EFFECTIVE SCHOOL-INTEGRATION MOBILIZATION: THE CASE FOR NON-LITIGATION ADVOCACY AND IMPACT.

• Author: Tipson, David

Introduction 475 I. Historical Background 477 A. School Desegregation in the United States 477 B. School Integration in New York City 487 C. Status Quo in 2011 489 II. Framing the Role for Legal Advocacy 493 III. Implementation 500 A. Challenging Legal and Regulatory Structures Inhibiting NYCDOE Action 500 B. Creating a Precedential Student-Assignment Plan 503 C. Coordination with the State Education Department and NYCDOE 508 D. Building on Progress 511 Conclusion 515 INTRODUCTION

Racial segregation of the public schools in New York City--the largest school district in the United States--was ignored by advocates and others for far too long. The effort to desegregate the schools has been led not by courtroom lawyers but by advocates and a private law firm engaged in community building and legal advocacy with compelling results. That nearly ten-year effort has already paid clear dividends. By the summer of 2019, there was widespread consensus that school integration was one of the most important challenges facing the New York City Department of Education (NYCDOE). Both Mayor Bill de Blasio and Chancellor of Schools Richard Carranza were under significant scrutiny to determine how they would respond to a new task force report proposing bold actions to address the problem.

Yet only seven years prior, despite heightened levels of segregation, integration was rarely discussed as a solution to educational inequality in the New York City school system. In a rare exception, a 2012 New York Times piece blithely concluded that integration efforts in prior decades had failed to achieve results. (1) The dominant mode of education advocacy was addressing resource disparities caused by segregation. What happened in the intervening years was neither a spontaneous burst of advocacy by community members affected by school segregation nor a unilateral action by professional legal advocates, but a complex interplay between the two types of advocacy.

Through a critical examination of our work at the nonprofit organization New York Appleseed (Appleseed) and the global law firm Orrick, Herrington & Sutcliffe LLP (Orrick) in New York City over a nearly ten-year period from 2011 to 2020, this Essay explains the role that advocates with legal training played and makes the case that legal advocates can and should utilize this successful playbook without involving what is often a regressive court system to build a path for the most effective advocacy in the future. (2)

Part I provides a brief history of school integration in the United States and New York, emphasizing federal caselaw that both constrained and sometimes enabled our work. Part II describes our process for framing a role for legal advocacy in response to this history, local circumstances in New York City, and ethical and strategic considerations. Part III studies our implementation of that role starting in 2011 when school integration infrequently figured in the public education debate in New York City. Drawing on news articles, published reports, and the Authors' records, this Essay examines the ways in which advocates used legal training and legal analysis to (1) seed the reform movement in the early years, (2) break down initial institutional resistance, and (3) support community stakeholders joining the movement--all without resorting to litigation. In the process, this Essay situates Appleseed and Orrick's work in (and in some cases distinguishes it from) the current theory and practice of "community lawyering."

Part IV reflects on the Authors' work and its possible lessons for other legal advocates working on school integration and other social justice issues. While other law journal articles have focused on litigation's impact on school integration, there has been insufficient and even scant attention paid to advocacy focused on the administrative state and the role lawyers can play in such movements. This Essay challenges conventional wisdom around the proper role of lawyers in supporting movements for social change and argues for a broader definition of "legal advocacy." Our experiences suggest that lawyers and those with legal training must bring the same range of modes and skills to social movements that they do to their paying clients (who typically avoid litigation because of its excessive cost and delay), including an ability to work within existing legislative and administrative frameworks and with other institutions and organizations.

1. HISTORICAL BACKGROUND

   1. School Desegregation in the United States

      For the first half of the twentieth century, the reigning doctrine in the United States school system was Plessy v. Ferguson's "separate but equal," which allowed for the racial division of all public facilities. (3) But in 1954, with the Supreme Court's decision in Brown v. Board of Education, (4) the United States took the first major step towards school desegregation. (5) Brown began as a class action lawsuit against the Topeka Board of Education by named plaintiff Oliver Brown, a Black man whose daughter was denied entrance to Topeka's all-white elementary schools. (6) Represented by the NAACP Legal Defense and Educational Fund (LDF), including lead counsel (and future Supreme Court Justice) Thurgood Marshall, Brown successfully argued that schools for Black children were not equal to schools for white children and that school segregation violated the Equal Protection Clause of the Fourteenth Amendment. (7) One year later, the Supreme Court revisited the question of relief and further ordered that schools be desegregated "with all deliberate speed," although it remanded the case to the district courts to determine whether such speed was being achieved. (8)

      The Supreme Court in Brown purported to abolish "separate but equal," and in the wake of that decision, various states, including Kansas, began desegregating their public schools. (9) But when "all deliberate speed" met racist and indignant public opinion, the result was massive resistance by Southern states. In Virginia, Senator Harry Byrd opted to close schools instead of desegregating them. (10) Alabama Governor George Wallace physically blocked Black students from enrolling at the University of Alabama. (11) In Mississippi, a member of the White Citizens Council and Ku Klux Klan murdered Medgar Evers, who was suing to desegregate Jackson's schools. (12) And in Arkansas, Governor Orval Faubus ordered the Arkansas National Guard to block Black students from entering Little Rock Central High School, leading to a standoff against President Dwight Eisenhower's federal troops. (13)

      By 1968, the Supreme Court was losing patience with the slow pace of school integration across the South. In Green v. County School Board of New Kent County, (14) the Court reviewed a challenge to a "freedom-of-choice" plan supposedly designed to integrate formerly segregated schools. Only 15% of Black students transferred to the formerly white school, and no white students transferred to the formerly Black school. (15) In a unanimous opinion, the Supreme Court recognized that the district needed to actively remove disparities between schools in order to remove the "dual system" that segregation had brought into being. (16) The Court announced an "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." (17) The Court also listed several factors to evaluate whether schools were truly integrated: (1) school administration, (2) the physical condition of the school, (3) transportation and busing, (4) personnel and faculty, (5) revision of districts and attendance areas, and (6) revision of local laws and regulations. (18)

      Green's emphasis on eliminating disparities within a "dual system" opened the door to a wave of desegregation cases in northern cities where there had been no prior laws explicitly requiring racial segregation in school enrollment. (19) The first of these to reach the Supreme Court was Keyes v. School District. (20) In that case, the Court clarified that even school districts without a history of legally mandated racial segregation throughout the district could be subject to desegregation orders if the school board's segregative action has been proven with respect to a portion of the school system. (21)

      Northern officials who opposed federal desegregation efforts also began using school district boundary lines to perpetuate the status quo--injecting money into new, suburban schools that effectively prohibited Black attendance by drawing district boundary lines consistent with segregated housing patterns. (22) The Court addressed this conduct in Milliken v. Bradley, (23) which arose two decades after the Brown decision. Milliken's landscape was metropolitan Detroit, where at the time, almost two-thirds of city students were Black, while nearly all students in the growing suburban localities were white. (24) Milliken's class action plaintiffs filed suit, alleging that Detroit's school districting policies amounted to segregation and thereby violated the Equal Protection Clause. (25) The district court held that the government's actions established and maintained a pattern of residential segregation throughout Detroit and devised a remedial plan that created clusters of schools across Detroit's school districts. (26) Without such a plan, the court reasoned, Detroit would end up with a central, city school system educating mostly Black students, surrounded by a suburban ring of mostly white school districts. (27) The court of appeals affirmed, but the Supreme Court voted 5-4 to overturn, holding that remedial efforts could not cross district boundaries unless the Detroit School Board committed unconstitutional actions that had a segregative impact on other districts, or the segregated condition of the relevant schools must itself have been influenced by segregative practices in the surrounding...