Termination of Desegregation Decrees and the Elusive Meaning of Unitary Status

• Publication year: 2021

81 Nebraska L. Rev. 283. Termination of Desegregation Decrees and the Elusive Meaning of Unitary Status

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Susan Poser(fn*)

Termination of Desegregation Decrees and the Elusive Meaning of Unitary Status

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 283
II. Exposition . . . . . . . . . . . . . . . . . . . . . . . . . . 291
A. Jenkins III . . . . . . . . . . . . . . . . . . . . . . . . 291
B. Overview of Desegregation Scholarship: Discretion,
Capacity, and Legitimacy . . . . . . . . . . . . . . . . . 295
III. The Evolution of Equity . . . . . . . . . . . . . . . . . . . . 300
A. English Equity . . . . . . . . . . . . . . . . . . . . . . . 302
B. American Equity . . . . . . . . . . . . . . . . . . . . . . 306
C. Equity and Desegregation . . . . . . . . . . . . . . . . . . 313
IV. Rights and Interests . . . . . . . . . . . . . . . . . . . . . 318
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 318
B. Hohfeld . . . . . . . . . . . . . . . . . . . . . . . . . . 326
C. Interest Theory of Rights . . . . . . . . . . . . . . . . . 333
D. Rights Theory Applied . . . . . . . . . . . . . . . . . . . 337
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 354

I. INTRODUCTION

Brown v. Board of Education (Brown I)(fn1) was decided almost a half century ago, but there has been renewed interest in desegregation jurisprudence in recent years.(fn2) In the 1990s, the Supreme Court de-

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cided a trilogy of cases, all of which dealt with standards for terminating desegregation decrees.(fn3) These cases purported to explicate the standards to be used by district courts in determining whether and to what extent a desegregation order could be terminated; yet, these standards continue to be difficult to interpret and apply. At the same time, members of the Supreme Court have shown increasing frustration with the length, complexity, and seemingly endless nature of these remedies.(fn4) This raises the possibility that the near half-century attempt to remedy the effects of de jure school segregation might come to an end because the Court has finally had enough, and not because of a consensus that the ongoing effects of segregation have been substantially eliminated.(fn5)

Currently, there are well over 100 school districts in the United States under court-ordered desegregation decrees.(fn6) The purpose of desegregation was clearly remedial when the Supreme Court first mandated it in 1954; yet, as this Article will argue, after its landmark decision in Brown v. Board of Education, the Court was never clear about what exactly was being remedied. As a result, there is no coherent theory to cover the current problem of figuring out when "unitary" status has been achieved and a district court can withdraw its supervision of a school district.(fn7) The notion of unitary status is now little more than an assertion, as opposed to a description of either a state of affairs that must be attained or a procedure for identifying that state of affairs. This means not only that district judges have little guidance, but also that litigants and potential litigants have little ability to predict how a district judge will rule on the issue of unitary status.8

Although the Supreme Court has insisted for nearly fifty years that the scope of the violation in desegregation cases must determine the scope of the remedy, it has not clearly delineated what the scope of

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that violation is. Is it racial isolation? Is it stigma? Is it the provision of unequal educational opportunity? Or is it, as some have argued, the opportunities lost without the networking support of a white community? (fn9) The Court's ambivalence about what harm desegregation was actually remedying doomed desegregation by exposing it to future claims of illegal affirmative action.(fn10) Put another way, if the Court cannot articulate the purpose of desegregation and what it is intended to remedy, then trial court judges do not have the necessary information to know when the remedy is achieved and termination is appropriate. Nor can they properly judge whether any particular program, whether court-ordered or voluntary, is properly remedial or still based on an illegal classification of race. As it stands now, the Supreme Court's affirmative action jurisprudence, and the presumption of invalidity that accompanies the application of strict scrutiny, tends to tilt the balance against desegregation programs. One way to approach this conundrum is to argue, as many have, that diversity is a compelling state interest.(fn11) Another way is to try to refine what we mean by remedial in the context of desegregation by more carefully and specifically articulating what exactly the relevant, remediable effects of segregation are or ought to be.(fn12) This Article adopts the latter approach.

There are two ways in which desegregation efforts are currently being challenged in the courts that raise this remedial conundrum. In some cases, either parents or school districts themselves petition the court for termination of existing court-ordered desegregation decrees on the grounds that the remedy has been completed and the district

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has achieved "unitary status."(fn13) In order to demonstrate unitary status, the petitioning party has to demonstrate that "the vestiges of [segregation] ha[ve] been eliminated to the extent practicable,"(fn14) and that the school board has demonstrated good faith compliance with the desegregation decree.(fn15) The primary issue in these cases is identifying whether any vestiges of segregation remain and whether a school district has achieved "unitary" status.(fn16)

In the other cases, plaintiffs claim that voluntary efforts to desegregate school districts-efforts which often have their origin in policies developed while the district was under a desegregation order and then continued after termination of the order-are unconstitutional because they involve the State in making classifications based on race. A number of these types of cases have been brought by children who were unable to get into the public schools of their choice, usually magnet or other special public schools, because of continuing desegregation policies in their school districts.(fn17) These cases have heralded the convergence of desegregation jurisprudence with affirmative action jurisprudence. (fn18) Because judges, following the Supreme Court's current standard for reviewing governmental use of racial classifications (in the absence of a court order), are required to apply strict scrutiny to a school district's use of race in student assignments, a district court reviewing a voluntary plan to desegregate a public school district must be persuaded that the racial classifications serve a compelling state interest. As a result, in the cases where there is no ongoing desegregation order, the courts have grappled with the question of

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whether diversity can qualify as a compelling state interest.(fn19) The courts which have addressed this in the context of elementary schools have mostly taken a discrete pass,(fn20) although a few courts have been receptive to the argument that diversity and racial balance are compelling state interests.(fn21)

The Court's failure to articulate a clear standard for terminating desegregation decrees has left each court hearing a unitary status claim to figure out for itself what a vestige of segregation is and whether it is still present in the school district. A recent example of this is Belk v. Charlotte-Mecklenburg Board of Education,(fn22) the Fourth Circuit's en banc review of Capacchione v. Charlotte-Mecklenburg School District,(fn23) which was the termination case that reopened the 1971 Swann case in which the Supreme Court for the first time approved busing as a remedy for segregation.(fn24) The plaintiff in Cappacchione was a girl of Hispanic and Caucasian origin who was denied admission to a magnet school on the basis of race. The magnet school was opened by the school district without seeking court approval and clearly used racial preferences, even quotas, in its admissions deci-

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sions.(fn25) The plaintiff claimed that because the magnet school was not approved by the court supervising the district's desegregation efforts, the magnet school's admissions program was outside of the then-operating desegregation decree, and thus violated her right to equal protection. Capacchione's challenge to the admissions program at the magnet school led to the reopening of the Swann case and the question of whether termination of the Swann order was required. Thus, Capacchione had two potential factual bases for her claim: that the admissions program was beyond the scope of existing orders and therefore subject to strict scrutiny because it was not remedial, or alternatively, that the district had achieved unitary status and any continuation of racial preferences in school assignments was therefore subject to strict scrutiny.

The district court addressed the plaintiff's claims by using what has come to be known as the Green factors. The Green factors are six areas that any desegregation order should address: student assignments, faculty, staff, transportation, extra-curricular activities, and facilities.(fn26) The Capacchione court's analysis of these factors centered on the question of racial balance (i.e., had racial balance been accomplished as to these factors). The question of how racial balance vindicated an interest previously violated by segregation was not addressed. The district court's analysis in Capacchione illustrates how, in the termination cases, as in the original desegregation cases, simplicity of the racial balance test still encourages courts to use it without explaining how it serves to restore the plaintiffs to their rightful position, even while admitting, as the Capacchione...