Federal Enforcement is Key to Brown Legacy

photo credit: The U.S. Army via photopin cc
photo credit: The U.S. Army via photopin cc

Fifty years ago—a decade after the U.S. Supreme Court’s historic decision in Brown v. Board of Education of Topeka—there still had been little real progress in desegregating the nation’s schools.

In 1964, only 2 percent of black students were attending formerly all-white schools in the states of the former Confederacy, according to a 1966 report by the U.S. Civil Rights Commission.

Then came the Civil Rights Act of 1964, the landmark legislation signed by President Lyndon B. Johnson that is best known to many Americans today for its prohibitions on discrimination in the workplace. But several key provisions of the statute provided a jump-start to the desegregation process.

The Civil Rights Act authorized the U.S. Department of Justice to sue states and school districts to compel desegregation. Another provision allowed the department to intervene in existing civil rights lawsuits being pressed by private parties. And the law’s Title VI prohibited discrimination on the basis of race, color, or national origin in federally funded programs.

“There is no doubt the Civil Rights Act gave a big boost to desegregation,” said James E. Ryan, the dean of the Harvard Graduate School of Education and an expert on education law. “Having the weight and the resources of the federal government behind these cases was a very big deal.”

The civil rights statute and the Elementary and Secondary Education Act of 1965, which provided federal aid to schools on a large scale, gave the federal government carrots as well as the stick of litigation to pursue desegregation goals.

With further help from the Supreme Court, real progress was made in desegregating Southern schools, and some in Northern cities, too.

High Court’s Shifting Stance

But the high court, so central to prodding the nation to end legal segregation of the races in its schools, hasn’t decided a desegregation case in nearly 20 years. In its last such case, justices expressed impatience with continuing judicial supervision of schools.

More recently, in 2007, a sharply divided court in the Parents Involved in Community Schools v. Seattle School District case curtailed the voluntary uses of race in school systems that had been freed of court supervision for desegregation or had never been found to have violated the U.S. Constitution.

Today, the Justice Department remains among the country’s most vigilant activists for reaching desegregation goals. The department was once a party to or an intervenor in hundreds of desegregation matters, and it still has 184 active cases on its list.

Anurima Bhargava, the head of the educational opportunities section of the Justice Department’s civil rights division, said in a rare interview that the job the nation embarked on 60 years ago is still a top priority for the federal government.

“The goals remain as they have for a long time,” said Ms. Bhargava, a political appointee who formerly headed the education practice for the NAACP Legal Defense and Educational Fund. “How do we address the vestiges of segregation?”

The role of the 1964 Civil Rights Act in the nation’s desegregation saga has been somewhat underplayed over the years, scholars say.

Bruce Ackerman, a professor of law and political science at Yale University, argues in a new book that the statute broke a 10-year impasse over desegregation progress since the Brown ruling by giving the federal government the tools to get involved.

“By authorizing the Justice Department to bring its own lawsuits and to intervene in those brought by others, the act greatly increased the courts’ capacity to transform Brown into a living reality,” Mr. Ackerman writes in We the People: The Civil Rights Revolution.

Until passage of that law, “the NAACP Legal Defense Fund had been the only actor” filing desegregation lawsuits, Mr. Ackerman added in an interview. Although the private organization—led for a long time by Thurgood Marshall, a future U.S. Supreme Court justice—had filed some 500 desegregation suits, “there were vast areas of the South where there was not even a pretense of desegregation,” Mr. Ackerman said.

He and other legal scholars agree on another important development stemming from the Civil Rights Act. What was then the U.S. Department of Health, Education, and Welfare issued guidelines—tepid at first in 1965, but stronger a year later—that set desegregation goals that schools receiving federal aid should meet.

“The ESEA put a lot of money on the table, so the threat of withdrawing federal funds” based on Title VI of the Civil Rights Act now had some power behind it, Mr. Ryan of Harvard said.

photo credit: villanovalawlibrary via photopin cc
photo credit: villanovalawlibrary via photopin cc

The guidelines also gave local school leaders some political cover to begin desegregating in earnest, and the guidelines were embraced by federal district judges who were formulating decrees, Mr. Ryan said.

The Supreme Court itself “got back in the game,” he pointed out, with its 1968 decision in Green v. New Kent County School Board. That case was based on a lawsuit against a small Virginia district in 1965, in which a lower court had upheld a type of “freedom of choice” plan that was widely adopted by many Southern districts as a token effort at desegregation.

The high court said a freedom-of-choice plan was not acceptable where other desegregation tactics were available to provide a speedier, more effective result.

“Integration is starting to work by this point, and Justice [William E.] Brennan [Jr.]”—the author of the opinion in Green—”can say the days of ‘all deliberate speed’ are over, and we want integration now,” said Mr. Ackerman.

By 1970, one-third of black students in the South were attending schools where a majority of students were white, according to a 1999 report by the Civil Rights Project, which was then based at Harvard University and is now at the University of California, Los Angeles.

Gathering Dust?

The federal role in pressing school systems to purse their desegregation goals became entrenched over the next quarter-century, even as the Supreme Court’s commands evolved.

In 2007, the Civil Rights Commission issued a detailed reportexamining Justice Department enforcement of school desegregation. The report noted that Supreme Court decisions in 1991 and 1992 had made it easier for school districts to be declared unitary—meaning no longer operating a dual system—and thus be freed from court supervision.

The number of cases involving the Justice Department had declined from 430 in 2000 to 266 by 2007, the report said. The commission’s key finding was that the increase in jurisdictions obtaining unitary status had not had an adverse effect on actual levels of racial integration in their schools.

Still, “many of the original desegregation orders have been in place for decades,” the commission observed.

Many of those orders now are gathering dust because the cases are largely inactive. Others still bind districts on matters such as student assignment, attendance zones, and faculty-diversity goals.

Allison Brown, who was a career lawyer in the educational opportunities section of the Justice Department’s civil rights division under the administrations of Presidents George W. Bush and Barack Obama, said in an interview that the department has been able to bring about agreement on certain modern-day concerns in some districts.

In the 6,000-student Meridian, Miss., school system, for example, the Justice Department, the district, and the private plaintiffs who first sued to desegregate the system in 1965 agreed on a consent decree last year addressing student discipline. The decree was meant to settle an investigation into charges that the district disproportionately subjected black students to suspensions, expulsions, and school-based arrests, often for minor infractions.

Ms. Brown, now an education law consultant based in Washington, said lawyers in the educational opportunities section often confronted the mind-set that desegregation work was something out of another era.

“That was something we battled a lot,” she said. “But desegregation, to us, still felt like a very real tool for changing that mindset.”

Story written by Mark Walsh

Source: Education Week

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