Introduction I. The Use of Race in School Assignment: A Policy Perspective II. Jurisprudential Limits to Race-Conscious Policies A. The Parents Involved Holding B. Fluctuating Agency Guidance C. Parents Involved in the Circuit Courts i. Fifth Circuit: Lewis v. Ascension Parish School Board ii. Third Circuit: Doe v. Lower Merion School District iii. Sixth Circuit: Spurlock v. Fox III. Permissible Race-Conscious Policies A. Examples of Permissible, Effective, Race-Conscious Strategies for Avoiding Racial Isolation i. Berkeley, California ii. Nashville, Tennessee iii. Montclair, New Jersey iv. Hillsborough County, Florida (Tampa) v. Jefferson County, Kentucky (Louisville) B. Lessons for School District Leaders Who Want to Integrate Schools Conclusion Appendix INTRODUCTION
Despite the dramatic demographic shifts in the overall population in recent decades, most American children still grow up in racially and socioeconomically isolated communities and face deep divisions across measures associated with class, race, income, and educational attainment. At a time when the United States is witnessing broadening wealth stratification (1) and polarization, (2) schools remain a lone forum for students with different backgrounds, abilities, and perspectives to learn from each other and prepare for a life of democratic participation. A separate and unequal education system does not engender an equitable society or a robust democracy.
In the face of compelling evidence that diverse and integrated schools benefit all children, (3) that school desegregation narrows the overall achievement gap between Black and White students, (4) and that "segregation is harmful for all students," (5) all the branches of the Federal Government--courts, agencies, and the legislature--have repeatedly blocked or discouraged local efforts to desegregate or integrate schools. (6) And while segregation by race often falls along school district lines or between public and private systems, (7) many school districts, particularly those in large metropolitan areas, remain or have become increasingly (8) racially segregated. (9) When segregation occurs within school districts, local leaders can choose to take action to pursue integration.
The Supreme Court's majority-less decision in Parents Involved in Community Schools v. Seattle School District has caused confusion and debate over whether race can be used explicitly in school assignment policies aimed at increasing school diversity. (11) And the position of the United States Department of Education (DOE) has vacillated among changing administrations over whether Justice Kennedy's concurrence in Parents Involved permits the use of race in school assignment plans. (12) But more recent circuit precedent (13) and the bold efforts of a handful of school districts (14) reveal a permissible and effective way to consciously use race to avoid segregation among schools. Meanwhile, most school district leaders, left with unclear directives and the threat of legal action, have avoided using race in school assignment policies altogether. (15)
Upon close examination of the opinions in Parents Involved, Justice Kennedy's concurrence explicitly permits general recognition of race when crafting school assignment policies, (16) and a majority of the justices recognized racial diversity in K-12 schools as a compelling state interest. (17) Their recognition is critical because diverse schools, classrooms, and experiences are essential for creating an equitable education system (18) and readying students for democratic participation. (19) Finding fair, equitable, and legally permissible ways to consider race in school assignment policies (20) remains necessary to achieve racially diverse schools in pursuit of a more robust democracy.
Because local leaders have historically exercised discretion over school assignment policies, (21) this Note argues that even though the era of federal civil rights enforcement has waned, (22) federal jurisprudence provides legally permissible opportunities for diverse school districts to implement effective policies for desegregating schools. (23) Namely, school districts can access neighborhood-level demographic data to inform race-conscious school choice or school zoning policies.
Part I of this Note provides a brief overview of the history and social science research related to school desegregation then defines terms to be relied upon. Part II outlines the Parents Involved holding, highlighting the points where a majority of the justices agreed. Part II also describes how the circuits and the DOE have read Parents Involved to apply race-conscious school assignment policies. Part III examines the policies of certain school districts that do use race explicitly and draws lessons from this strategy that other school districts should consider. This Note argues that effective race-conscious policies--like those in Berkeley, Nashville, Montclair, Tampa, and Louisville--remain legally permissible and should serve as a model for other metropolitan school districts to pursue their own voluntary efforts to combat racial segregation in schools.
The Use of Race in School Assignment: A Policy Perspective
This Part briefly overviews the history of race-based, government-enforced school segregation, and Civil Rights Era desegregation enforcement. Then, this Part reviews social science research related to school desegregation and describes flaws and injustices in the implementation of school desegregation in the past. Finally, this Part distinguishes the terms used in this Note.
When the Supreme Court decided the landmark case Brown v. Board of Education?* schools throughout the country were segregated by race due to deliberate and explicit government policies. (25) This was true in places--largely but not only in the South--that segregated children according to their racial classification. In cities in the North, school officials more commonly segregated students by drawing school zones in accordance with segregated housing patterns. (26)
Although Brown famously declared that "[sjeparate educational facilities are inherently unequal," (27) federal courts did not begin actively enforcing the holding until the 1960s. (28) Part of this was attributable to Brown ITs (29) vague and contradictory directive that court enforcement should move ahead "with all deliberate speed," (30) and to the federal government's general reticence to enforce desegregation before the passage of the Civil Rights Act of 1964. (31)
Following the Supreme Court's decision in Green v. County School Board, which established an "affirmative duty" on school districts to desegregate their schools by any means, (32) federal courts began to aggressively enforce Brown's holding. (33) But enforcement was generally limited to the South because of a distinction that the Court drew between what it called de facto and de jure segregation. (34) This distinction limited remedies to school districts that the Court determined had previously had school assignment policies explicitly based on students' individual races, as opposed to policies that targeted communities or exploited existing housing segregation. (35)
Keyes v. School District No. 1, (36) arguably the apogee of the Supreme Court's assertive role in school desegregation enforcement, extended court-ordered desegregation to regions outside the Southeast. As Justice Powell declared in his concurrence:
The focus of the school desegregation problem has now shifted from the South to the country as a whole. Unwilling and footdragging as the process was in most places, substantial progress toward achieving integration has been made in Souther n States. No comparable progress has been made in many nonsouthern cities with large minority populations primarily because of the de facto/de jure distinction nurtured by the courts and accepted complacently by many of the same voices which denounced the evils of segregated schools in the South. But if our national concern is for those who attend such schools, rather than for perpetuating a legalism rooted in history rather than present reality, we must recognize that the evil of operating separate schools is no less in Denver than in Atlanta. (37) In 1988, after two decades of race-conscious enforcement of Brown's holding, American schools were more desegregated than at any other point in history, (38) largely because of federal enforcement in the South. (39) Despite its limited enforcement power, the height of school desegregation in the United States corresponded with the narrowest overall Black-White achievement gap in our nation's history (40)--not because Black students need to be seated next to White students to achieve higher average test scores, rather because no one has been able to create a system to scale that equitably distributes resources to children of color in segregated schools. (41)
School desegregation is alone among education reforms for its track record reducing inequality in educational and student outcomes at a large scale. (42) As Sean F. Reardon, the author of a 2019 study comparing the effects of school segregation on racial disparities in academic achievement, observed:
It doesn't seem that we have any knowledge about how to create high-quality schools at scale under conditions of concentrated poverty ... [a]nd if we can't do that, then we have to do something about segregation. Otherwise we're consigning Black and Hispanic and low-income students to schools that we don't know how to make as good as other schools. The implication is that you have got to address segregation. (43) Reardon and his co-authors analyzed every school district in the country and failed to identify "a single ... district ... where Black and Hispanic students were learning apart from White students and performing well with test scores that weren't lagging behind those of White students." And "[i]n the cases where achievement gaps were...