that these—or any actions—from Congress or the Supreme Court are likely in the foreseeable future.

179Brown v. Board of Education, 347 U.S. 483, 495 (1954).

Documents

The Segregation and Resegregationpovertylaw.org/.../article/chr_2005_january_february_chemerinsky.pdf · Review Association; Erwin Chemerinsky.] Schools in the South and throughout