Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education.

• Author: Douglas, Davison M.

By Gary Orfield, Susan E. Eaton, and the Harvard Project on School Desegregation. New York: The New Press. 1996. Pp. xxiii, 424. $30.

Forty years after the Supreme Court's decision in Brown v. Board of Education,(1) America's schools are becoming increasingly racially segregated. Since the late 1980s, segregation levels have increased such that urban schools are now more racially imbalanced than they were prior to the Supreme Court's 1971 Swann v. Charlotte-Mecklenburg Board of Education(2) decision, which legitimated the use of busing to integrate city school districts beset with significant residential segregation.(3) Moreover, the gap between Black and White achievement levels, which narrowed from the early 1970s until the late 1980s, has increased during the early 1990s.(4)

Yet, despite this trend toward greater school segregation, public discourse about America's schools no longer focuses on preserving racial mixing. Increasingly, discussion of school desegregation -- among academicians, politicians, and judges -- has been dominated by its critics. Although most Americans still say they favor desegregated schools (pp. 109-10), school desegregation -- particularly busing -- increasingly has been blamed for many of this country's education woes, and school choice has emerged as the new watchword in American education.

Recent books by political scientists such as David Armor(5) and Christine Rossell(6) sharply question the educational benefits of mandatory desegregation plans, such as busing, and promote instead the use of voluntary desegregation devices, such as magnet schools, which emphasize parental choice. During the past ten years, dozens of school districts have persuaded courts, weary from decades of school supervision, to allow them to abandon busing plans in favor of neighborhood schools and magnet schools, notwithstanding the resegregative effects of those decisions.(7) Even in the African-American community, where support for racially mixed schools traditionally has been strongest, more and more leaders question the wisdom of pursuing racial balance at the expense of Strong Black schools.(8) Indeed, much of the support for a return to the neighborhood school has come from African Americans. School desegregation no longer dominates the agenda of the civil rights community.(9)

Gary Orfield,(10) long one of this country's most relentless supporters of school integration, Susan Eaton,(11) and the Harvard Project on School Desegregation(12) challenge this emerging orthodoxy in their new book Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education. They worry that the increase in racial isolation poses great risks for America's urban minority children and urge jurists and educators to keep "their eyes on the prize of Brown rather than [turn] . . . again down the blind alley of Plessy" (p. 112). According to Orfield and Eaton,(13) the current trend toward greater racial separation in the public schools bears striking and disturbing similarities to the movement toward segregation in this country at the end of the nineteenth century. Noting that Black schools worsened relative to White schools following the Supreme Court's decision in Plessy v. Ferguson,(14) the authors fear that the present increase in racial isolation could lead to similar results:

The nation today is experiencing the quiet consolidation of a system of

segregation and inequality. Much the same thing happened after

Plessy. Generations passed as segregation was consolidated and

built into the fabric of our developing metropolitan areas. Rigid

segregation was followed by dramatic increases in the inequality of

resources; there are signs of the same trend now. As we face

resegregation and inequality, it is urgent to seek policies that lead

back toward the vision of Brown. [p. 345]

Orfield and Eaton place the blame for this increasing racial isolation in large part on the Supreme Court. They argue that the Court has retreated from its earlier insistence on the elimination, or at least substantial reduction, in racial isolation in urban schools. Part I of this review essay considers the Court's school desegregation jurisprudence and concludes that the Court's decisions on interdistrict remedies and unitariness have indeed impeded urban desegregation.

Yet Orfield and Eaton do more than merely review the Supreme Court's evolving school-desegregation jurisprudence. Relying in part on several case studies of school desegregation plans around the country,(15) they argue that racial isolation in urban schools harms minority children and that alternative measures such as voluntary magnet schools will not, in the long run, produce the same educational and social benefits as would mandatory pupil-assignment plans such as busing (pp. 64-71, 277-80). They also argue that despite growing support in the African-American community for strong, albeit separate, minority schools, minority children will invariably fare less well in racially isolated schools. Part II of this review essay considers Orfield and Eaton's empirical claims regarding the effects of racial isolation on minority children and concludes that the exact effect of school desegregation is more difficult to assess than Orfield and Eaton suggest. It also concludes that though racial mixing is difficult to achieve in many inner-city school districts, racially isolated urban schools are particularly vulnerable to insufficient public support.

Ultimately, this is not a book about legal doctrine; rather, it is a book about education policy. During the four decades since Brown, the debate about school desegregation has been waged primarily in the federal courts. As the Supreme Court continues its slow retreat from this area of law, the locus of debate over school desegregation has shifted to state legislatures, state courts, and local school boards, where policy arguments about the educational and social benefits of pupil mixing have assumed increasingly greater relevance.(16) In this new arena, the concerns that Orfield and Eaton raise will play an even larger role in reshaping American urban education

1. The Evolution of School-Desegregation Jurisprudence and Its Effect On Urban Schools

   Orfield and Eaton blame the Supreme Court for both the failure of Brown to achieve greater pupil mixing and the recent increases in racial isolation.(17) Indeed, two important doctrinal developments in school-desegregation jurisprudence during the past quarter century have contributed to greater segregation in urban schools: (1) the Court's reluctance to allow interdistrict remedies, which effectively foreclosed much northern urban desegregation; and (2) the Court's increasing inclination to find that the effects of past intentional segregation have been eliminated and thus to excuse school districts from ongoing desegregation obligations. In the book's title, Orfield and Eaton characterize these doctrinal developments, which undoubtedly have had a significant impact on the increase in racial isolation in urban schools, as a "[q]uiet [r]eversal of Brown v. Board of Education."

   1. The Restriction on Interdistrict Remedies

      Following enactment of Title VI of the Civil Rights Act of 1964,(18) large numbers of southern school districts eliminated race-conscious pupil assignments in the face of threatened funding cut-offs.(19) As a result of vigorous enforcement of Title VI by the Department of Health, Education, and Welfare, the percentage of Black children attending desegregated schools in the South increased tenfold, from two to twenty percent, between 1964 and 1968.(20) Yet these early efforts barely affected southern cities with substantial residential segregation. In 1971, the Supreme Court addressed the issue of urban school desegregation in its landmark Swann(21) decision. The Court legitimated the reassignment of children to schools outside of their immediate neighborhoods in order to overcome residential segregation. In the wake of Swann, urban school districts, particularly in the South, dramatically increased the use of school busing.(22) Two years later, in Keyes v. School District No. 1,(23) the Supreme Court extended school-desegregation obligations to northern and western states by holding that school districts in states with no recent history of de jure segregation were nonetheless obligated to desegregate if the districts themselves had engaged in any type of discriminatory behavior.

      The Keyes decision, coupled with Swann, appeared to open the door to desegregation efforts in urban school districts throughout the nation. But many northern urban school districts encountered desegregation hurdles that southern districts, such as the Charlotte district at issue in Swann, did not encounter. Whereas many southern urban school districts cover an entire metropolitan area, encompassing inner-city areas along with suburban and even rural areas, in the North, self-contained inner-city, majority-Black school districts are much more common.(24) As a result, many northern urban school districts could not be desegregated without transporting students across school district lines.

      In 1972, a federal district court judge in Detroit ordered a metropolitan-area-wide desegregation remedy, encompassing fifty-three suburban school districts, in order to desegregate the Detroit schools.(25) In a decision that would prove extremely significant for urban desegregation, the Supreme Court in 1974 ruled five to four in Milliken v. Bradley(26) that the district court had erred in requiring an interdistrict school remedy without a showing that the school district lines had been constructed with an intent to preserve segregation or that the state or suburban school districts had taken other action that contributed to the interdistrict segregation.(27)

      Although a few courts did order interdistrict desegregation remedies after Milliken -- most notably in Wilmington, Delaware,(28) and Indianapolis(29)...