A New Era for Desegregation

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 28 No. 2

Georgia State University Law Review

Volume 28 . ,

Article 4

Issue 2 Winter 2012

3-14-2012

A New Era for Desegregation

Danielle Holley-Walker

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Recommended Citation

Holley-Walker, Danielle (2011) 'A New Era for Desegregation ," Georgia State University Law Review: Vol. 28: Iss. 2, Article 4. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss2/4

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A NEW ERA FOR DESEGREGATION Danielle Holley-Walker*

Introduction.................................................................................423

I. A Brief History of Desegregation Litigation......................427

II. Recent Developments in Desegregation Cases.................433

A. The Role of the Federal Government.................................433

B. The Role of Private Plaintiffs.............................................437

C. Desegregation and School Choice.....................................439

III. Why We Need a New Era of Desegregation.....................443

A. The Current Landscape of Education Reform ...................443

1. New Accountability.......................................................444

2. School Choice...............................................................446

a. Magnet Schools ........................................................447

b. Charter Schools........................................................448

c. School Vouchers.......................................................451

3. School Finance Reform................................................452

4. Themes in Current Education Reform Efforts..............455

B. A Role for Desegregation Cases in the Education

Reform Landscape..............................................................457

1. The Lingering Effects of Historic Discrimination........458

2. Employing Race-Conscious Remedies.........................461

3. Litigation as a Dialogic Tool .......................................463

IV. Conclusion.............................................................................466

Introduction

Desegregation is a term from a bygone era. Desegregation recalls the seminal 1954 supreme court decision in Brown v. Board of

Associate Professor of Law, University of South Carolina School of Law. B.A., Yale University. J.D., Harvard University. The author would like to thank Eboni Nelson, Susan Kuo, Angela Onuwachi-Willig, Lia Epperson, Elise Boddie, and the participants in the 2009 Lutie Lytle Conference for their contributions and comments on early ideas and drafts of this article. The author also thanks Rose Beth Grossman and Stephanie Marshall for their research assistance, and Vanessa Byars for her administrative assistance.

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Education¹ Desegregation recalls images of the Little Rock Nine, Thurgood Marshall standing triumphantly on the steps of the Supreme Court, and angry parents protesting busing in Boston.² For most observers, desegregation is a historical term, a term from the past.

Despite this common perception, nearly two hundred desegregation cases are still pending in federal district courts.³ Most of these cases were initiated in the 1960s and 1970s and have remained dormant for several decades, but there are early indications that traditional desegregation cases may be in a period of revival. For example, in 2010, in Walthall County, Mississippi, the Civil Rights Division of the United States Department of Justice (DOJ) successfully argued that the local school district was in violation of a 1970 desegregation order.⁴ The federal district court found that the school district maintained "segregative" practices that fostered a dual school system, allowing some schools and classrooms to remain racially identifiable as either white or African American.⁵ Additionally, in 2007, in Tangipahoa Parish, Louisiana, African-American plaintiffs alleged that the school district continued to violate the Fourteenth Amendment's Equal Protection Clause, in open defiance of the 1965 desegregation order, by failing to hire and promote African-American faculty and administrators.⁶ As a result,

1. 347 U.S. 483 (1954). See generally Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (Random House 2004) (1975) (providing a detailed history of the Brown litigation and its aftermath).

2. See, e.g., Carl L. Bankston III & Stephen J. Caldas, A Troubled Dream: The Promise

and Failure of School Desegregation in Louisiana 42 (2002) (describing white parents and schoolchildren overturning and burning buses intended to bring black schoolchildren to South Boston); Michael D. Davis & Hunter R. Clark, Thurgood Marshall: Warrior at the Bar, Rebel on the Bench 150-51 (1992) (displaying the famous picture of Marshall on the steps of the U.S. Supreme Court after his victory in Brown); John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom 492-93 (Peter Labella & Bob Greiner eds., 7th ed. 1994) (describing the desegregation of Central High School in Little Rock, Arkansas, under the protection of federal troops).

3. Genevieve Siegel-Hawley, The Integration Report (June 9, 2010), http://theintegrationreport.wordpress.com/2010/06/09/issue-26/.

4. Spencer S. Hsu, Mississippi County Schools Ordered to Comply with Desegregation Order, Wash. Post, Apr. 13, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/04/13/AR2010041302867.html. See infra Part II.A.

5. Hsu, supra note 4.

6. See infra Part II.B.

2012] NEW ERA FOR DESEGREGATION 425

the parties agreed to a desegregation plan that included the construction of new schools and the creation of new magnet programs.⁷ Finally, in Little Rock, Arkansas, the local school district is arguing that the State Board of Education is in violation of a 1989 settlement agreement in a desegregation case by allowing too many resources to be allocated to racially isolated charter schools.⁸

This Article argues that traditional desegregation cases, like the cases mentioned above, should be seen as one important tool in the continuing struggle by many parents, students, and civil rights advocates to achieve racial and socioeconomic integration in our public schools. While it is unlikely that any new desegregation cases will be filed, and the overwhelming majority of the approximately 16,000 school districts in the United States⁹ are not under desegregation orders, these orders are still powerful tools in the school districts where they remain. For decades, legal scholars and civil rights litigators have anticipated the end of desegregation, and most have begun to focus on other aspects of education reform, such as accountability, school choice, and school finance reform.¹⁰ But until the last school district is declared unitary, civil rights advocates should examine these cases and take a proactive approach to insuring that states and school districts have fulfilled every aspect of desegregation orders. A vigilant and proactive approach to the remaining desegregation cases can potentially influence racial

7. The Associated Press, Judge OKs Tangipahoa School Desegregation Plan, WWLTV.com (Mar. 5, 2010, 9:16 AM), http://www.wwltv.com/news/Judge-OKs-Tangipahoa-school-desegregation-plan-86581717.html.

8. Kelly Dudzik, Attorney Thinks Charter Schools Violate Desegregation Agreement, Fox16.com (July 24, 2009, 8:34 AM), http://www.fox16.com/news/story/Attorney-thinks-charter-schools-

violate/7xcJSeHFX0WZQgFFDW1LJw.cspx. See infra Part II.C.

9. James E. Ryan, The Supreme Court and Voluntary Integration, 121 Harv. L. Rev. 131, 145

(2007).

10. See id. at 132 (stating that racial integration has been off of the agenda of most school districts for several decades and that modern education reform efforts focus on battles over school funding, school choice, and improving student achievement); see also Kevin Brown, Race, Law and Education in the Post-Desegregation Era: Four Perspectives on Desegregation and Resegregation 6 (2005) (arguing that we have entered a Post-Desegregation Era due to resegregation, the termination of desegregation decrees, and limitations on the use of racial classification in student assignment); Michael Heise, Litigated Learning and the Limits of Law, 57 Vand. L. Rev. 2417, 2418 (2004) (arguing that emerging educational reform litigation focuses on student academic achievement and not race).

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integration and student achievement in both the directly affected school districts and the broader landscape of American schools.

In Part I of the Article, I provide an overview of the history of traditional desegregation cases. Traditional desegregation cases include those cases filed in the decades after Brown against states and local school districts to address violations of the Fourteenth Amendment's Equal Protection Clause. I trace the progress of desegregation cases from their high watermark in the late 1960s and early 1970s in which the Supreme Court strongly supported desegregation, to the Supreme Court's decision inMilliken v. Bradley ("Milliken i"),¹¹ which many scholars argue signaled the end of any meaningful desegregation.¹² Part I also highlights the trilogy of 1990s Supreme Court decisions that led to an era of resegregation in America's public schools.

Part II turns to recent activity in traditional desegregation cases. I highlight the three recent cases from Mississippi, Louisiana, and Arkansas as examples of the use of desegregation cases to combat racial isolation, support the hiring of minority teachers and administrators, argue for additional resources for impoverished schools,...