1AC—Desegregation (V1)


Advantage 1 is Desegregation:

School segregation is rampant—failure to address this just lets racism win

Black, 6/6/17 --- Professor of Law, University of South Carolina (Derek, “Education in America Has Deep Flaws—and That's Why Racial Segregation Is on the Rise,”
https://theconversation.com/why-schools-still-cant-put-segregation-behind-them-78575, accessed on 6/13/17, JMP)
A federal district court judge has decided that Gardendale – a predominantly white city in the suburbs of Birmingham, Alabama – can move forward in its effort to secede from the school district that serves the larger county. The district Gardendale is leaving is 48 percent black and 44 percent white. The new district would be almost all white. The idea that a judge could allow this is unfathomable to most, but the case demonstrates in the most stark terms that school segregation is still with us. While racial segregation in U.S. schools plummeted between the late 1960s and 1980, it has steadily increased ever since – to the the point that schools are about as segregated today as they were 50 years ago.As a former school desegregation lawyer and now a scholar of educational inequality and law, I have both witnessed and researched an odd shift to a new kind of segregation that somehow seems socially acceptable. So long as it operates with some semblance of furthering educational quality or school choice, even a federal district court is willing to sanction it. While proponents of the secession claim they just want the best education for their children and opponents decry the secession as old-school racism, the truth is more complex: Race, education and school quality are inextricably intertwined.Rationalizing Gardendale’s segregation In some respects, Gardendale is no different from many other communities. Thirty-seven percent of our public schools are basically one-race schools – nearly all white or all minority. In New York, two out of three black students attend a school that is 90 to 100 percent minority. In many areas, this racial isolation has occurred gradually over time, and is often written off as the result of demographic shifts and private preferences that are beyond a school district’s control. The Gardendale parents argued their motivations were not about race at all, but just ensuring their kids had access to good schools. The evidence pointed in the other direction: In language rarely offered by modern courts, the judge found, at the heart of the secession, “a desire to control the racial demographics of [its] public schools” by “eliminat[ing]… black students [from] Gardendale schools.” Still, these findings were not enough to stop the secession. As in many other cases over the past two decades, the judge conceded to resegregation, speculating that if she stopped the move, innocent parties would suffer: Black students who stayed in Gardendale would be made to feel unwelcome and those legitimately seeking educational improvements would be stymied. Simply put, the judge could not find an upside to blocking secessionists whom she herself characterized as racially motivated. As such, the court held that Gardendale’s secession could move forward. Two of its elementary schools can secede now, while the remaining elementary and upper-level schools must do so gradually. The problem with conceding to segregation Unfortunately, there’s no middle ground in segregation cases. No matter what spin a court puts on it, allowing secessions like Gardendale’s hands racism a win.While it’s true that stopping the secession may come with a cost to members of that community who have done nothing wrong, our Constitution demands that public institutions comply with the law. That is the price of living in a democracy that prizes principles over outcomes. In this case, the constitutional principles are clear. In Brown v. Board of Education, the Supreme Court held that there is no such thing as separate but equal schools: Segregated schools are “inherently unequal.”Rather than stick to these principles, the judge in the Gardendale case seemingly tried to strike a bargain with segregation.As long as Gardendale appoints “at least one African-American resident” to its school board and does not do anything overtly racist moving forward, the court will allow the city to pursue its own agenda. The sordid roots of school quality – and inequality The ruling in Gardendale is a step toward reinforcing an unfortunate status quo in Alabama. Alabama is one of a handful of states that amended its state constitution in an attempt to avoid desegregation in the 1950s. The amendment gave parents the right to avoid sending their kids to integrated schools and made clear that the state was no longer obligated to fund public education. Alabama preferred an underfunded and optional educational system to an integrated one. Courts quickly struck down the discriminatory parts of the new constitution, but the poor state education system remained. Today, student achievement in Alabama ranks dead last – or near it – on every measure. Most communities don’t have the resources to do anything about it. Funding is relatively low – and unequal from district to district. Even after adjusting for variations in regional costs, a recent study shows that the overwhelming majority of schools in Alabama are funded at ten percent or more below the national average and another substantial chunk is thirty-three percent or more below the national average. Parents trapped in under-resourced schools understandably feel like they need to take action. But rather than demanding an effective and well-supported statewide system of public schools, parents with the means often feel compelled to isolate their children from the larger system that surrounds them. And while whites and blacks struggle over the future of Gardendale’s schools, the real culprits – the current state legislature and the segregationists who gutted public education in Alabama decades ago – go unchallenged. The path forward leads through equal public education The education system in Alabama, like in so many other states, is rigged against a large percentage of families and communities: Those with less money tend to get a worse education. Until these states reform their overall education funding systems, the inequalities and inadequacies that they produce will continue to fuel current racial motivations. The lawsuit in Gardendale was a poor vehicle for fixing Alabama’s education system: The state’s overall education system was not on trial. The only issue before the court was a racially motivated district line in one small community. But our small communities are connected to larger education systems. In my view, we cannot fix those systems by way of more individual choice, charters, vouchers or school district secessions. The fact is, educational funding is down across the board, when compared to a decade ago. If we want all students to have a decent shot at better education, we need to recommit to statewide systems of public education. Only then will our base fears and racial biases begin to fade into the background.

A retreat of DOJ enforcement has allowed a resurgence in segregation --- federal agencies have a comparative advantage in enforcing regulations and compelling local cooperation

Landsberg, 16 --- Professor Emeritus, Pacific McGeorge School of Law (Brian K., Fall 2016, Duke Journal of Constitutional Law & Public Policy, “LEE V. MACON COUNTY BOARD OF EDUCATION: THE POSSIBILITIES OF FEDERAL ENFORCEMENT OF EQUAL EDUCATIONAL OPPORTUNITY,” 12 Duke J. Const. Law & Pub. Pol'y 1, Lexis-Nexis Academic, JMP) *Note – HEW = United States Department of Health, Education and Welfare**

"There is nothing more difficult to plan, more doubtful of success, nor more dangerous than the creation of a new system." n1
"He that will not apply new remedies must expect new evils; for time is the greatest innovator." n2
During my twenty two years (1964 to 1986) as a trial and appellate lawyer in the Civil Rights Division of the United States Department of Justice ("the Division"), the Division treated school desegregation as a priority issue. Today, by contrast, school desegregation has almost disappeared as a goal, reflecting "the limited focus education receives as a civil rights issue these days." n3
School desegregation, once considered the key to equal educational opportunity, is embattled. From one side, critics say that desegregation has accomplished little, pointing out that 38% of black students attend schools that enroll very few white students. n4 Other critics challenge the very premise of desegregation, which, they claim, has destroyed a valuable institution in the African-American community, the all-black school. n5 Critics of Brown v. Board of Education n6 (Brown) have ranged from arguing it is poorly reasoned to suggesting it unrealistically sought more change than society would tolerate. n7 Revisionism is rampant. The Supreme Court has placed major obstacles in the way of race-based [*3] efforts to desegregate school systems and has adopted rules that allow school systems that had desegregated to resegregate their schools. n8
Fifty years ago, the federal government supported private plaintiffs in a landmark case that desegregated ninety-nine school systems in Alabama, Lee v. Macon County Board of Education (Lee). n9 The government's experience litigating Lee suggests that the U.S. Departments of Justice and of Education could play a key role in reviving the quest for school desegregation.These departments successfully supported private plaintiffs seeking school desegregation throughout Alabama. A similar partnership is needed today to reverse increased racial isolation in the public schools.
The core, foundational civil rights issues for African-Americans have been voting and education - both prerequisites to employment, housing, fair law enforcement, and political equality. Voting rights seem at a standstill, while the right to an equal education through desegregation has given way to acceptance of retrogression. n10 The civil rights community is mounting an impressive attack on erosion of voting rights, but has been much less aggressive when it comes to attacking racial isolation in our public schools.Civil rights supporters need to formulate a strategy for responding to the Supreme Court's retrograde school desegregation decisions, as they have with respect to the Court's decision rolling back the Voting Rights Act in Shelby County v. Holder. n11
The strategy must be long-term. It should include building a judicial record of the harms of racial isolation and the benefits of inclusion. It should also opportunistically address what we can expect each branch of the federal government to do to reduce racial isolation in the public schools. This paper concludes that the most promising course may be [*4] to rely on federal enforcement of regulations rather than on private suits to enforce the Constitution or statutes.
The Radical Republican Congress drew the Fourteenth Amendment in exceedingly vague terms: states may not deprive persons within their jurisdiction of "the equal protection of the laws." n12 While Section 5 of the Fourteenth Amendment arguably would have allowed Congress to help define the content of equal protection, its interpretive power today is limited. n13 Congress has deferred to the courts. Prior to Brown, Congress never challenged the separate but equal doctrine of Plessy v. Ferguson n14 (Plessy) through legislation. n15 Not until 1964, ten years after Brown, did Congress take any steps to enforce Brown. n16 As we will see, Brown led courts and the executive branch to require major restructuring of school systems in order to eliminate the racial dual school system. Congress continues to lack the institutional will to enact legislation to reduce racial isolation, so further change must come from the other branches of the federal government or from the state and local level.
School desegregation after Brown can be viewed as an example of Fourteenth Amendment federalism in action. The Fourteenth Amendment radically restructured the relationship between the federal and state governments by subjecting states to the due process and equal protection clauses. The Fourteenth Amendment also empowered each of the three branches of the federal government to enforce the equal protection clause. Section one of the Fourteenth Amendment implicitly imposes on the federal courts the duty to enforce, if a case is properly brought. n17 Section five explicitly tells Congress that it "shall have power to enforce, by appropriate legislation" the provisions of the Amendment. While the Amendment does not mention the role of the executive branch, Article II of the Constitution requires that the President "shall take care that the Laws be faithfully executed." n18
[*5] Youngstown Sheet & Tube Co v. Sawyer n19 suggested the simplistic message that the legislature makes policy, the court interprets the law, and the executive enforces it. n20 However, the equal protection clause of the Fourteenth Amendment was vague, implicitly inviting the three branches to interpret whether and how it applied to school segregation. However, the legislature made no policy and left it to the executive and courts to fill the resultant vacuum and used the Fourteenth Amendment as a sword, reversing the Madisonian norm that "the legislative authority necessarily predominates." n21 President Truman and his successors had policy reasons for wanting to end the official racial caste system. The Supreme Court took a pragmatic look at the facts and the underlying policy of the Fourteenth Amendment in reaching its conclusion that separate was never equal.
The story of Lee illustrates both the federalism and separation of powers aspects of school desegregation. It also illustrates the operation of general principles and specific consequences of those principles. In the Voting Rights Act of 1965, Congress had declared that African-Americans and the Justice Department would no longer have to litigate voting rights cases county by county. n22 In 1967, without encouragement from Congress, the federal district court in Lee v. Macon County Board of Education decreed that African-Americans and the Department of Justice would no longer have to litigate school desegregation cases school district by school district, and it placed on the state the burden of showing that the school systems in Alabama were following effective school desegregation plans. n23
The Macon County story from 1963 to 1972 unfolds in four chapters. Chapter One begins after over eighty percent of the county's population was freed from chattel slavery. The State of Alabama, abetted by the federal government, imposed a racial caste system designed to preserve the subordinate position of the newly-freed slaves. In Chapter Two, increasingly assertive Macon County African-Americans, this time with the aid of the federal courts and executive, overthrow the racial caste system, despite efforts of white state [*6] politicians such as George C. Wallace, to interfere with change. By Chapter Three, Governor Wallace has over-played his hand, and the federal executive, this time with Congressional backing, helps Anthony B. Lee (by then a college graduate) and his lawyer, Fred Gray, obtain a statewide school desegregation order. Finally, Chapter Four tells the story of the implementation of the federal court order and of Title VI of the Civil Rights Act of 1964. This article describes the first three chapters and part of the fourth and then draws lessons from them. It concludes with a call for a revival of the federal role in seeking to end the continued racial isolation found in many school systems throughout the United States.
I. The Racial Caste System, 1870-1954
For over 80 years, Macon County African-Americans endured separate but unequal education and poverty, and were deprived of the right to vote. However, the very institutions of separation laid the foundation for challenges to denials of equal protection of the laws.
In 1870, 17,727 people lived in Macon County, of whom 12,620, 71%, were classified as "colored." n24 A quarter of the county population lived in Tuskegee, which would become the site of the Tuskegee Institute eleven years later. Booker T. Washington raised money for this school for the newly freed slaves and their descendants, but the State of Alabama appropriated money for the school from the very start. n25 The pattern of repression of African-Americans in Macon County mirrored the rest of the deep South, but the Tuskegee Institute's presence brought to the county a cadre of highly educated and somewhat independent thinking African-Americans.
The federal government endorsed racial segregation. n26 This support, ironically, facilitated attacks on segregation, by contributing to the rise of an independent black middle class that was able to challenge the racial caste system. In 1923, the Veterans Administration (VA) opened a hospital for African-American veterans in Tuskegee that was soon staffed by black doctors, nurses, and staff, including Detroit Lee, the father of the named plaintiff in Lee. Congress also embraced the separate but equal doctrine in the Morrill Land Grant Act of 1890, [*7] extending to the former Confederate States the Morrill Act of 1862, and specifying that "the legislature of such State may propose and report to the Secretary of Agriculture a just and equitable division of the fund to be received under this subchapter between one college for white students and one institution for colored students ... ." n27 "Thus, six years prior to Plessy, federal law endorsed the principle of legal segregation as legitimate social policy with respect to land grant colleges." n28 Tuskegee Institute became one of the two African-American land grant colleges in Alabama. n29 The acceptance of racial segregation by all three branches led to one more dividend for Tuskegee in 1941, when the War Department established a training program there for black pilots, who became the famous "Tuskegee Airmen." n30 These three institutions - the Tuskegee Institute, the VA Hospital, and the Tuskegee Airmen - employed highly educated people who were not economically dependent on white employers or property owners. They became the nucleus that challenged the existing structure of white supremacy.
Macon County has been called "the guinea pig of race relations in Alabama." n31 White domination was cemented by ratification of Alabama's new constitution in 1901, which barred blacks from registering to vote as a practical matter. n32 Additional legislation, such as the implementation of a poll tax continued these efforts. 96,000 of the 100,000 African-Americans registered to vote in Alabama in 1900 had been purged from the rolls by 1910. n33 By the 1930s African-Americans in Macon County had become conscious of the importance of education and of the inequalities in the current education system. [*8] One Macon County parent explained why he was sending his child to school: "I'm tired of mortgaging my family. That's just the reason I'm trying to prepare my little girl." n34 A Macon County minister sermonized that Paul had improved himself by going to school. Although "Most of our boys and girls don't lak ter go ter school ... . after you git an education there is a chance fer you, you can git a position." n35 As early as 1936, the Southern Regional Conference of the N.A.A.C.P., meeting in Mobile, Alabama, resolved: "We insist that Negro children receive equal training and educational opportunity in the public school system and equal university opportunity." n36
In 1940, Macon County had a population of 27,654, of whom 4,946 were white and 22,708, or 82.4%, were black. n37 17,288 of blacks lived on rural farms, compared to 3,332 whites. n38 Tuskegee had a total population of 3,937, comprised of 1,093 whites and 2,844 blacks. n39 521 whites and 2,576 blacks lived in the other towns in Macon County, Shorter and Notasulga. n40 Despite the substantial numerical superiority of blacks in Macon County, whites had successfully denied them political power. Only 77 blacks were registered to vote. n41
Equally troubling was the dramatic difference in quality of education. White schools stayed open longer, 173 days, compared to 146 days for African-American schools, and featured half the students per teacher, 23.8 to 50.7. n42 In addition, in the 1938-39 year the school system spent 14.75 times more on white students than on black students in day school. n43 In that same year, there was no ratio for capital expenditures [*9] on black schools relative to white schools, because the district spent no money at all on improving or creating new black schools. n44 The district likewise spent no money on maintenance personnel, supplies or even fuel or water for black schools. n45
Further, more white students were able economically to attend school. In the 1938-39 school year, only 73.4% of black children were enrolled in school, and only 56.9% of those enrolled attended class on a daily basis. n46 That number declined sharply in high school, to a mere 7.8% of enrolled black students attending class on a daily basis. n47 In comparison, 43.8% of enrolled whites in high school attended class on a daily basis. n48 The disparity in both learning environment and the ability of black children to attend school led to important differences in education. Although only 2.3% of whites were illiterate, 22.7% of blacks were illiterate. n49
The organization that represented African American teachers in Alabama observed in 1939 that "Maintenance of separate schools makes it easy for [the Southern] states to deprive Negroes of an equitable share of public school funds ... . Thus, through disfranchisement and the separate school system, the South has excluded the Negro from consideration in the equitable distribution of [state] funds to all citizens of school age." n50 By the time of Brown, African Americans were dissatisfied with the quality of their children's education and ready to abandon the tradition of segregation. Most whites were not.
II. Initial Erosion of the Caste System, 1954-1964
After World War II, African-Americans increased their attacks on the racial caste system. The federal courts ruled favorably on some of those attacks. The federal executive supported attacks on segregated transportation, n51 racially restrictive covenants, n52 deprivation of the right [*10] to vote, n53 segregated higher education, n54 and, in Brown, the doctrine of separate but equal public schools. The Southern States took steps to protect the racial caste system, and Congress initially stayed on the sidelines. Macon County African-Americans battled both their exclusion from the political process and racial segregation of the public schools.
A. Establishing the Right to Vote in Macon County
The first priority of black activists was political equality, based on the theory that political participation would provide a path toward realizing other rights. n55 The Tuskegee Civic Association [TCA] and its predecessor, the Tuskegee Men's Club, encouraged Macon County African-Americans to register to vote; it sponsored litigation against discrimination in the registration process; n56 and its leader, Charles Gomillion, brought a landmark case challenging a gerrymander that excluded black registrants from voting in Tuskegee. n57 As one Macon County black activist put it, the TCA sought "to achieve a type of society in which all citizens [had] the opportunity to participate in societal affairs, and to benefit from and enjoy public services in keeping with their interests, abilities, and needs, without limitations or restrictions based on race, color, creed or national origin." n58
White leaders in Macon County pushed back. Responding to the TCA's efforts state probate Judge Varner, a leading local conservative, described the black vote as "getting to be a serious menace." n59 White passive resistance intensified. For extended periods voter registrars failed to meet, n60 attempted to conceal their location, met in inconvenient locations, and appeared unannounced in the countryside [*11] to discourage applications from rural blacks. n61 At times, the board of registrars lacked a quorum to meet. n62
For a brief period, a registrar appointed by populist governor Jim Folsom at the end of 1948, registered hundreds of black voters before the other members of the registration board stopped attending meetings, causing the board to once again become inactive. n63 Although ceasing registration temporarily halted the TCA, at this point too many blacks were registered for politicians to safely ignore. In 1950, a notoriously racist sheriff, Pat Evans, was replaced by Preston Hornsby, who was chosen by virtually every voting black, in the first black political victory in eighty years. n64
As a result of black voting power, some white politicians, such as Hornsby, became more responsive to the black community. Yet whites strongly resisted the idea of a black holding office, as demonstrated when Jessie Parkhurst Guzman, a black candidate for the Macon County School Board, ran and lost on a strictly racial vote in 1954. n65
State Representative Samuel Martin Englehardt, Jr, elected in 1950, quickly became the leading opponent of black equality in Macon County. n66 Englehardt was a talented politician who used his wry sense of humor and public events, such as dove hunts, to appeal to voters. n67 His family had deep ties to Macon County, where he owned a 6,500 acre plantation near Shorter. n68 Arguing that increased black rights would lead to black domination, he campaigned on a six-word platform: "I stand for white supremacy, segregation." n69 Upon election, Englehardt worked tirelessly to diminish and slow black voter registration in Macon County, sponsored a gerrymander to exclude most blacks from the city limits of Tuskegee, n70 and mounted an unsuccessful effort to dissolve Macon County and merge it with counties with more white population. n71
[*12] Until 1957, African-Americans in Macon County had relied on the limited resources of the TCA and NAACP to vindicate their rights under the Fourteenth and Fifteenth Amendments. The first civil rights act of the twentieth century, the Civil Rights Act of 1957, however, authorized the Attorney General to bring voting rights suits and also created the Civil Rights Commission to investigate and report on racial discrimination. The Commission held hearings in 1958 about discrimination in Macon County voter registration. In February 1959, in its first Alabama suit under the Act, the United States sued Alabama and the Macon County Board of Registrars, alleging racial discrimination in voter registration in Macon County. In March of 1961, U.S. District Judge Frank M. Johnson found that the registrars had discriminated against African-American applicants for voter registration. n72 As a result of the orders in the case, by 1963, three thousand black voters were registered, and although a further six thousand remained unregistered, the numbers of black and white voters were practically equal. n73 Thus, all three branches of the federal government cooperated to enforce the Fifteenth Amendment. The stage was set for an effort to desegregate the schools.
B. The Federal Executive Helps Desegregate Macon County Schools Despite Congress' Inaction
While no branch of the federal government had yet sought to enforce equal educational opportunity, by 1950, the Alabama NAACP had switched from seeking to equalize resources between black and white schools to seeking desegregation. It disavowed the "separate but equal doctrine," asserting "vigorous opposition to any and all forms of compulsory segregation on the basis of race ... ." n74 At the Alabama NAACP convention in Anniston that year, NAACP executive secretary Walter White decried the "Negro-white caste system" and called for an end to discrimination in the public schools, noting that "the most direct educational discrimination against the Negro can be found in the South's segregated school system." n75 The following year White spoke once again to the Alabama NAACP convention, stressing [*13] the cost of segregation. He urged the "enlightened South" to "persuade churches, trade unions, parent-teachers association and others to oppose the philosophy and propaganda of fear of the Byrneses, Byrds, Talmadges and Fielding Wrights that horrible things will occur if segregation is broken down." n76 The President of the Tuskegee NAACP branch argued in 1951 that "there can be no real elevation or equality in politics, in education, in housing, in transportation, or in the courts, until segregation is eliminated from our system and our thinking. That is our goal." n77
White segregationists in Macon County were at the fore of the fight against desegregation. In 1952, Martin Englehardt was concerned by the potential for school desegregation, so he had the Alabama Legislative Reference Service prepare a memorandum regarding options for maintaining segregation. n78 The memo was deeply pessimistic about the ability of the state to continue segregating schools, and suggested that the only effective measure would be to use state funds to operate private schools. n79
On the eve of Brown, the NAACP drafted questions for candidates in the May 1954 Democratic primary, including "will you be willing to abide by the decision of the United States Supreme Court and sponsor legislation designed to carry out the spirit of this decision in the pending school cases?" n80 Jim Folsom won the primary, and the NAACP drew up for presentation to the incoming administration "a simple statement as to what the Negro in Alabama expects" from it. The expectations included "spend no public funds for the erection of segregated public schools," but said nothing about abolishing racially segregated public schools. n81 After the decision in Brown, the Tuskegee Branch newsletter urged that new members join so that the NAACP could "put to full use, the instruments fashioned by our highest judiciary, and work incessantly toward a true emancipation of the Negro."
Because the NAACP and the TCA did not have resources to pursue both voter discrimination and school segregation, it was not until 1963 [*14] that Macon County African-Americans brought suit to desegregate their public schools. When their attorney, Fred Gray, filed Lee in January 1963, not a single black student attended public school in Alabama with a white student. However, suits against some bigger school districts - Birmingham, Mobile, and Huntsville - and the University of Alabama were approaching the stage when some desegregation orders were inevitable. n82 The wall of separation was first breached at the University of Alabama: n83 in the spring of 1963, when Governor Wallace symbolically barred Vivian Malone and James Hood from enrolling, after which they enrolled. n84
Through 1963, Congress had not acted to enforce Brown, so the executive branch had no statutory authority to sue for desegregation. n85 However, United States District Judge Frank M. Johnson, who had the Lee case, saw a need for a federal presence in race discrimination litigation and requested the United States to enter its appearance as an amicus curiae with all the rights of a party. n86 Assistant Attorney [*15] General for Civil Rights Burke Marshall agreed to do so. n87 In essence, the court and the executive were executing an end run around Congress' inaction.
Participation in Lee marked a transition of the role of the United States in school desegregation cases. While the United States had taken a substantive position in Brown I n88 and II n89 and in the recently decided case, Goss v. Board of Education n90, it had entered district court cases as an amicus only when beleaguered school systems or district courts had sought help in enforcing existing decrees. n91 In Lee, theUnited States would, as in the past, take positions on interference with court orders. In addition, however, it would now become involved in the substance of the relief and in monitoring compliance. Recognizing the resources the federal government had at its disposal, both the Department of Justice and Judge Johnson desired that the DOJ be "deep into the supervision of the school system" and relieve the private attorney of some of the burden of monitoring compliance. n92 According to plaintiff's attorney Fred Gray, Judge Johnson "wanted to be sure the U.S. government was a party to the action as the case progressed so that when he entered an order he could expect the U.S. government to enforce it." n93
Believing that orderly integration under their own control was better than the sort of detailed order issued to the board of registrars in a comparable voting discrimination case, the school board prepared to integrate the schools. n94 Despite George Wallace's bravado in his inauguration speech in January, the courts in the Birmingham, Mobile, Huntsville and Macon County cases all ordered desegregation to begin in the Fall 1963 semester. n95 In Macon County, the all-white Tuskegee high school was to be opened to applications from African-American [*16] students. The school board selected 13 of the 27 who applied. The school superintendent made plans for a smooth opening day, and Fred Gray and John Doar, deputy to Burke Marshall in the U.S. Civil Rights Division, met with the black students to prepare them for integration.
Wallace sent Alabama State Troopers to prevent school from opening as scheduled. The following week he again sent the troopers, this time to keep the African-American students from enrolling in white schools in Macon County, Birmingham and Mobile. Assistant Attorney General Marshall filed a suit against Wallace and others to enjoin interference with the school desegregation orders, and the five federal judges from the three judicial districts in Alabama convened as a court and enjoined the defendants from interfering with the court-ordered desegregation. n96 Although Congress had not specifically authorized the Attorney General to bring a suit such as this, the court in the Wallace case recognized the interest of the United States and did not even mention the lack of statutory authority. It ruled, "The plaintiff [the United States] is suffering and, unless an injunction is entered, will continue to suffer immediate and irreparable injury as a consequence of the impairment of deprivation of rights under the Constitution and laws of the United States." n97
Wallace, however, continued to interfere. He helped create a private school for the white students from Tuskegee High School and arranged to transport white students to the other two white public high schools in the county. n98 His state board of education ordered that Tuskegee High be closed and that its few remaining students (all Black) be assigned to the Black high school. n99 Fred Gray joined Wallace and state officials to the Lee case and, with partial support from the United States, sought relief against them. n100 The court ordered that the Black students who had been assigned to Tuskegee High School be reassigned to the two remaining White high schools. n101 The court, now comprised of three judges because Gray was attacking the constitutionality of [*17] Alabama's tuition grant statute, enjoined Wallace from further interference with school desegregation throughout Alabama and held the tuition grant statute unconstitutional. n102 Although asked, it declined to order statewide desegregation. Its order, though, set the stage for the next chapter.
III. The Executive Branch and the Road to Statewide Relief
A. The Federal Role Unfolds
Lee v. Macon County Board of Education began as a suit to desegregate only one school system, as was the general practice. Given the resistance to desegregation in the Deep South, this approach could have required thousands of individual school desegregation suits. Fred Gray's motion to join the state defendants and order statewide desegregation essentially asked the court to treat school desegregation on a wholesale basis, rather than retail. He had been inspired by the Governor's intransigent actions to ask for a bold remedy that no court had to that time awarded. n103 The remedy he requested would have shifted the burden of desegregation from plaintiffs in each school district to the state. While the court was not yet ready to impose this unprecedented form of relief, its decision enjoining the state officials from interfering with court-ordered school desegregation anywhere in Alabama laid the foundation for the novel and sweeping relief that eventually emerged in the case
The court announced its ruling eleven days after the effective date of the Civil Rights Act of 1964. n104 The legislation added nothing of immediate relevance to the issues before the court, and the court did not mention the new statute in its opinion. n105 Instead, recognizing that state officials have an affirmative duty to eliminate racial discrimination in the public schools, the court rested its ruling squarely on Brown, n106 the case involving Governor Faubus' interference with [*18] school desegregation in Little Rock, n107 and later Supreme Court and Fifth Circuit cases implementing Brown. n108
The court rendered its decision in a time of increasing racial turmoil. The "Mississippi Summer" that the Student Nonviolent Coordinating Committee (SNCC) was devoting to voter registration activities had exploded with the disappearance in June of three civil rights workers. n109 SNCC was also active in Selma, where black efforts to use public accommodations that the new Civil Rights Act had opened to them led to more lawless behavior by Sheriff Clark. n110 School openings in Alabama, however, occurred without major incident, with slight increases in desegregation both in 1964 and 1965. n111 By 1965 in Macon County, 32 African-Americans were attending formerly all-white schools and eight whites were attending formerly all-black schools . n112 Statewide, slightly over 1,000 African-American students in Alabama (.34% of Alabama's black students) were attending formerly all-white schools. n113
Preparing for the opening of schools, in 1964, DOJ attorney Jonathan Sutin contacted school authorities, civic leaders, law enforcement authorities, and black leaders. n114 Tuskegee High School was to be reopened, and it was unclear how many whites would show up; only a handful had signed up for the desegregated grades. n115 Rumors were flying in the white community about a flood of black students enrolling, but in fact only 14 in grades 9-11 were expected. n116 Sheriff Hornsby would use his limited force [two or three] to watch the school, but there was concern that the Chief of Police could not be trusted. n117 [*19] The school board hired a night watchman, who resigned after receiving threats; a second resigned, also citing to threats; a third was hired. n118 In spite of all this, 19 white teachers were expected at the K-12 Tuskegee High School. n119 It was reported that the all-white private school, Macon Academy, had over 300 enrollees and that Governor Wallace had donated $ 6,000 of his campaign funds to it. n120 Although not expecting trouble, the Attorney General alerted the President; as President Johnson's assistant, Lee White, reported to him, "the Justice Department appears to have taken the necessary proper precautions and either National Guard or federal troops can be called into action if needed." The Department had twenty U.S. Marshals in the area, and the Army made plans for a backup emergency force of 1800 Alabama National Guardsmen. n121
Sutin, with John Doar, returned to the county on the eve of school opening and attended a meeting of black parents and school children and a few white parents, including the sheriff and the local banker. By late October, Doar could report that white enrollment had slightly risen and that some students from the Academy had transferred back to Tuskegee High School because of concerns about educational quality, costs, and the atmosphere of hate at Macon Academy. The school had enough students to field an all-white football team. n122 By the second semester, white enrollment had stopped its rise, amid rumored pressure on 40 Macon Academy students not to transfer back to the integrated school. Still, 95 whites were attending the high school grades at Tuskegee High. n123
[*20] The question in 1963 had been whether the schools would desegregate. Neither the private plaintiffs nor the United States had suggested what that would mean. It was not clear what the African-American community wanted: was it access to the white school or a more systemic and complete desegregation. By 1965 the question was not whether, but how and how much.
During the ten years that had elapsed since Brown the Supreme Court had provided little guidance on the "how" and "how much" questions. The Southern states had adopted so-called pupil placement laws, based on the premise that "somebody must enroll the pupils in schools. They cannot enroll themselves; and we can think of no one better qualified to undertake the task than the officials of the schools and the school boards having the schools in charge." n124
The Alabama law required the school authorities to consider a long list of criteria in making student assignments. Among them were "the psychological qualification of the pupil for the type of teaching and association involved," "the possibility or threat of friction or disorder among pupils or others," and "the maintenance or severance of established social and psychological relationships with other pupils and with teachers." n125 Implicitly, these criteria preferred assigning black students to black schools and white students to white schools.
The question the school desegregation cases presented to the Department of Justice was whether to simply apply the Supreme Court cases allowing the use of pupil placement plans and deliberate speed or to argue in favor of more robust relief that would completely desegregate the school system. n126 As a law enforcement agency, not a civil rights organization, what should guide the Department in making that decision: the rather vague Supreme Court rulings or some vision of a desired final result? This question was not yet a burning one, as the NAACP Legal Defense Fund, the main civil rights organization litigating school desegregation claims, had been content to settle initially for the enrollment of a few African-Americans in formerly white schools. n127
[*21] The Macon County school board had proposed a desegregation plan in 1964 under which desegregation would not be complete until the 1969-70 school year. Moreover, desegregation would be accomplished by allowing students to transfer schools, rather than by non-racial initial assignments. The court approved only the proposal for 1964-65. n128
In April 1965, Sutin and Fred Gray had another desegregation case before Judge Johnson. After the hearing, the three of them returned to the Judge's chambers and discussed Macon County. Judge Johnson asked Sutin to check on the plans for next year. Sutin did so and returned to report to Judge Johnson that the school board proposed to add only the second grade to the list of desegregated grades. Judge Johnson and Sutin agreed that that was too slow, and the judge directed Sutin to prepare a plan desegregating three more grades in the fall and to cover all grades in 1966-67. n129 Judge Johnson's proactive stance included asking DOJ to investigate the all-white Macon Academy. n130 In May 1966 the school district began distributing free choice forms.
By June 1965, the Fifth Circuit Court of Appeals answered the question of when desegregation should be completed. Judge Wisdom wrote for the court:
The time has come for foot-dragging public school boards to move with celerity toward desegregation. Since May 17, 1954, public school boards throughout the country have known that they must desegregate their schools. And as the law moved with rising tempo to meet changing conditions, school boards might have foreseen that further delays would pile up rather than spread their nettlesome problems. This Court has urged school authorities to grasp the nettle now. We have put them on notice that, "The rule has become: the later the start, the shorter the time allowed for transition.' n131
The court also recognized and gave deference to a new player that had entered the picture - the United States Department of Health, Education and Welfare (HEW) (subsequently split into two departments: the Department of Education and the Department of Health and Human Services). HEW administered federal aid to education programs, which became a significant source of revenue for [*22] local school boards when Congress passed the Elementary and Secondary Education Act of 1965. n132 Title VI of the Civil Rights Act of 1964 proscribed federal agencies from extending federal financial assistance to programs or activities that discriminated on account of race. HEW had issued its first set of Guidelines for Desegregation in April 1965. n133 The court said, "There should be a close correlation ... between the judiciary's standards in enforcing the national policy requiring desegregation of public schools and the executive department's standards in administering this policy." n134
The court adopted HEW's 1967 deadline for completion of school desegregation. n135 While the court did not address the content of the desegregation plan, it had set a precedent for looking to HEW on matters of educational policy and implementation, directing that "As to details of the plan, the Board should be guided by the [Office of Education Title VI Guidelines]." n136 Because Macon County schools were operating under a court ordered desegregation plan, they did not have to separately show HEW that their desegregation plan met HEW requirements. However, the court, following the Fifth Circuit's decisions in Singleton, ordered the school system to adopt a "freedom of choice" plan, under which all students, in all grades, would choose the school they wished to attend. The order was not confined, however, to student desegregation. n137 It also required some faculty desegregation, desegregation of student activities, closing of some unequal facilities and equalization of others, and "remedial educational programs to eliminate the effects of past discrimination ... ." n138
By the summer of 1966 Charles Gomillion was a member of the Macon County School Board, n139 and the Macon County school superintendent was struggling with faculty desegregation, with some teachers resisting assignment to schools traditionally of another race. However, at least one or two black teachers would be assigned to white [*23] schools. The superintendent also expressed concern that over 250 black students and 192 white students had chosen Tuskegee High School; if enrollment were over 60% black, he predicted, the whites would flee. n140
Two years after the first African-American students enrolled in white public schools in Alabama there were signs that resistance to desegregation was weakening. At a meeting of the Alabama Association of Secondary School Principals, a panel of speakers from desegregated districts advised "that integration can be orderly and not detrimental to the school program if enough planning is done beforehand." n141 In August, Auburn University sponsored a conference of school board members and school superintendents to discuss desegregation. The keynote speaker, Atlanta school superintendent John Letson, observed that there was no longer a question whether the schools would be integrated and that "the fear of this problem is much greater than the reality." n142 He added, "students are students," regardless of their race. n143 The Birmingham News editorialized that "the only sensible course is to insure that transition [to desegregation] is handled with a minimum of disruption to the education of all young people, both white and Negro." n144 A common theme at the conference was that "We are not here to discuss whether to desegregate but how to desegregate." n145 School opening in 1965 was relatively peaceful compared to the prior two years. However, more storm clouds were gathering.
B. Governor Wallace's Interference With Federal Enforcement of the Civil Rights Act Leads to A Hearing on Statewide Relief
Even before the Civil Rights Act of 1964 passed, Lee White, Associate Special Counsel to President Johnson, had urged that there be "prompt and coordinated action" by agencies to assure compliance by school districts. n146 HEW's first step under Title VI was to adopt a [*24] regulation in December 1964 that required state and local school authorities to sign an assurance that they would not discriminate based on race as a prerequisite to federal assistance. Rather than halt funding of Southern school systems, most of which were still racially segregated, the regulation allowed continued funding of school systems that were implementing a school desegregation plan HEW deemed "is adequate to accomplish the purposes of the Act and" the regulation under the Act. n147 But the SNCC opined that the regulation and a three page set of instructions from HEW to school systems "were at best sketchy and at worst so vague as to render them absolutely meaningless and ineffective." n148
The requirement that recipients sign the assurance triggered a confrontation between Alabama's Governor Wallace and State Superintendent Austin Meadows and HEW. n149 A month after the regulation was published, Meadows noted that Alabama schools stood to lose over $ 32 million in federal funds if it did not comply: "We are damned if we sign, but we are twice damned if we don't [because they could both lose federal money and be sued by DOJ under Title IV of the new Act]." n150 He recounted the gains in black enrollment, teachers' salaries, new black trade schools, and other advances, and then closed by asking: "will all of this be destroyed by outsiders who either do not understand or do not care enough for either race in Alabama?" n151
The stakes for local school systems dramatically increased with the passage of Title I of the Elementary and Secondary Education Act of 1965, a key element of President Johnson's War on Poverty. n152 Title I for the first time infused large sums of federal money into local schools, primarily to improve educational opportunities of low income students. Alabama schools were to receive $ 34.6 million. n153 Title I would often benefit the same students that Title VI of the Civil Rights Act of 1964 [*25] was designed to protect. Yet there was a built in tension between the two laws, since the primary statutory remedy for a violation of Title VI was termination of the financial assistance. After initially publishing regulations under Title VI, HEW began requiring school systems to submit desegregation plans to show that they were in compliance. n154 By April 1965 HEW had received over 500 plans that it deemed inadequate. After discussion with DOJ, HEW adopted guidelines that explained what would be deemed adequate, in hopes that this would eliminate the need to evaluate plans one by one. n155 By the summer of 1965 HEW was geared up to enforce Title VI against school systems, requiring them to sign assurances that they would not discriminate based on race. n156 In July Vice President Humphrey warned President Johnson of a large backlog of school desegregation plans that had been submitted to HEW but not yet processed, due to lack of resources. Commencing in the fall, HEW provided the President with weekly reports on the status of compliance. n157
The question became how to ensure compliance with Title VI and continue funding under Title I. HEW issued its first set of "Guidelines" explaining its expectations for school desegregation. n158 Governor Wallace found administrative enforcement, backed by legislation, no more palatable than judicial enforcement . He attended a meeting of Southern Governors, who issued a statement complaining that the Guidelines were confusing, contradictory, and "so far reaching as to jeopardize the future of public education in many school districts throughout the United States." n159 On June 23 the United States Court of Appeals for the Fifth Circuit not only held the Guidelines lawful, but said that courts should follow the Guidelines in fashioning school desegregation relief. n160 The next day the Alabama legislature adopted a resolution embracing the Governors' statement and recommending [*26] that school systems defer compliance with the Guidelines, pending court challenges to them. n161
By summer 1965, Governor Wallace and State Superintendent Meadows had escalated the volume and scope of their attacks. Wallace exhorted school systems that had submitted plans to HEW describing how they would desegregate to "reconsider your action in the submission of your compliance plan." n162 In 1966, Wallace called for a special session of the legislature to declare HEW's 1966 Guidelines unconstitutional. n163 Before this call, several school systems had declined to comply with the Guidelines until, as one superintendent put it, "Governor Wallace says so." n164
Although both houses of the Alabama Legislature had passed resolutions in August urging school officials to resist the illegal Guidelines, n165 Wallace wanted the legislature to declare the HEW guidelines null and void and to promise to appropriate money to replace any federal money that school systems might lose by refusing to follow the guidelines. The legislature promptly enacted the law that Wallace had asked for. n166 Wallace then threatened to use Alabama State Troopers to stop black teachers from teaching in white schools in Tuscaloosa County. Several school systems refused to follow the Guidelines because of the new Alabama law.
In response to Wallace's actions, private plaintiffs filed a bold and sweeping motion in September to hold him in contempt for his actions or, in the alternative, to require schools be desegregated. n167 The court denied the plaintiffs' contempt motion, but set the motion for statewide desegregation for hearing on November 30, 1966. n168
[*27] The day after plaintiffs filed their motion Judge Johnson wrote to John Doar asking that he "make known, as early as possible, the position of the United States on this matter." n169 Although Doar sent no formal answer, within two weeks he had mobilized a large trial team, under the supervision of one of his top assistants, St. John Barrett, the Division's most experienced litigator. n170 In a meeting the following week, Doar spoke with staff about the need for complete and full desegregation of schools in Alabama and about some of the difficulties he saw. He said that desegregation would have to comply with the latest rulings of the appellate courts and should be as uniform as possible. And he worried whether the court would be able to enforce compliance. n171
C. The Federal Government's Expanded Role and the Proceedings Leading to Statewide Relief
At the end of September the court set the statewide desegregation motion for hearing on November 30, and although DOJ had not yet taken a position in the case, John Doar deployed a large trial team to delve more deeply and explore the extent of the State of Alabama's complicity in school segregation. No court had yet issued statewide relief in a school desegregation case, and it seemed prudent to present proof supporting the liability of the state officials. The nature of the state control might also prove useful in fashioning relief. Although the broad outlines of the extent to which the state officials had interfered with school desegregation and the extent of their legal authority over local school districts may have been known, the CRD opted to conduct extensive discovery regarding the state's role in school construction, assignment of faculty and staff, and transportation, always favoring racial segregation. The trial team, inspected Alabama Department of Education files, took depositions of school superintendents and divided up the analysis of the information.
In just six weeks the trial team took depositions of seven state officials and 38 local school superintendents, and inspected records at [*28] state and local levels.. n172 Private plaintiffs participated in some of this discovery, but did not have the resources to do so in full.
A respectable argument could have been made that since the state had required the creation of racially segregated school systems the state had an affirmative obligation to dismantle them. After all, of 294,737 African-American children in Alabama public schools, only 1,009 attended school with whites. n173 The proof in the case showed much deeper state complicity in school segregation. A few examples make the point.
The Alabama Department of Education, upon request from local school systems, conducted periodic school surveys of most school systems in the state, inspecting school sites and buildings and transportation systems. The Department reports on the surveys make recommendations on future use of school sites and buildings. n174 CRD exhibits graphically showed how state school surveys, ostensibly undertaken to improve education in the surveyed school systems, perpetuated the racially dual school system. Two government exhibits contrasted the segregative recommendations for school use in Calhoun County with the more compact and desegregated alternatives that were available. As the court concluded, "Such a method of consolidation was for no purpose other than to perpetuate segregation of the races." n175 The surveys recommended school construction separately for each race and recommended segregated transportation routes for students.
[SEE FIGURE IN ORIGINAL] [*31] The Governor and State Superintendent used extraordinary measures to carry out "the public policy of the State that Negro teachers not teach white children." n176 The statistics confirmed the policy: of over 28,000 teachers in the State, only 76 were teaching in schools of the other race. n177
The state defendants' deliberate interference with school desegregation was ubiquitous, constant, and both general and targeted, and it began even before the Supreme Court's decision in Brown. n178 In 1953 the Alabama Legislature appointed a committee to prepare legislation in the event that the Court's decision "destroys or impairs the principle of separation of the races in the public schools of this State." n179 In 1956 the Legislature declared the Brown decision null and void. n180 And, of course, the Governor deployed state police to stop desegregation in 1963, as described earlier. These early actions serve as backdrop to the state defendants' continued interference with school desegregation after the 1964 order in Lee enjoined them from further interference with school desegregation.
The trial began with Fred Gray, representing Anthony Lee and his co-plaintiffs, questioning Austin Meadows. The court's 1964 order had not only enjoined the state defendants from interference, but had also ordered them to use their authority "to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system." n181 Yet the records of the State Department of Education revealed no efforts to eliminate racial discrimination. This led to the following colloquy between Gray and Meadows:
Q. Can you relate to this court or refer to this court any written document in your office or release of any sort that you have sent to City and County Boards of Education in which you encouraged or promoted the elimination of segregated school systems in this State?
A. No. I approach it from nondiscrimination viewpoint. n182
Meadows' defense was that he had been ordered to encourage the elimination of racial discrimination but not racial segregation. n183
Statistics suggested that the efforts of Wallace and Meadows largely succeeded in fending off desegregation. Alabama, with only 2.4% of its black students attending school with whites, had less desegregation than any other Southern state, less even than Mississippi. n184 Forty five Alabama school districts had neither a court ordered desegregation plan nor a plan approved by HEW.
In short, the evidence established that the state officials had not only failed to promote desegregation of the schools, but had actively promoted segregation and had interfered with those school systems that were willing to desegregate. The question then became how to fashion relief against the state officials.
CRD considered asking the court to appoint a special master to take over the desegregation responsibilities of the State Superintendent of Schools, n185 or order the State Superintendent "to require as a prerequisite to payment of state money that the recipient school board provide education on a desegregated, non-racial basis." n186 While supporting complete and full desegregation of Alabama schools, John Doar worried about how a court could effectively desegregate a disparate group of urban and rural school districts.
The court issued its decision on March 22, 1967. The court's lengthy opinion develops the facts to conclude:
Not only have these defendants, through their control and influence over the local school boards, flouted every effort to make the Fourteenth Amendment a meaningful reality to Negro school children in Alabama; they have apparently dedicated themselves and ... have committed the powers and resources of their offices to the continuation of a dual school system such as that condemned by [*33] Brown v. Board of Education ... . As a result of such efforts ... today only a very small percentage of students in Alabama are enrolled in desegregated schools. n187
The court noted that the defendants' segregative activities had infected virtually every aspect of public education and that, accordingly, the remedy "must be designed to reach the limits of the defendants' activities in these several areas and must be designed to require the defendants to ... disestablish" the racial dual system in school systems covered by the decree. n188 The court somewhat optimistically suggested that once the state coercion to resist desegregation was removed the local school systems would comply with orders from the State Superintendent to comply with the uniform state plan, and it rejected the defense argument that these school systems were indispensable parties.
IV. Aftermath: the Reponse to and Implementation of the Statewide Decree.
Although meeting resistance from the Governor and some school systems, the decree led to significant progress in desegregating Alabama's schools. DOJ and HEW played a key role in developing desegregation guidelines and enforcing the court's order, and HEW's unique role as a funder and enforcer led to a confrontation between local school systems and the government.
Governor Lurleen Wallace declared the decree created "an emergency which threatens our state," "with which compliance is a physical impossibility." Governor Wallace then asked the legislature to place in the hands of the Governor "all powers heretofore vested ... in the State Superintendent of Education." She also asked the legislature to issue a cease and desist order to the judges handling Lee, "advising them that their actions are beyond the police power of the State of Alabama." n189 All that came of her speech, however, were stay motions in the trial court Court and an unsuccessful appeal to the Supreme Court. n190
[*34] By April, only five school systems failed to present compliant plans. n191 The court added those systems as defendants in the case, thus expanding the reach of the District Court for the Middle District of Alabama to the other two federal judicial districts. n192 By late July the court noted that 98 of the 99 school systems listed in the March decree had adopted plans that complied with the decree. n193
Alabama school systems listed in the decree confronted differing requirements under Title VI and under the decree. Among other differences, Title VI required them to satisfy HEW that they were not discriminating; the decree required the State Superintendent to make this determination. n194 The school districts were not parties to the case, so the question became how they were to reconcile these differences. While the regulation and guidelines made sense in the abstract, the question was how they should apply in the statewide order.
The issue came to a head in the summer of 1967. The Lanett City school system consisted of two schools, a white school enrolling 1309 students and a black school enrolling 606 students. It adopted a freedom of choice plan in 1966. n195 Free choice would lead to minimal desegregation in the fall of 1967: 6 black students to the white school and 5 whites to the black school. n196 However, the plan complied with the standards established by the order in Lee. Lanett moved to enjoin HEW from cutting off its federal funding. The Court held that because Lanett had agreed to comply with the Lee order, HEW could not cut off funds based on non-compliance with the Guidelines. HEW should have first brought to the Court's attention its findings and views. It was up to the Court, not HEW, to make a final determination whether Lanett was in compliance. The Court granted the motion to enjoin HEW, noting that rather than terminating funds, HEW should bring non-compliance to the Court's attention. n197
[*35] DOJ and HEW began jointly reviewing school system compliance with the court order and not the HEW guidelines. n198 Survey teams created reports for HEW and HEW would then write letters to the systems with desegregation deficiencies under the court order and the steps needed to conform to the court order. n199
As the process continued, Dr. Stone, the state superintendent became more involved. n200 Particularly after Dr. Stone reported that a county superintendent entered his office with a non-compliance letter from HEW that he had not seen before, HEW began sending Dr. Stone its communications with local superintendents. n201 Soon, in the name of efficiency, the process was revised to directly provide Dr. Stone with the letters stemming from field surveys by HEW. n202
When school opened in the Fall of 1967 the percentage of black students in Alabama enrolled in white schools had increased from 2.4% to 6.3% and 871teachers were teaching in faculties in which their race was in the minority. While far from full desegregation, Alabama had come a long way from George Wallace's inaugural promise of "segregation forever." After the Supreme Court's decision in Green v. County School Board in 1968, holding that school desegregation should lead to no white schools or black schools but just schools, n203 the court in Lee necessarily turned to more individualized examination of each school system, to completely eradicate the dual school system. DOJ and HEW worked closely together, with HEW experts drafting plans showing how to maximize desegregation in the school district and DOJ presenting the plans to the court. The result was that, while some one-race schools remained, the schools of Alabama became among the most racially integrated in the country. n204 The Lee case lingered on. There [*36] were more efforts of Alabama to thwart desegregation legislatively. Second generation issues of in-school discrimination, discrimination by athletic leagues, and discrimination against black faculty and staff generated more litigation. Eventually the individual school systems were joined as defendants and sometime later their cases were sent to the judicial district where they were located.

Desegregation is best way to narrow the achievement gap –

Theoharis 15 – PHD and a chair in the School of Education at Syracuse
(George, 10/23/15, “‘Forced busing’ didn’t fail. Desegregation is the best way to improve our schools.”, https://www.washingtonpost.com/posteverything/wp/2015/10/23/forced-busing-didnt-fail-desegregation-is-the-best-way-to-improve-our-schools/?utm_term=.99e5c334fa60, MW)
Since the Reagan administration’s “A Nation at Risk” report pronounced that schools across the country were failing, every president has touted a new plan to close the racial academic achievement gap: President Obama installed Race to the Top; George W. Bush had No Child Left Behind; and Clinton pushed Goals 2000. The nation has commissioned studies, held conferences and engaged in endless public lamentation over how to get poor students and children of color to achieve at the level of wealthy white students — as if how to close this opportunity gap was a mystery. But we forget that we’ve done it before. Racial achievement gaps were narrowest at the height of school integration.U.S. schools have become more segregated since 1990, and students in major metropolitan areas have been most severely divided by race and income, according to the University of California at Los Angeles’s Civil Rights Project. Racially homogenous neighborhoods that resulted from historic housing practices such as red-lining have driven school segregation. The problem is worst in the Northeast — the region that, in many ways, never desegregated — where students face some of the largest academic achievement gaps: in Connecticut, Maryland, Massachusetts and the District of Columbia. More than 60 years after Brown v. Board of Education, federal education policies still implicitly accept the myth of “separate but equal,” by attempting to improve student outcomes without integrating schools. Policymakers have tried creating national standards, encouraging charter schools, implementing high-stakes teacher evaluations and tying testing to school sanctions and funding. These efforts sought to make separate schools better but not less segregated. Ending achievement and opportunity gaps requires implementing a variety of desegregation methods – busing, magnet schools, or merging school districts, for instance – to create a more just public education system that successfully educates all children. Public radio’s “This American Life” reminded us of this reality in a two-part report this summer, called “The Problem We All Live With.” The program noted that, despite declarations that busing to desegregate schools failed in the 1970s and 1980s, that era actually saw significant improvement in educational equity. When the National Assessment of Educational Progress began in the early 1970s, there was a 53-point gap in reading scores between black and white 17-year-olds. That chasm narrowed to 20 points by 1988. During that time, every region of the country except the Northeast saw steady gains in school integration. In the South in 1968, 78 percent of black children attended schools with almost exclusively minority students; by 1988, only 24 percent did. In the West during that period, the figure declined from 51 percent to 29 percent. But since 1988, when education policy shifted away from desegregation efforts, the reading test score gap has grown — to 26 points in 2012 — with segregated schooling increasing in every region of the country. Research has shown that integration is a critical factor in narrowing the achievement gap. In a 2010 research review, Harvard University’s Susan Eaton noted that racial segregation in schools has such a severe impact on the test score-gap that it outweighs the positive effects of a higher family income for minority students. Further, a 2010 study of students’ improvements in math found that the level of integration was the only school characteristic (vs. safety and community commitment to math) that significantly affected students’ learning growth. In an analysis of the landmark 1966 “Coleman Report,” researchers Geoffrey Borman and Maritza Dowling determined that both the racial and socioeconomic makeups of a school are 1¾-times more important in determining a student’s educational outcomes than the student’s own race, ethnicity or social class. But we continue to think about segregation as a problem of the past, ignoring its growing presence in schools today. Desegregating schools has become a political third rail, even though it is an essential solution to one of our nation’s most persistent problems. This month, Education Secretary Arne Duncan announced he would step down in December and his deputy, John King, would replace him. King, during his tenure as New York state’s education commissioner, visited both school districts mentioned above to advance the national Race to the Top agenda, but he never acknowledged the increasing school segregation apparent in the region. In 1989, Syracuse city schools were about 60 percent white, and just 20 percent of black and Latino students attended predominately minority schools. Today, the district is 28 percent white, while 55 percent of Latino students and 75 percent of black students attend predominately minority schools. Racial and economic segregation affects schools in various ways. Federal and state policies that impose sanctions on poor-performing schoolsstate takeovers and forced replacement of school leaders, for example — often make matters worse. For example, Westside Academy , the Syracuse middle school where no students passed the state eighth-grade math assessment, has has had multiple principals and saw 44-percent teacher turnover in the 2012-2013 school year. About a decade ago, the elementary schools that feed into Westside Academy and Wellwood Middle School adopted the same math curriculum program, touted as one of the best standards-based elementary programs available. As is typical, both districts struggled to implement the new curriculum initially. But a decade later, the schools in Wellwood’s district are still using it, with teachers becoming more skilled and comfortable with the new way to teach math. The schools in Westside’s district, however, changed their math program at least two more times, leaving teachers, students, and families in a constant state of churn and undoubtedly affecting student learning and test scores. In this era of accountability, this instability is not forced upon white, upper-middle class families. While much has been said about the failure of busing, it’s time to move beyond this myth. In one of the most famous examples of court-ordered desegregation, Boston began busing students between white and black neighborhoods in 1974, sparking violent white protests and boycotts by white students. White families fled to the suburbs. Supporting neighborhood schools and opposing school bus rides became rhetoric to fight desegregation without overtly racist language. But as black activists in Boston noted at the time, “It’s not the bus, it’s us.” Before the court order, nearly 90 percent of high school students rode a bus to school without protest. Today, most children get on a school bus to attend a segregated school. Busing ended because of a combination of white protest, media that overemphasized resistance, and the lack of systematic collection to judge the impact of desegregation. So we need to be sober about our history: Busing didn’t fail; the nation’s resolve and commitment to equal and excellent desegregated schools did. Busing is not the only way to desegregate our schools. We can unify school districts so they encompass racially and economically diverse neighborhoods. The countywide district centered in Raleigh, for instance, has been successful in integrating schools and achieving academic success, in contrast to the 18 schools districts across the metropolitan Syracuse area. Shaping districts like pie pieces, so they cut across urban, suburban and even rural spaces, could have the same effect. Creating more open-enrollment magnet schools would also bring families of various races and incomes into well-funded and themed schools. For existing public schools, we could merge two neighborhood campuses in segregated communities, so they attend one neighborhood school together from kindergarten through second grade and the other from third through fifth grades. Or we can incentivize school districts to take action, imposing segregation and providing financial resources to districts with aggressive desegregation plans. Certainly, none of these approaches is easy or perfect, and desegregation alone is not a magic bullet to end the achievement and opportunity gaps. Even integrated schools face racial gaps. Many black and Latino kids end up in lower academic tracks and white parents protect exclusive opportunities for their kids. Still, knowing the benefits of integrated learning environments, we can’t continue to ignore the growing hold segregation has on our schools.We’ve heard soaring words from Duncan and Obama touting education as the route to a better life, saying it is a moral imperative that we work tirelessly to improve the education of our most vulnerable children. But rhetoric is no match for our failure of will to change the disparate realities of our separate educational systems. It is no match for our failure of courage to call out the persistent segregation of our schools. Some scholars have argued that King will be good for school integration. Time will tell if we are entering a moment that moves beyond rhetoric toward substantial desegregation. In this time of transition for the Education Department — in the last year of the Obama administration — are we going to continue ignoring the moral implications of separate schools? Our history shows that policy cannot focus on improving “failing” schools; it needs to also emphasize desegregating them. No matter how much we seek to improve the back of the education bus, it will always be the back.

Enforcing desegregation in public education will serve as a bridge to link ongoing racial disparities with historic racial discrimination and challenge white supremacy --- advances equality in prisons, mental health facilities, housing authorities, and police departments

Holley-Walker, 12 --- Associate Professor of Law, University of South Carolina School of Law, J.D. from Harvard (Winter 2012, Danielle, Georgia State University Law Review, “A NEW ERA FOR DESEGREGATION,” 28 Ga. St. U.L. Rev. 423, Lexis-Nexis Academic, JMP)
[*443] III. WHY WE NEED A NEW ERA OF DESEGREGATION The goal of Part III is to make the normative case for a new era in traditional desegregation cases. Plaintiffs in pending traditional desegregation cases should re-examine those cases and, where appropriate, argue that the desegregation orders in those cases be enforced. The vigorous enforcement of desegregation orders is desirable in both practical and rhetorical ways.The practical benefits include providing an avenue for additional resources for minority and high-poverty schools, having a direct, race-conscious method of challenging resegregation and racial isolation, and providing an alternative method for equal educational opportunity beyond socioeconomic integration plans and school finance cases. The broader, rhetorical benefits of vigorous desegregation enforcement include the ability for plaintiffs and civil rights advocates to make positive arguments for the benefits of racial integration and highlight ongoing racial disparities in our public schools. The successful conclusion of desegregation cases is also a part of the broader landscape of structural reform litigation. If desegregation litigation is ultimately successful in various school districts, it will provide a valuable blueprint for other struggling structural reform litigation, such as prison reform litigation. A. The Current Landscape of Education Reform Desegregation is not a focal point of current public school reform in theUnited States. Instead, education reform efforts over the last quarter-century have focused on accountability, school choice, and school finance. n118 [*444] 1. New Accountability Many scholars trace the current era in education reform back to the 1983 report, A Nation at Risk: The Imperative for Educational Reform. n119 The report was authored by the National Commission on Excellence in Education, a panel formed at the request of then-Secretary of Education, Terrel Bell. n120 The report recommended "stronger high school graduation requirements; higher standards for academic performance and student conduct; more time devoted to instruction and homework; and higher standards for entry into the teaching profession and better salaries for teachers." n121 The findings from A Nation at Risk received significant public attention, and in its aftermath, almost every state formed a task force or a commission to study school reform. n122 By the early 1990s, the results and direction of these reform efforts were becoming clear. States began to focus on adopting performance standards for students, requiring standardized testing to assess whether these goals were being met, reporting the testing outcomes to the public, and implementing consequences for schools and school districts where students did not meet the performance standards. n123 These reforms have become known as "New Accountability." n124 The hallmark of New Accountability is that schools and school districts [*445] are evaluated on their student educational outcomes, and those outcomes are measured almost exclusively by standardized tests. n125 At present, New Accountability is most closely associated with the 2002 federal education law, No Child Left Behind (NCLB). n126 Under NCLB, states are required to adopt reading and math standards, test students annually to assess the students' progress towards proficiency in math and reading, and finally to hold schools accountable if students are failing to make adequate yearly progress (AYP) towards proficiency. n127 The accountability designations under NCLB include "needs improvement," "corrective action," and "restructuring." n128 These designations call for escalating sanctions, including making supplemental education services available and allowing students to transfer schools. n129 Restructuring is the most drastic of the accountability measures, requiring that schools which fail to make AYP for more than four consecutive years be faced with a series of sanction options including: school closure, firing of teachers and administrators, conversion to a charter school, or any other major restructuring of school governance. n130 As of the 2007-2008 academic year, over 3,500 schools were in restructuring under NCLB. n131 [*446] The Obama Administration has made accountability a central part of its education policy. Under the American Recovery and Reinvestment Act, the United States Department of Education has passed new regulations that require states to identify their persistently low-performing schools. n132 In the Obama Administration's proposed changes to NCLB, the administration removes the goal of proficiency in reading and math by 2014 but continues to include accountability measures such as allowing "failing" schools to be converted to charter schools. n133 2. School Choice Another dominant strand in the school reform efforts of the last quarter-century has been school choice. The concept of school choice encompasses a broad number of different policy ideas, including the creation of magnet schools and charter schools, and the availability of school vouchers. n134 School choice "can be defined broadly as educational policies and practices that allow a student to attend a school other than his or her neighborhood school." n135 [*447] a. Magnet Schools Many school choice options, such as magnet schools, developed in the late 1960s as a method of promoting racial integration. n136 Magnet schools are schools that typically pick an academic focus, such as math and sciences or the performing arts, to attract students from across a city or even across school district lines. n137 Magnet schools played a key role in desegregation. For many years desegregation resources focused on the funding of magnet school programs. n138 "As reliance on other desegregation strategies has gradually diminished, magnet schools have emerged as the principal means upon which school systems--particularly larger, urban school systems--now rely to advance Brown's vision of equal, integrated public education." n139 Despite this reliance on magnet schools as a desegregation mechanism, the schools' effectiveness in promoting racial integration may be waning due to a lack of funding and other factors. n140 One study by the Department of Education concluded that magnet schools receiving federal grant money have "made only modest progress in reducing minority group isolation." n141 The current activity in pending desegregation cases reflects this increasingly muddled connection between magnet schools and desegregation. There are indications that some plaintiffs in desegregation cases may begin to view magnet schools as an obstacle to increasing racial integration and equality. In Tangipahoa Parish School Board, the plaintiffs opposed the concept of additional schools and magnet schools as the primary response to the school [*448] district's ongoing constitutional violation. n142 The plaintiffs argued that, "[t]he plan submitted by the defendants is not a desegregation plan but a massive building plan devoid of any meaningful desegregation analysis. The school board's plan is a camouflage that seeks to maintain certain one-race schools into perpetuity." n143 Despite the plaintiffs' opposition, the district court accepted the school board's desegregation plan that relies on the construction of additional elementary schools and the creation of additional magnet programs. n144 Having magnet schools included as part of the desegregation plan does provide an opportunity for court and community oversight to insure that the magnet programs are being implemented with a desegregative purpose. Tangipahoa Parish School Board also provides a blueprint for other plaintiffs in similar desegregation cases to offer concrete alternatives to magnet schools. n145 b. Charter Schools Charter schools are another example of how school choice and desegregation may collide. n146 Charter schools are publicly funded schools that have greater autonomy as to curriculum, staffing, and school policy. n147 Charter schools are based on the idea that this autonomy will create more opportunity for policy innovation and encourage additional commitment from parents, students, and [*449] administrators. n148 Charter schools have been hailed as an important alternative to the traditional public school system. Every presidential administration since the early 1990s has made charter schools a central part of federal education policy. n149 States have also championed charter schools, with over forty states and the District of Columbia having a charter school law. n150 Charter schools are also central to the landscape of urban schools, with some urban school districts, such as New Orleans and Baltimore, having a large number of their overall public schools in the charter format. n151 Civil rights organizations continue to voice their concern about the racial isolation that exists in many of our nation's charter schools. n152 In a recent report, the UCLA Civil Rights Project/ProyectoDerechosCiviles concluded that "charter schools are more racially isolated than traditional public schools in virtually every state and large metropolitan area in the nation." n153 The study notes that charter schools have a higher percentage of African-American students than traditional public schools and that 70% of these students attend "intensely segregated minority charter schools (which enroll 90-100% of students from under-represented minority backgrounds)." n154 In ten states, mostly in the West, white students [*450] make up a higher percentage of the students in charter schools than in the traditional public schools, and these states also have high percentages of nonwhite students. n155 "Charter schools in some of the most diverse states may be as [sic] a less diverse alternative for white students." n156 Just as importantly, the report notes that charter school proponents cite school improvement as the main justification for charter school expansion, but there is little discussion of the impact of charter schools on racial diversity. n157 These concerns about racial isolation in charter schools come at the same time that the federal government continues to promote charter schools as a centerpiece of school reform efforts. n158 For the last several decades, the federal government has promoted the expansion of charter schools. n159 Charter schools have been promoted as having the potential to offer poor students a high-quality alternative to the traditional public school system and to allow teachers and administrators the opportunity to utilize innovative curriculum and school policies. n160 Charter schools have also become a central part of accountability legislation, like NCLB, because charter schools are incorporated as an option for schools that fail to meet yearly standards. n161 One prominent civil rights scholar, John A. Powell, has identified this conflict as a struggle between "integrationists" and "reformists." n162 Integrationists support racial integration either as a means of producing greater educational outcomes or serving broader [*451] values such as the promotion of tolerance and good citizenship. n163 Reformists also believe in educational equity and outcome improvement, but they advocate school reform without regard to issues of racial or economic disparity. n164 The concern over charter schools and their possible conflict with desegregation goals is being played out in the recent developments in the Little Rock desegregation case. n165 The district claims that charter schools are "draining non-black students and high performing students" from the traditional public schools. n166 The charter school movement has become increasingly identified with privatization, deregulation, and providing alternatives for failing traditional public schools. n167 c. School Vouchers School voucher programs "provide vouchers that can be used at private schools, including religious schools . . . ." n168 These programs have been implemented in only a few cities and states including Milwaukee, Cleveland, and Florida. n169 Proponents of school vouchers, including some segments of the African-American community, argue that vouchers provide an alternative to failing schools and give parents the opportunity to choose effective schools for their children, similar to wealthy parents. n170 Opponents of school vouchers argue that pouring public money into private schools may drain the public schools of resources, and that public money being [*452] transferred to parochial schools is a First Amendment concern. n171 Some suburban opponents also fear that vouchers will allow minority and poor children to enter their schools. n172 Due to their limited adoption and use, school vouchers will not likely promote increased racial integration of the public schools and will likely not be seen as a desegregative tool. n173 3. School Finance Reform Beyond school choice, school finance reform has also been an important strand of recent education reform movements. After the U.S. Supreme Court's 1973 decision in San Antonio Independent School District v. Rodriguez, n174 in which the Court determined that education was not a fundamental right under the Federal Constitution, school reform advocates filed lawsuits under state constitutions to argue for more equality in school funding. n175 In states from New Jersey to South Carolina, these lawsuits have been successful in winning determinations that students have a right to education under the state constitution. n176 The intransient hurdles in [*453] the state school finance litigations have proven to be crafting effective remedies. In many states and school districts, school finance litigation was the form of school equity litigation that followed traditional desegregation cases. n177 In the late 1960s and early 1970s, some civil rights advocates believed that traditional desegregation was no longer going to be effective, so they sought out new types of reform litigation. n178 In the most recent wave of school finance litigation, plaintiffs typically argue that a provision in the state constitution guarantees public school education, and that the state's school funding scheme violates that basic state constitutional guarantee. n179 Since 1970, courts in over half the states have found that the state's school funding system does not satisfy the state constitution, under either the equal protection clause or the education clause of the state constitution. n180 Despite the success for plaintiffs in these cases, many school equity advocates have expressed frustration with the ability of school finance cases to create equal educational opportunity. Similar to school desegregation cases, school finance reform cases are subject to politics, especially in the implementation of any remedies to address the state constitutional violations. For example, in the first [*454] Connecticut school finance case, Horton v. Meskill (Horton I), n181 after the courts found that the state constitution violated the state education clause and state equal protection clause, they left it to the executive and legislative branches to craft a solution. n182 The lawsuit ultimately did not end the disparities in expenditures between "property-poor and property-rich districts." n183 This failure to achieve equalization has been attributed to "weak political will and extensive deal-making." n184 Another barrier to school finance litigation creating equal educational opportunity is the difficulty in crafting and implementing effective remedies. n185 School finance cases are also subject to significant racial politics. n186 James Ryan has said "the evidence offers further proof that one must understand the dynamics of race relations and school desegregation in order to understand fully the limits and dynamics of school finance reform." n187 Specifically, Ryan argues that school finance cases demonstrate that predominately minority school districts are more likely to face funding problems, whereas integrated school districts are likely to have better financial situations. n188 [*455] Predominately minority districts are also less successful as plaintiffs in school finance litigation. n189 Civil rights advocates also claim that the school finance cases do little to decrease racial isolation, and may have been a barrier to effectively implementing desegregation orders because the finance cases focused state resources on equalization of funding instead of desegregation. n190 In Connecticut, a group of plaintiffs concluded that the Horton litigation did little to address the racial and economic isolation of urban districts, and so they filed a separate lawsuit, Sheff v. O'Neill, to specifically challenge persistent racial disparities in the state school system. n191 While some school finance litigation has been successful based on challenges to state constitutions, the U.S. Supreme Court found in San Antonio Independent School District v. Rodriguez n192 that there is no federal right to education. n193 That means the resources of the federal government, which have been such a powerful tool for desegregation cases, are not an important factor in the pursuit of school finance litigation. n194 Reliance on state constitutions also leaves a patchwork of rights for students across state lines. n195 4. Themes in Current Education Reform Efforts What are the dominant themes that emerge from these education reform efforts? The accountability movement, which has become perhaps the most dominant aspect of education reform in the wake of NCLB, focuses almost exclusively on student learning outcomes and [*456] student achievement, as measured by standardized testing. n196 In the accountability movement, racial integration is not a goal. Instead, emphasis is on closing the racial achievement gap and promoting the idea that all children can learn. n197 There is little discussion of why the racial achievement gap persists and how addressing historic racial inequality might help address the problem. n198 One of the underlying premises of the accountability movement is that the state will educate children where they are, meaning that children in poor, racially isolated schools will be provided a successful standards-based education--even in the face of significant social science evidence to the contrary. n199 "[P]erhaps the greatest flaw of standards-based reform schemes as currently designed and implemented is that they all lack a crucial ingredient: meaningful assurances that all schools--particularly poor and minority schools--possess the educational conditions and resources necessary to teach to--and achieve--the state's high standards." n200 Furthermore, the standards and accountability movement has not proven to set a high bar for academic achievement. The No Child Left Behind Act and state accountability statutes measure the basic skills students should possess in math and reading, instead of prescribing an aspirational curriculum. n201 This focus on adequacy has also emerged in the school finance cases since the late 1980s. n202 Most [*457] school finance cases no longer pursue equal funding, but instead funding that will give each child a minimally adequate education. n203 The other theme that emerges from the current education reform landscape is the notion that education is simply the ability to acquire knowledge in reading, math, and science instead of a broader process of preparing students to become sophisticated and responsible citizens of our democracy. n204 The Supreme Court has said: We have recognized "the public schools as a most vital civic institution for the preservation of a democratic system of government," and as the primary vehicle for transmitting "the values on which our society rests." "[A]s . . . pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence." n205 The goals of public education narrow with the focus on adequacy and accountability. B. A Role for Desegregation Cases in the Education Reform Landscape My argument is not that all of the current education reform efforts, such as accountability, school choice, and school finance litigation, should be abandoned. Instead, education reformers should recognize that the remaining desegregation cases have a critical role to play in providing better educational opportunity for all students. Traditional [*458] desegregation cases offer unique benefits that are currently lost in the education reform landscape. Specifically, traditional desegregation cases have the ability to connect the persistent racial achievement gap with the lingering effects of historic racial discrimination, allow for continuing efforts to use targeted race-conscious measures to improve education for poor students and racial minorities, and use litigation as a means to promote a public dialogue about the ongoing importance of racial integration to our democracy. 1. The Lingering Effects of Historic Discrimination Despite all of the education reform efforts of the last several decades, there is a persistent racial achievement gap. As noted above, one of the goals of NCLB is to close the achievement gap. n206 The National Assessment of Educational Progress from July 2009 noted that math and scores were higher than in any year since 1990. n207 Despite this progress, white students' scores are on average twenty-six points higher on the assessments on a 0-500 scale. n208 There are also disturbingly high numbers of racial minorities dropping out of high school. Currently, only 54% of African-American, 51% of Native American, and 56% of Latino students graduate from high school. n209 A recent report, Yes We Can: The Schott 50 State Report on Public Education and Black Males 2010, noted that in the 2007-2008 school year, black males graduated from [*459] high school at a 47% rate in comparison to 78% for white males. n210 In some urban areas, these numbers are even more dismal, with black males graduating from high school at a rate of 24% in Charleston, South Carolina, 25% in Buffalo, New York, and 21% in Pinellas County, Florida. n211 Why does the racial achievement gap continue to exist in American public schools? Experts often cite several factors, including poverty, lack of parental involvement, and cultural factors. n212 One factor that is sometimes overlooked is the impact of historic racial discrimination and ongoing racial discrimination in our schools. As Wendy Parker has noted, one stubborn area of ongoing racial disparity is in school faculty composition. n213 Parker notes that in the 157 school districts she studied, racially "[m]atching the teaching staffs to the student body was a hallmark pattern of both de jure and de facto segregated schools . . . ." n214 Parker argues that where de facto segregation has become "acceptable both constitutionally and educationally, . . . integration of both students and teachers is a necessary first step to achieving equal opportunity; without it, the distribution of resources will be unequal." n215 The plaintiffs in the Tangipahoa Parish litigation saw teacher segregation as a lingering effect of prior de jure segregation, and they strongly argued that the desegregation plan should include the protection and promotion of African-American teachers. n216 [*460] Another ongoing area of racially disparate treatment is in the assignment of students to special education classes and in the imposition of disciplinary actions. n217 There have also been instances of racially discriminatory treatment in extracurricular activities. In one Mississippi school, there was a policy of excluding African-American students from running for leadership positions in the student government. n218 In school districts that are still under a desegregation order, these cases provide an opportunity to meaningfully challenge ongoing instances of racial discrimination, such as teacher segregation, disproportionate student discipline, and inequality in school resources. This is especially important when other methods for private plaintiffs to challenge racial discrimination in education, such as aspects of Title VI of the Civil Rights Act of 1964, have been limited. n219 Traditional desegregation cases also provide a crucial opportunity to link ongoing racial disparities with historic racial discrimination. As demonstrated in Walthall County, Mississippi, there are also instances of racially biased student assignment. n220 There is a continuous narrative that can be told about the history of the school system that provides a structural explanation for racial inequality. For example, in the Pulaski County litigation discussed above, the plaintiff has used its Motion to Enforce to recount the racially discriminatory history of both housing and schools and to [*461] demonstrate the way these past policies continue to impact the school district. n221 2. Employing Race-Conscious Remedies The education reform efforts such as accountability, school choice, and school finance reform do not ignore race, but if they address race they rely primarily on race-neutral remedies. n222 If we want to improve educational opportunities for minority students, race-conscious efforts are important where they are available. n223 For example, in Connecticut, plaintiffs realized that school finance efforts alone would not be enough to improve opportunity for minority students in urban areas. n224 Many scholars have raised doubts about whether race-conscious efforts to racially integrate schools are important to the overall goal of greater educational opportunity and improved student outcomes. n225 Racial isolation sends a strong message to minority students that there is ongoing racial hierarchy and racial subordination. n226 Racial isolation can also reinforce racial stigma. As Professor Michelle Adams argues in a recent article, the topic of school desegregation is central to the broader dialogue about the value of racial integration. n227 Professor Adams argues that the goal of racial integration is under attack. n228 For some conservatives, such as Chief Justice Roberts, promoting racial equality in K-12 schools [*462] means preventing reverse racial discrimination. n229 For many progressives and African Americans, the issue of race and schools is tied to the question of black identity and black achievement. n230 These observers challenge the assertion that quality schools are equivalent to racially integrated schools and argue that we should begin to focus on creating high-quality schools regardless of their racial makeup. n231 Professor Adams then argues that there is a need to embrace "radical integration" as a "forward-looking, aspirational view of equality." n232 It is difficult to think of many examples where racial integration is being advocated for in this manner. Traditional desegregation cases provide an opportunity for plaintiffs to make these types of aspirational arguments for racial equality and to see court orders that both acknowledge the history of racial discrimination and provide a blueprint and resources for racially integrated education in the twenty-first century. In the Walthall County desegregation case, the federal government argued for a vision of equality that includes integrated schools and classrooms. n233 Professor Adams also advocates for the radical integration approach as a way to "highlight[] the deep interdependence between segregation and the maintenance of white supremacy.Within this paradigm, racial segregation is understood as a multifaceted and self-sustaining generator of inequality." n234 We see this theory at work in the Little Rock desegregation case. In the school district's Motion to Enforce the 1989 Settlement Agreement, the school district recounted [*463] the recent history of both residential and inter-district school segregation in Pulaski County. n235 The school district is able to focus on the importance of ending racial isolation, not for the goal of diversity, but instead to address structural inequality. Furthermore, there has not been significant empirical evidence that racially and socioeconomically isolated schools are able to provide high-quality education for students in those schools. n236 Although desegregation decrees remain in only a small number of school districts, plaintiffs may use these cases as an opportunity to highlight racial isolation and the importance of racial integration as a value. 3. Litigation as a Dialogic Tool Why is litigation a useful method for public debate on whether racial integration is an important value in our public schools? Litigation provides a unique opportunity to have a public dialogue on the issue of racial integration. Litigation also provides an opportunity to marshal and debate empirical evidence on the role of race in public education. PICS is an example of litigation providing an opportunity for a broad public dialogue on race in public schools. The party briefs and amicus briefs provided ample empirical evidence about whether avoiding racial isolation may be a compelling government reason for employing race-conscious remedies. n237 In the Supreme Court opinion, the Justices engage in a debate about the meaning and legacy of Brown. n238 This became a key point of disagreement for the Justices in PICS. n239 For Chief Justice [*464] Roberts, the desegregation cases, beginning with Brown, represent the importance of colorblindness: n240 Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. . . . For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way "to achieve a system of determining admission to the public schools on a nonracial basis" is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. n241 Justice Stevens wrote a separate dissent focusing on the legacy of Brown. Justice Stevens argued that Chief Justice Roberts' interpretation of Brown was devoid of context and history: There is a cruel irony in THE CHIEF JUSTICE's reliance on our decision in Brown . . . . THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered [that they could not go to school with white children]; indeed, the history books do not tell stories of white children struggling to attend black schools . . . . THE CHIEF JUSTICE rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude. n242 The remaining desegregation cases and their outcome will provide an important opportunity to recapture the legacy of Brown and to engage in a public discourse about the continuing racial inequality in our public schools. [*465] There are also significant limits to litigation, and many of these challenges have been demonstrated in the history of the desegregation cases. Traditional school desegregation cases occupy a special place in the history of American litigation. n243 Scholars have identified desegregation cases as the paradigmatic example of structural reform litigation and public law litigation. According to Professor Owen Fiss: Adjudication is the social process that enables judges to give meaning to public values. Structural reform . . . is one type of adjudication, distinguished by the constitutional character of the public values and, even more important, by the fact that it involves an encounter between the judiciary and the state bureaucracies. The judge tries to give meaning to our constitutional values in the operation of these organizations . . . . As a genre of constitutional litigation, structural reform has its roots in the Warren Court era of the 1950s and 1960s and the extraordinary effort to translate the rule of Brown v. Board of Education into practice. n244 As structural reform litigation, the school desegregation cases led the way for other types of lawsuits to reform social institutions, such as prisons, mental health facilities, housing authorities, and police departments. n245 The role of desegregation cases as a paradigm of structural reform litigation means that the legacy of these cases has broader implications. n246 Is the desegregation docket in the federal district courts seen as a failure? Some have argued that the litigation strategy [*466] failed. n247 Others have argued that court-supervised desegregation was successful for a short time from the late 1960s to mid-1970s and then began to suffer a series of setbacks that have led to the current climate of resegregation. n248 A new era of desegregation may redefine the landscape of structural reform litigation by demonstrating the resilience of this form of adjudication. These cases lay dormant for decades, but because of the process of adjudication, specifically the remedy of the injunction, the cases remain a powerful tool for social transformation and racial justice. The school desegregation cases were a blueprint for many of the other major structural reform litigation movements, including prison reform and reform of mental health institutions. IV. CONCLUSION The final chapter of the desegregation cases is now being written. This final chapter is an important moment for both education reform and racial justice. The remaining desegregation cases are a means to help address the lingering effects of past discrimination and to refocus our education reform on equality as a core value.

Challenging institutional racism is a prior ethical question

Memmi, 2k --- Professor Emeritus of Sociology @ U of Paris, Naiteire (Albert, Racism, Translated by Steve Martinot, p. 163-165)
The struggle against racism will be long, difficult, without intermission, without remission, probably never achieved. Yet, for this very reason,it is a struggle to be undertaken without surcease and without concessions. One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in other people, which is to diminish what is human. To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. it is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable negativity of the condition of the dominated that is, it illuminates in a certain sense the entire human condition.The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animosity to humanity. In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduit only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a human order, for which racism is the very negation. This is almost a redundancy. One cannot found a moral order, let alone a legislative order, on racism, because racism signifies the exclusion of the other, and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is ‘the truly capital sin.It is not an accident that almost all of humanity’s spiritual traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of course, this is debatable. There are those who think that if one is strong enough, the assault on and oppression of others is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat others with respect so that they treat you with respect. “Recall.” says the Bible, “that you were once a stranger in Egypt,” which means both that you ought to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and a practical appeal—indeed, it is a contract, however implicit it might be. In short, the refusal of racism is the condition for all theoretical and practical morality because, in the end, the ethical choice commands the political choice, a just society must be a society accepted by all. If this contractual principle is not accepted, then only conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace. True, it is a wager, but the stakes are irresistible.

U.S. legal changes are modeled by other countries --- civil rights protections in education are critical to overall equality --- they help sustain social movements

Willie, 14 --- professor emeritus at the Harvard Ed School, served as a consultant, expert witness, and court-appointed master in major school desegregation cases in cities such as Boston, Hartford, Dallas, Denver, Houston, Kansas City, Little Rock, Milwaukee, San Jose, Seattle, and St. Louis (6/4/14, Charlies, “Brown at 60 and Milliken at 40,” https://www.gse.harvard.edu/news/ed/14/06/brown-60-milliken-40, accessed on 5/14/17, JMP)
Michelle Obama has reminded us to remember this: "Movements for real and lasting change are sustained by the relationships we build with one or others." The idea suggests that real success is based on a mutually collective relationship or a community. The quotation from our first lady reminds me of a statement made by former Morehouse College president Benjamin Mays, who told me and the other undergraduates, includingMartin Luther King Jr., in the class of 1948 that "No [one] is wise enough or strong enough to go it alone." Brown v. Board of Education of 1954 and the Civil Rights Act of 1964 gave us the help we needed to stay on the right road to a nation-state of the people by the people and for the people that was created to establish justice, insure domestic tranquility, and promote general welfare. Also, our Declaration of Independence adopted in 1776 declared that "all are created equal." We know that theUnited States has not always lived up to the democratic principles of community life. However, it is never too late to do the right thing. Sixty years after the Supreme Court Brown opinion and 50 years after the United States Congress law that required justice for all in public institutions is a good time to assess the effects of these historical events. We know that it is right and our bound duty to give thanks for the good that we have experienced with others in public or private relations in public or private spaces. Many scholars have recognized that Brown was in part based upon the 14th Amendment of the United States Constitution, which declares that "No state shall make or enforce any law which shall abridge the privileges … of citizens … nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law." My guess is that sooner or later, this amendment is going to be used against people who kill people in the theaters and streets and elsewhere simply because they do not like how one looks or where one may be going. The Brown v. Board of Education decision was in part based upon this amendment. It has been said that the 14th Amendment strengthened the Supreme Court opinion in Brown. And it could be used against many other contentious issues with reference to race and gender. In our technology society today, the words of the Brown opinion ring again: "Today, education is perhaps the most important function of state and local governments." Brown declared that education "is the very foundation of good citizenship," and I would add so is diversity. Diversity is in the air. Diversity is everywhere because no one is strong enough to go it alone, especially in education and public service. We know that theUnited States has not always lived up to the democratic principles of community life, including the value of diversity. A very important reason for examining closely the Brown v. Board of Education case is that it quickly addresses the question of whether racially segregated schools are inherently unequal. Law professor Norman Vieira, in his 1978 book, Civil Rights in a Nutshell, wrote, "In its historical context, state enforced racial separation would almost certainly [have been] by whites who were politically and economically dominant." A famous historian, John Hope Franklin, wrote in his book From Slavery to Freedom, "No public question in theUnited States in the twentieth century arouses more interest at home and abroad than the debate about the constitutionality of segregated public schools." Franklin further said, "The decision of the court in Brown v. Board of Education, May 17, 1954, was unequivocal in outlawing segregated public schools." Another famous historian, Richard Kluger, also agreed with John Hope Franklin. In 1977, Kluger said, "Scholars have assigned the case known as Brown v. Board of Education … a highpoint in America's willingness to face the consequence of centuries of racial discrimination." I will close this part of the Brown v. Board of Education story by sharing with you how one country, the Republic of South Africa, has reacted to the Brown case. I will share with you my observations while visiting South Africa to participate as one of the speakers in the conference on Equal Educational Opportunities Comparative Perspective in Education Law: Brown v. Board of Education at 50 years and Education Law at 10 years. Please note that the conference name included the United States and South Africa. Conference leaders said, "The year 2004marked two momentous occasions: The 50th anniversary of the United States Supreme Court's ruling in Brown v. Board of Education and the first 10 years of democratic government in South Africa." The conference planners further said, "In Brown, the American Supreme Court struck down the notion of separate but equal education, and the dawn of democracy in South Africa was accompanied by legislation guaranteeing equality and the right to equal educational opportunities." Judge Albie Sachs of the Constitutional Court of South Africa — similar to the U.S. Supreme Court — gave the first public speech on equal educational opportunities and the Constitutional Court. He began his speech with these words: "I, speaking now as a judge, have no hesitation in saying that as far as I am concerned, the greatest legal decision of the 20th century in the world was Brown. It set a marker in terms of creativity, in terms of resonance, in terms of integrity — philosophical and legal integrity — for the whole world. It also included what judges could do. The role and scope of a judiciary in a society that proclaimed itself as one based on fundamental value was demonstrated in it. The justices were saying that there are certain forms of conduct that are just not sustainable, that just cannot be tolerated in a society with pretentions to justice." The whole conference burst into a very loud and long clapping of hands. I, of course, was very happy to hear those remarks from a member of the Constitutional Court in South Africa. Personally, I realized that what we do in theUnited States is watched carefully elsewhere. I know this to be true because my wife and I visited the Constitutional Court after the conference that I addressed; we were presented a small book of the Constitution of the Republic of South Africa prepared in 1996 that is similar in some ways to the Constitution of theUnited States.

DOJ is critical to advance, monitor and enforce desegregation cases, including those addressing imbalances within schools

Holley-Walker, 12 --- Associate Professor of Law, University of South Carolina School of Law, J.D. from Harvard (Winter 2012, Danielle, Georgia State University Law Review, “A NEW ERA FOR DESEGREGATION,” 28 Ga. St. U.L. Rev. 423, Lexis-Nexis Academic, JMP)
A. The Role of the Federal Government The federal government will likely be the decisive factor in determining whether there is a new era in desegregation cases. n62 One [*434] of the reasons that desegregation litigation has failed to have a significant impact in recent history is that "over the past forty years, under no administration, Democratic or Republican, has DOJ taken a thoughtful, transparent, comprehensive, and strategic approach to its school desegregation docket." n63 Due to the federal government's role as plaintiff in a large number of the remainingdesegregation cases and the historic lack of attention to these cases, if desegregation cases are going to become reinvigorated,the federal government will have to take a leading and strategic role in the process.The history of the federal government's role in desegregation cases is complex and has had more twists and turns than a mystery novel. n64 Mirroring the broader history of desegregation itself, the federal government took almost no steps to initiate school desegregation litigation in the ten years following Brown. n65 Federal involvement in desegregation cases took off after the passage of the Civil Rights Act of 1964, specifically Title IV, which authorized the Attorney General to begin desegregation litigation against states and school districts after receiving a written complaint from private individuals, and Title VI, which prohibited racial discrimination in programs that received federal money. n66 In the 1960s the federal government brought approximately six hundred administrative proceedings and over five hundred lawsuits against school districts and states to force desegregation. n67 President Nixon's administration was the end of these aggressive initiatives and kicked off the next several decades of neglect (sometimes benign, at other times intentional) of the traditional desegregation cases. n68 After the election of President Barack Obama, there have been questions about the approach that the DOJ and other federal agencies [*435] will play in the continuing struggle to racially integrate America's public schools. n69 The current Civil Rights Division of the DOJ has publicly expressed a commitment to enforcing the traditional desegregation orders in cases in which the United States is a plaintiff. The Civil Rights Division recently stated, "The enforcement of the Equal Protection Clause and Title IV in school districts is a top priority of the Justice Department's Civil Rights Division." n70 An important indication of the DOJ's renewed commitment to desegregation cases is the recent activity in a desegregation case in Walthall County, Mississippi. The Walthall County school system was ordered to desegregate in 1970. n71 In the 1970 desegregation order, the district court enjoined the school district from: [D]iscriminating against any student on the basis of race or color in the operation of the Walthall County School District and failing or refusing to immediately terminate the operation of a dual system of schools based on race and to operate, now and hereafter, a single, non-racial unitary system of public schools. n72 In 2007, the DOJ sought information from the school district about whether the district was in compliance with the 1970 Order. n73 After receiving the school district's responses, the DOJ alleged that the district was in violation of the desegregation order. n74 The DOJ [*436] asserted that the school district allowed approximately three hundred students a year to complete intra-district transfers. n75 Most of these students were white students who sought to transfer out of their assigned residential zoned school to another school in the district that is predominately white. n76 These transfers allowed one group of schools to become "racially identifiable" white schools, while the student enrollment in other schools became predominately black. n77 The DOJ also alleged that the school district administrators clustered "disproportionate numbers of white students into designated classrooms" at three schools, creating "segregated, all-black classrooms at each grade level." n78 The school district declined to file a response to the DOJ's allegations, and the district court entered a finding that the evidence supported the DOJ's allegations. n79 The district court concluded that the school district was in violation of the 1970 Order and ordered the school district to deny all requests for intra-district transfers, except in limited circumstances. n80 The district court further ordered the school district to "cease using race in the assignment of students to classrooms in a manner that results in the racial segregation of students." n81 A further indication of the DOJ's seeming renewal of its commitment to the desegregation docket is the ongoing monitoring provisions the DOJ sought in the Walthall County case.Upon the DOJ's request, the district court ordered the school district to annually report the numbers of intra-district transfers and the racial demographics in classrooms. n82 This signaled the DOJ's intention to [*437] closely oversee the school district's efforts to comply with the most recent court order. The DOJ cited the threat of resegregation as its primary reason for reactivating the Walthall County, Mississippi, desegregation case: "More than 55 years after Brown v. Board of Education, it is unacceptable for school districts to act in a way that encourages or tolerates the resegregation of public schools." n83 Of course, the renewed activity of the DOJ and private plaintiffs to enforce desegregation orders may also spur school districts to actively attempt to close the pending cases. As noted by Wendy Parker, many school districts are aware they are still under a desegregation order, but many districts do not actively seek to have the cases terminated. n84



The United States federal government, via Section 5 of the Fourteenth Amendment, should regulate K-12 schools that receive public funding by implementing a law that:

n Requires states to affirmatively further racially integrated education

n Explicitly includes a private right of action for parties to sue for equitable relief if states fail to take measures to affirmatively reduce racial isolation in schools

n Creates clear statutory language that confers rulemaking and regulatory authority to the Department of Education’s Office for Civil Rights or an independent agency directed by a career employee, rather than a political appointee, to provide federal oversight and enforcement

n Authorizes and requires action by the Department of Justice for states that refuse compliance

n Funds deliberations that both document the current racial inequities in educational opportunity and funds research, development, and policy replication to provide useful data that may assist states and localities in fostering racially inclusive educational opportunities

n Preserves and strengthens federal, state, and local efforts to protect equal access to educational opportunities

n Increases school funding for inner-city schools

The plan is a comprehensive mechanism to address racial segregation in public education --- congressional action is critical

Epperson, 12 --- Associate Professor of Law, American University Washington College of Law (Winter 2012, Lia, Harvard Law & Policy Review, “SYMPOSIUM: EDUCATION: EQUALITY OF OPPORTUNITY: Legislating Inclusion,” 6 Harv. L. & Pol'y Rev. 91, Lexis-Nexis Academic, JMP)

In its examination of Section 5 power to protect fundamental rights and suspect classes, the Court has continued to underscore Congress's substantial authority. Hibbs and Lane suggest that to survive Boerne's congruence and proportionality requirements, such legislation need not directly target adjudicated constitutional violations. The FMLA at issue in Hibbs, for example, provided remedies beyond existing civil rights legislation. n109 In Lane, the Court found support for Title II of the ADA outside the legislative record provided and in instances without evidence of a discriminatory motive. n110 It is worth noting, however, that the wide latitude the majority afforded in Hibbs and Lane may not be easily replicated given the changing composition of the Court. Since 2004, Chief Justice Roberts and Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan have replaced Justices Rehnquist, O'Connor, Souter, and Stevens, respectively; the former Justices all voted to uphold the policies at issue in those cases. n111 While the replacement of Justices Souter and Stevens with Justices Sotomayor and Kagan may not portend a jurisprudential shift, the addition of Chief Justice Roberts and Justice Alito may augur more considerable changes. Roberts replaced Rehnquist, the author of the majority opinion in Hibbs, and Alito replaced O'Connor, the author of the majority opinion in Lane. In addition, while Justice Kennedy offered hopeful language in his Parents Involved concurrence, he joined the dissent in Lane and Hibbs. One could argue, however, that some [*104] of Kennedy's more recent jurisprudence suggests an evolving understanding of issues of fundamental racial inequality and access to opportunity. n112 His opinion in Parents Involved and his recent voting rights jurisprudence evince a more nuanced awareness of structural racial inequities and the relevance of racial identity and dynamics than in previous decisions. n113 Kennedy, with the implicit endorsement of the four dissenting Justices, has clearly found a compelling government interest in avoiding racial isolation in schools, regardless of whether such isolation is the result of a discriminatory motive or more complex structural inequities. n114 Moreover, he has called on the legislative and executive branches to go forth and craft remedial policies. n115 As such, it is certainly possible that he could uphold Congress's authority to craft carefully tailored legislation to address de facto racial segregation in schools. n116
Since Boerne, the Court has not addressed the scope of congressional enforcement power in areas that touch on fundamental racial inequality. In 2009, the Court considered congressional enforcement power under the Fifteenth Amendment to enact the Voting Rights Act of 1965, n117 but unanimously applied the principle of constitutional avoidance to refrain from deciding whether the preclearance requirements of Section 5 of the Voting Rights Act exceeded Congress's powers. n118 In dicta, the Court referenced the need identified in post-Boerne cases for legislation that is designed to address recent patterns or practices of discrimination. n119 The Court suggested that the Voting Rights Act raises serious constitutional concerns in that it "imposes current burdens and must be justified by current needs." n120 The ruling is instructive insofar as it hints at the level of evidence of contemporary [*105] discrimination the Roberts Court may require to uphold congressional enforcement legislation intruding upon state sovereignty. n121
The aforementioned adjudicatory considerations of the reach of equal protection indicate that carefully tailored race-conscious legislation to eliminate racially isolated schools and address broad-based racial inequality in educational opportunity may be well within the Supreme Court's construction of congressional enforcement power under Section 5. Proposed legislation may be designed as a constitutional response to address the educational inequality facing racial minorities, which falls into the type of remedial legislation for the protection of traditionally excluded groups that the Court is more likely to uphold. Moreover, as discussed above, the nature of the legislative branch is that it does not suffer from the same constraints as the judiciary. As an institution, it is designed to gather facts from a broad range of constituents across the nation, the very data that would be necessary to develop appropriate remedial and prophylactic legislation addressing the compelling interest in alleviating persistent racial isolation in education.
In the wake of narrowed judicial avenues to remedy the structural racial inequality in education, Congress may be better situated to create a meaningful response. First, Congress has a clear responsibility under Section 5 of the Fourteenth Amendment to enforce racial equality. In addition, such responsibility is especially critical in the domain of education. n122 Given the text, history, and structure of congressional enforcement power under Section [*106] 5 of the Fourteenth Amendment, Congress should have broad power to establish national standards to protect basic educational rights and solve persistent racial inequality. From a practical perspective, however, such policies might be strongest if designed with a keen awareness of judicially defined limits on congressional enforcement power. Statutory design helps determine the probability of such legislation withstanding judicial scrutiny. The principles of flexibility and fostering local choice in creating remedies should guide the creation of statutory language to ameliorate racial inequality and promote racial inclusion in public education.
To stand on the strongest footing, proposed legislation at the intersection of racial equality and education should be designed with an understanding of the Supreme Court's narrower "congruence and proportionality" test set forth in Boerne. n123 To craft legislation that comports with the Boerne requirement of congruence and proportionality, legislators may need to clearly define the remedial and/or prophylactic purpose of the statute. If the statute's purpose is to remedy existing racial isolation and avoid continuing isolation, the legislation will be well within the definition of constitutionally authorized remedial or prophylactic legislation. n124 Yet, the question of how far such legislation should go in reaching this goal raises more complicated statutory questions. For example, such legislation may provide constitutional protection for ongoing voluntary integration efforts by school districts like Jefferson County, Kentucky, a district committed to creatively working to eliminate racial isolation even in the wake of the Supreme Court's decision striking down its previous policy. In addition, legislation might go further and articulate a broad directive to prod recalcitrant, less informed, or less aware districts to follow suit and begin to craft measures to foster racial integration.
This article does not purport to answer all of the questions raised by suggesting that Section 5 serve as the vehicle for federal legislation addressing de facto racial segregation in education. Rather, I offer some broad suggestions for ways in which lawmakers might conceive of maximizing the potential of a federal legislative structure aimed at ameliorating racial isolation and inequality in education. Such suggestions focus on three substantive areas: (1) the use of statutory language mirroring integration language in the fair housing context; (2) data collection to support legislation and to [*107] provide information on successful models of racially integrated education; and (3) implementing such legislation through a principle of shared burden.
A. Coupling the Fair Housing Analogy With Clear Enforcement Mechanisms
The aforementioned concerns regarding statutory language suggest that congressional efforts to further racial inclusion may be on stronger footing when such legislation does not require students to be individually classified by race or ethnicity. The context of fair housing provides an interesting model. The Fair Housing Act of 1968 n125 requires federal government agencies and the programs and activities they fund to be operated in a manner that affirmatively furthers fair housing. n126 Federal courts have repeatedly held that § 3608 reflects a congressional "desire to have [the U.S. Department of Housing and Urban Development (HUD)] use its grant programs to assist in ending discrimination and segregation . . . . " n127 Section 3608 imposes an affirmative obligation on HUD and its grantees to ensure that federal housing and community development funds are used to reduce rather than perpetuate racial segregation. n128 In fact, courts have held that in determining site selection of new schools or attendance zone lines, "[HUD cannot] remain blind to the very real effect that racial concentration has had in the development of urban blight . . . [and] must utilize some institutionalized method whereby, in considering site selection or type selection, it has before it the relevant racial and socio-economic information necessary for compliance with its duties under the 1964 and 1968 Civil Rights Acts." n129 Interestingly, congressional language affirmatively furthering fair housing has been one of the few race-conscious policies to remain relatively unscathed in the more recent proliferation of "reverse discrimination" lawsuits in the domains of education, public contracting, employment, and voting rights. n130 Rather, in recent litigation, section 3608 has provided a mechanism to address entrenched residential segregation and provide a legal hook for promoting racially inclusive housing opportunities. n131
Language in the education context might read as follows: Within the limitations set forth by the Constitution, this Act shall require states to affirmatively [*108] further the compelling government interest in alleviating racial isolation in the provision of public education. While requiring states to "affirmatively further" racially integrated education is a worthy goal, it will need strong enforcement language to work effectively. In addition, clear statutory language conferring rulemaking and regulatory authority to an administrative agency may help insulate legislation from judicial attack. n132 Such enforcement, I suggest, should go beyond requiring integrative efforts as a precondition of the receipt of federal funds by states. Rather, such legislation should explicitly include a private right of action for parties to sue for equitable relief if states fail to take measures to affirmatively reduce racial isolation in schools. n133 Corrective legislation addressing the ability of private parties to bring claims offers an important means of ensuring those [*109] who have been harmed by persistent racial isolation have meaningful constitutional protection. n134 Such a statutory scheme should work in conjunction with existing civil rights legislation under Titles IV and VI of the 1964 Civil Rights Act. As Title VI has done, the proposed scheme could empower an administrative body such as theOffice for Civil Rights in theDepartment of Education or an independent agency directed by a career employee, rather than a political appointee, to provide federal oversight and enforcement. This body could investigate and resolve complaints. Moreover, legislation could authorize action by the Department of Justice for those states that refuse compliance. Language might also allow for liability on the part of the Department of Education if the Department knows of states' failure to comply and has made no effort to require compliance.
B. Data Collection: Creating a Legislative Record and a National Repository
Any proposed legislation to address structural racial inequality in education should includedeliberations that both document the current racial inequities in educational opportunity andprovide useful data that may assist states and localities in fostering racially inclusive educational opportunities. The post-Boerne decisions striking down congressional enforcement legislation stressed the critical role of congressional fact-finding in safeguarding legislation from judicial scrutiny. n135 In Garrett, for example, the Rehnquist Court struck down the application of a provision of the ADA to state actors in part due to insufficient legislative findings. n136 Rather than assuming the existence of state discrimination against disabled persons, the Court held that Congress must first "identif[y] a history and pattern of unconstitutional state transgressions." n137 Similarly, in Kimel, the Court stressed the importance [*110] of a strong evidentiary record supporting the legislation. n138 The Court found a constitutional right to enact enforcement legislation prohibiting age discrimination only if Congress can identify "any pattern of age discrimination by the States" that reaches "the level of a constitutional violation." n139 According to dicta in Lane, such findings need not be limited to state discrimination and may include evidence of private party conduct. n140
When congressional enforcement legislation protects suspect classes or a fundamental right, however, the Court has held that such deliberations need not take the form of formal congressional hearings from which findings are officially compiled. Rather, Congress may create a task force that is charged with receiving and compiling evidence on racial isolation and inequality in education. The Supreme Court has accepted such evidence as valid congressional findings when reviewing and upholding congressional enforcement legislation in the wake of Boerne. n141
Ultimately, Congress may serve a key function by creating and housing a national repository of critical data on the pervasiveness and permutations of racial and socioeconomic segregation in public education. By providing examples of successful integration policies that have been used in school districts throughout the country, such a repository may turn out to be one of the most helpful and least controversial aspects of fostering racial inclusion in public education. An interesting analogy may be the use of racial disparity studies in the public contracting context. In the wake of the 1989 Supreme Court decision in Richmond v. Croson, n142 striking down Richmond, Virginia's affirmative action policy in public contracting, various state and local governments as well as the United States Commission for Civil Rights have commissioned studies to document continued racial disparities in public employment and contracting. n143 Such studies help to satisfy the Court's requirement that existing race-conscious policies in public employment and contracting remedy the present effects of past, particularized discrimination in specific geographic regions and industries. n144
In this vein, one could also look to the fair housing context for a model to address some of the evidentiary considerations. The components of "affirmatively furthering" fair housing legislation that may be replicated in the education context include (1) conducting analysis to identify the impediments to racially integrated education within jurisdictions; (2) taking appropriate actions to overcome the effects of the impediments identified through [*111] analysis; and (3) maintaining records reflecting analysis and actions taken in this regard. n145 Such a model led to the settlement of litigation in Westchester County, New York, where HUD alleged that the County failed to affirmatively further fair housing by concentrating government-funded housing developments in low-income and minority communities. n146 Under the settlement negotiation, the County must build affordable housing in more affluent areas. n147
Moreover, such data collection serves the key function of elucidating the benefits of racially integrated education. Social science evidence supporting racial integration in education has detailed the democracy-reinforcing benefits of racially integrated educational environments. n148 This evidence can be helpful in researching and documenting effective integration policies at the federal level. Data collection should include evidence of creative racially inclusive policies that have been successfully used by districts. A number of school districts throughout the country have created or maintained policies aimed at fostering racial and socioeconomic diversity in schools. n149 Jefferson County, Kentucky, which encompasses the city of Louisville, still considers income, place of residence, and race and ethnicity when assigning students to schools; however, its consideration of race is "global," in that it eschews individual classification in favor of census tract data. n150 In northern California, the Berkeley Unified School District considers several variables in granting school choice, including race, socioeconomic status, geography, and linguistics. n151 Again, the Berkeley example uses global policies that do not allocate benefits and burdens on the basis of individual racial classification. n152 Such examples show that there are communities [*112] who desire the ability to implement integration plans, so it is imperative to find avenues of support for such efforts.
Congressional legislation should also fund research, development, and policy replication to preserve and strengthen federal, state, and local efforts to protect equal access to educational opportunities. Such funding would include providing technical assistance to localities devising programs to alleviate racial disparities, which would allow flexibility in fashioning the best remedies for a particular locale. Recently, Congress began funding demonstration projects in a number of school districts. n153 Funding for research and replication grants could further be utilized to assist those districts with the most persistent racial isolation and largest disparity issues. In addition, grants might fund research that will show best practices in reducing racial isolation and disparities. Such funding for research and development could help fuel improvement by facilitating the replication of successful programs. Indeed, a critical role of federal legislative involvement in this arena is to educate the public and facilitate flexible, holistic, and varied race-conscious and race-neutral measures. The benefit of proposed replication grants is that such grants may encourage school diversity by helping those districts that voluntarily adopt carefully tailored race-conscious measures to promote the educational, social, and democratic benefits of racially and ethnically diverse classrooms. The aim would be to allow local discretion in collaborating to determine optimal ways to increase racial inclusion in local school districts. As such, legislation should give jurisdictions the flexibility to choose one mode of inclusion over another. This would allow for more nuanced and holistic ways of operating effectively.
In addition, such legislation should take account of the increased political feasibility of "global" policies designed to foster racial inclusion while refraining from classifying or assigning individual students on the basis of their race. For example, in his pivotal concurrence in Parents Involved, Justice Kennedy talked about the necessity of race-conscious measures to alleviate racial isolation and proffered generalized race-conscious policy options that do not categorize individual students based on race. n154 Significantly, Kennedy eschewed individualized racial classifications, even though they have been the mainstay remedy for de jure segregation. n155 Kennedy championed policies that may be neutral on their face, though developed out of a desire to increase racial inclusion. n156 These included strategic site selection of new schools, targeted student and faculty recruitment, and drawing attendance zone lines to maximize racial integration. n157 Kennedy reasoned that such facially neutral, racially motivated plans may not even trigger strict [*113] scrutiny. n158 Legislation that calls for "race-conscious," "race-neutral," or "facially neutral yet racially motivated" measures or uses race on a "global" level, while refraining from individualized racial classifications, has tremendous import for purposes of constitutional endurance. n159 Moreover, Congress may cull evidence to support the use of additional race-conscious measures over measures that are facially neutral.
C. Furthering a Principle of Shared Burden
Such proposed legislation should also further the principle of "shared burden"--combining flexibility and choice to maximize benefits and decrease burdens for all. For example, models that foster increased racial and economic integration between city and suburban districts may include structures to minimize inner-city fiscal burdens and potential overcrowding in suburban schools. Policies might include the provision of transportation and construction funding to suburban schools, while also increasing magnet school funding for inner-city schools. n160 Such programs work best when implemented in the earliest years of education. The flexibility of these programs might include increased funding for transportation and creation of experimental districts. Obviously, there are myriad considerations regarding the scope of legislation of this kind. For instance, placing a premium on choice and flexibility in this context may raise concerns regarding the effectiveness of the proposed requirements. In addition, specific attention to racial, socioeconomic and spatial characteristics of school districts and regions is critical to facilitating truly effective reform. The key factor in such policy considerations is grounding them in the tenets of structural disparities rather than focusing on intentional racial discrimination. In this vein, one might look to examples of existing measures used to identify sources of intractable racial inequality and lack of opportunity. Such examples include "racial impact statements" conducted by some state governments prior to engaging in new construction projects or social initiatives. Similar to fiscal and environmental impact statements, such assessments are viewed as responsible measures to minimize the burden of new initiatives. n161
Given its unique position in our national landscape, it is no wonder that scholars have long argued about the essential role of Congress in constitutional interpretations of civil rights norms. The complicated tapestry of systemic racial, economic, and demographic factors that have contributed to sustained racial isolation in education necessitate effective and nuanced solutions that emanate from policy reform rather than court-ordered redress. Congressional enforcement power is, at its core, a mechanism for ensuring that the promise of equality is realized for all. One of the more hopeful and substantive paths for addressing racial segregation and isolation in American schools and their attendant inequities may be in capitalizing on Congress's significant enforcement power under Section 5 of the Fourteenth Amendment to consciously create a remedy for twenty-first century structural ills.

We are only responsible for whether the plan itself is a moral action

Harris, 8
**PIA = Principle of Intervening Action
(Alex, J.D. Stanford University, Harvard University Bachelors (magna cum laude), Practicing Appellate and Constitutional Law at Gibson, Dunn & Crutcher LLP, former Adjunct Analyst at The Competitive Enterprise Institute, “Philosopher's Corner: The Principle of Intervening Action”, https://cei.org/blog/philosophers-corner-principle-intervening-action, August 15, 2008, ak.)
Gewirth takes the position that we are solely responsible for the morality of our own actions in two senses. First, only we are responsible for the acts we commit, even if someone else's action caused us to act as we did. (For example, if a woman's husband cheated on her and she, upon finding out, grew enraged and killed his lover, she - not he - would bear sole responsibility.) Second, we are only responsible for our own actions, even if they lead to other actions. Thus, we have a preeminent duty to never act immorally, even if doing so would preclude others from taking even more immoral actions. Gewirth contends that never violating the negative rights of another "is an obligation so fundamental that it cannot be overridden even to prevent evil consequences from befalling some persons." He clarifies with an example. Imagine that a group of terrorists kidnaps a woman and offers her son a choice: he must torture his mother or they will blow up a city with a nuclear weapon. Gewirth argues that the son has a primary duty to not violate the rights of his mother, whereas he is not the actor who is blowing up the city - the terrorists are the moral agents responsible for that action, not the son. If the son had the choice, he would pick neither. His duty is to never violate rights; the only way to fulfill this is to not torture his mother. Gewirth argues: "It would be unjustified to violate the mother's right to life in order to protect the rights to life of the many other residents of the city. For rights cannot be justifiably protected by violating another right." PIA is the only consistent, justifiable moral theory of consequences. First, one should note that only PIA sets a non-arbitrary limit on the string of effects that can factor into the moral calculation. PIA says that no consequences of other actions can count; the only other non-arbitrary standard says that all consequences in the chain must count. One cannot claim that I am responsible for only, say, the first four other actions resulting from my action. One must either consider only my actions or all resulting actions. Thus, if the destruction of the city by terrorists actually ended up preventing more rights violations by, say, staving off a Malthusian population crunch that would result in mass starvation and world war, then the consequentialist position has to endorse the terrorists' action. Consequentialists have to count every effect in the chain, even in the absurdly far-off future, to determine whether an action is moral. This fact, of course, does not by itself constitute a reason to reject consequentialism in favor of PIA, but it does suggest that PIA is the only reasonable interpretation of the requirement of non-consequentialism. It also suggests an implausible feature of consequentialism. I went on to demonstrate how the libertarian principle of self-ownership supports PIA and why people cannot be responsible for all effects of their actions: Since we are born owning ourselves and nothing else, controlling our mind and body and no one else's, it makes perfect sense that we should be responsible for only the actions that we ourselves commit. Some could argue that we should be responsible for the results of these actions. PIA states that we are. If a person gets a wrecking ball and knocks over a building, which then falls and crushes twenty people, the person is to some degree responsible for those results. But this is not the case if someone else's action intervenes, because another moral agent is the more proximate cause of the effects; she has stepped into the line of causation to take the moral responsibility. When you act upon a rock that you hurl at an enemy's face, you are responsible for the effects of the rock for two reasons: first, you are using force upon the rock; secondly, the rock has no agency over the effects it causes. The rock, by the fact that it has no agency of its own, is merely your tool, an extension of your agency. But neither of these reasons holds for using non-coercive measures that result in a person's action. As long as one does not use coercion to compel another to commit a rights-violating action, one has not reduced that other person's agency. Possessing full agency, the person is morally responsible for the totality of her actions; thus no one else can assume any portion of that responsibility. You are not responsible for anyone else's free actions and no one else is responsible for yours. If the son were somehow partially responsible for the terrorists blowing up the city, that would necessarily diminish, by whatever fraction of responsibility the son assumed, the terrorists' responsibility for that action. They would not be wholly responsible, because the son had caused their action. But this must not be the case; the terrorists must be held totally responsiblefor the destruction of the city. Consequentialists ask, "Which set of rights-violations do you endorse: the torture of the mother, or the deaths of the millions?" Gewirth responds that PIA endorses neither. PIA gives the terrorists complete responsibility for their actions, and emphatically condemns them, in a way that no other position is capable of. Only PIA is capable of giving rights their supreme status by proclaiming that they may never be violated for any reason, including preventing future rights-violations.

The aff’s reform is good – it reverses white supremacist attitudes early only that break down social barriers later on in life

Zahler, 99- (Joanna, “Lesson in Humanity: Diversity as a Compelling State Interest in Public Education,” Boston Law Review,p. 1021-1025, July 1999, http://www.lexisnexis.com.proxy.lib.umich.edu/hottopics/lnacademic/)//funk
1. The Beneficial Long-Term Effects of Students' Exposure to Diversity in Public Schools
A substantial body of recent research indicates that a desegregated K-12 education has concrete, beneficial effects over the long term for students of all races and ethnicities. n195 The findings from numerous studies indicate that diverse, desegregated schools often serve as vehicles for breaking the cycle of racial segregation later in life. n196 Amy Stuart Wells and Robert L. Crain assembled findings from twenty-one of the most substantial studies of the long-term effects of school desegregation. n197 Due to the ambiguous findings of the research on short-term effects of school desegregation, Wells and Crain believe researchers and policymakers should look beyond short-term effects and focus more on long-term social and economic outcomes. n198 According to Wells and Crain, school desegregation should do more than [*1022] just raise test scores -- it must break the cycle of racial segregation that leaves whites and African Americans worlds apart. n199 Wells and Crain have described the cycle of racial segregation as the "perpetuation theory," the concept that segregation tends to repeat itself across stages of the life cycle and institutions when individuals have not had sustained experiences in desegregated settings earlier in life. n200 Wells and Crain found that minority students who have not experienced the realities of desegregation regularly may overestimate the degree of overt hostility they will encounter or underestimate their skill at coping with strains in interracial situations. n201 These segregated students will most likely make choices that maintain their physical segregation when they become adults because they have never tested their racial beliefs. n202 There is evidence that African Americans who attended desegregated schools are more likely to report living in integrated neighborhoods and having white social contacts later in life. n203 A 1990 study found a positive relation between years of desegregated schooling and acceptance of residential integration for white high school seniors. n204 There is a documented tendency for all students who attend desegregated schools to be much more likely to settle in interracial neighborhoods. n205 In sum, many studies indicate that students who have experienced desegregated schooling are more likely to continue to choose desegregated contexts, both in school and in other spheres of their lives. n206 In addition to breaking cycles of racial segregation, the desegregated school experience develops students' ability to work effectively [*1023] in the context of cultural diversity. Current population trends make the acquisition of this skill an increasingly compelling aspect of children's education. n207 In their 1984 paper, Jomills Henry Braddock II, Robert L. Crain and James M. McPartland summarize the results of several national surveys and conclude that African Americans, Latino/as and white students who attended desegregated schools are more likely to work in racially-mixed workplaces than their peers who attended segregated schools. n208 Additional support for this conclusion comes from Dr. William Trent's 1991 examination of data from the 1979 cohort of the National Longitudinal Survey of Labor Force Behavior Youth Survey. n209 Trent found that desegregated schooling may not only affect one's propensity to work in racially mixed settings, but also one's reaction to the experience. n210 Specifically, Trent concluded that African-American, Latino/a, and white graduates of segregated schools perceive racially-mixed work groups as less friendly than racially-homogeneous ones, while respondents from desegregated schools make much less of a distinction. n211 This suggests, Trent concluded, that a desegregated school experience can have far-reaching effects in a number of different contexts. n212 For example, in the employment arena, a desegregated school experience can reduce negative feelings toward co-workers of other ethnic groups. n213 A study conducted by Braddock and McPartland further suggests that high school desegregation appears to promote more positive perceptions and social contacts among African Americans and whites in racially heterogeneous work groups. n214 Braddock and McPartland found that earlier experiences of African Americans in desegregated settings, such as those in schools, help to break down social barriers by creating more accurate and positive expectations of white reactions, by building confidence in one's ability to succeed in racially-mixed environments and by providing practice to deal with the strains caused [*1024] by cross-racial contacts. n215 Because of this early experience in a desegregated setting, one would expect less avoidance or withdrawal from desegregated experiences later in life. n216 Thus, if cross-racial relationships in desegregated schools reduce white students' negative racial stereotypes and fears of hostile reactions in interracial situations, then these white students will be less resistant to admitting African Americans into co-worker friendship groups as adults. n217 Regarding the long-term impact of desegregation on white students, two studies demonstrated that the racial composition of students' high school or college influences the likelihood that they will work in a desegregated setting later in life. n218 This finding may stem from the fact that whites in desegregated schools frequently show a decrease in their often initially high levels of fear and avoidance of African Americans, and an increasing willingness and ability to work with African Americans. n219 With regard to African Americans in predominantly white work settings, the higher the percentage of white students in their high schools, the more they considered their white co-workers to be friendly. n220 In addition to positive occupational outcomes, a substantial body of research suggests that desegregation tends to lead to more positive intergroup attitudes. n221 Because of the pervasive residential segregation in our society, students often have their first relatively extended interracial experiences in school. n222 The growth or decrease of hostility and stereotyping may be influenced particularly by circumstances occurring at school; whether schools consciously try to influence intergroup relations, schools are extremely likely to do so in one way or another. n223 Studies have found that social barriers to interracial contact among white adults may be broken down by experiences in cross-racial situations earlier in life. n224 Research suggests that white students who have increased contact with African-American and Mexican American peers in desegregated schools develop more positive attitudes towards [*1025] members of these groups. n225 A National Opinion Research Center Survey in 1979 found that white students in desegregated school situations were more likely to report having a close African-American friend and having had African-American friends visit their homes. n226

Federal action on racial discrimination is necessary – it paved the way for previous legislation that had a lasting impact

Frankenberg 2015 – Ed.D. from Harvard University, associate professor of education and demography at the Pennsylvania State University, co-director of the Center for Education and Civil Rights (Erica Frankenberg, 12-17-2015, "ESEA and the Civil Rights Act: An Interbranch Approach to Furthering Desegregation: RSF: Vol 1, No 3," No Publication, http://www.rsfjournal.org/doi/full/10.7758/RSF.2015.1.3.02) kt
CONTEXT AND PASSAGE OF THE CIVIL RIGHTS ACT AND ESEA A decade of sluggish judicial progress in furthering desegregation after Brown suggested that segregation would not be eradicated solely through the judiciary. Yet, concerns about the proper federal role in desegregation prevented action for nearly a decade. A rapidly changing context allowed for two pieces of legislation that, when examined in tandem, affected school desegregation. The passage of the Civil Rights Act of 1964, by prohibiting federal funds from going to recipients that discriminate, removed a major impediment to passing ESEA that had doomed prior educational funding bills. Additionally, the civil rights movement more generally showed the need for the Civil Rights Act and raised awareness about inequality that provided an important rationale for targeting aid for disadvantaged students. The Civil Rights Act of 1964 A decade after the Brown decision, little progress had been made in eradicating the segregated schools in many southern states. Because Brown II in 1955 remanded segregation cases back to district courts to devise the remedy, progress towards desegregation was halting; the Court did not again issue desegregation guidance until 1968. Instead of broad desegregation guidelines, it required private resources and plaintiffs in each district to legally challenge segregation. Under the Kennedy administration, the attorney general tried to bring in the federal government by filing several desegregation suits in districts receiving federal funding but the courts did not permit them to intervene without congressional authorization. In early 1964, fewer than 20 percent of districts in the South had begun to desegregate (Orfield 1969). A U.S. Justice Department official feared that the intransigence from many states was causing the federal system to fail because it required an “endless” chain of litigation on a “case by case” approach (Marshall 1962, 6). In early 1963, desegregation action from other branches did not appear likely, but that quickly changed illustrating how popularly elected branches are more susceptible to public opinion and events, which is a benefit of involving all branches in the desegregation effort. In April 1963, President Kennedy dismissed a suggestion that federal funds to a project be cut off because funding was being distributed in a discriminatory manner. In the same month, the House summarily defeated two such amendments to educational funding bills (Orfield 1969). In May 1963, however, nonviolent civil rights demonstrations in Birmingham, Alabama, and the vicious police response to it were broadcast via television and newspapers around the country and beyond. Seeing images of the brutality of local control in Birmingham helped the country understand the dangers of unchecked localism and the need for federal action on racial discrimination at this point in time. In public opinion polls shortly after Birmingham, a majority of respondents reported that civil rights was the most pressing item on the national agenda, which was a dramatic increase from only months earlier (Klarman 2005). Dozens of bills were introduced in Congress, many of them calling for funding only desegregated districts. The Kennedy administration, sensing the policy window open for federal intervention, sent a strengthened civil rights bill with a range of proposals to demonstrate a comprehensive response to address the continued racial discrimination African Americans faced. In his June 1963 speech announcing the bill, Kennedy noted the importance of Birmingham: “The events in Birmingham and elsewhere have so increased the desires for equality that no city or state or legislative body can prudently choose to ignore them. The fires of frustration and discord are burning in every city, North and South, where legal remedies are not at hand.” With public support firmly behind civil rights, Congress was ready to show their support for civil rights and many members advocated for a bill stronger than the president's (Orfield 1969). Despite the initial support in the aftermath of Birmingham, southern congressional resistance to the proposed bill was fierce, and the debate and filibuster were lengthy. It was finally enacted on July 2, 1964. Segregation, of course, was prevalent in many aspects of public life and the Civil Rights Act of 1964 applied to areas such as voting and employment. Titles IV and VI bear directly on the desegregation of schools.† Title IV specifically pertained to schools—it commissioned the Coleman report on educational opportunity and provided for technical assistance grants and training for desegregating schools. It also allowed the U.S. attorney general to initiate lawsuits to compel desegregation in local districts, which was the Kennedy administration's school desegregation priority in drafting the legislation//. Although architects of Title IV intended for it to be applicable in both de jure and de facto segregated schools, language was added to obtain cloture on the Civil Rights Act that limited its applicability in de facto segregated schools (House of Representatives Subcommittee 1963; Bolner and Shanley 1974). Title VI permits, but does not require, cutting off funds from agencies that are found to discriminate on the basis of race, color and national origin.

Government based education reforms can transform society --- defeatist attitudes ensure the world stays the same

Glaude 16—Professor of African American Studies and Religion at Princeton and a PhD in Religion from Princeton [Eddie S., Jr., Democracy in Black: How Race Still Enslaves, p. 185-197]
  • Empirics are in the context of federal government policies – Civil Rights Act
  • Changed emerges from pressure and NEW habits
  • Changing our perception of the government pushes for legislation (women’s rights movement, shift from Regan’s anti-intervention to Bush’s heavy intervention)
  • Need to isolate areas of racial inequality in order to bring change
But Goldwater failed to realize that governmental indifference can harden hearts, and government action can create conditions that soften them. People's attitudes aren't static or untouchable. They are molded by the quality of interactions with others, and one of the great powers of government involves shaping those interactions-not determining them in any concrete sense, but defining the parameters within which people come to know each other and live together. Today, for example, most Americans don't believe women should be confined to the home raising children, or subjected to crude advances and sexist remarks by men. The women's-rights movement put pressure on the government, which in turn passed laws that helped change some of our beliefs about women. Similarly, the relative progress of the 1960s did not happen merely by using the blunt instruments of the law. Change emerged from the ways those laws, with grassroots pressure, created new patterns of interactions, and ultimately new habits. Neither Obama's election to the presidency nor my appointment as a Princeton professor would have happened were it not for these new patterns and habits. None of this happens overnight. It takes time and increasing vigilance to protect and secure change. I was talking with a dose friend and he mentioned a basic fact: that we were only fifteen years removed from the passage of the Voting Rights Act of 1965 when Ronald Reagan was elected president and Republicans began to dismantle the gains of the black freedom struggle. Civil rights legislation and the policies of the Great Society had just started to reshape our interactions when they started to be rolled back. We barely had a chance to imagine America anew-to pursue what full employment might look like, to let the abolition of the death penalty settle in, to question seriously the morality of putting people in prison cells, and to enact policies that would undo what the 1968 Kerner Commission described as "two Americas"­ before the attack on "big government" or, more precisely, the attack on racial equality was launched. The objective was to shrink the size of government ("to starve the beast") and to limit its domestic responsibilities to ensuring economic efficiency and national defense. Democrats eventually buckled, and this is the view of government, no matter who is in office, that we have today. It has become a kind of touchstone of faith among most Americans that government is wasteful and should be limited in its role-that it shouldn't intrude on our lives. Politicians aren't the only ones who hold this view. Many Americans do, too. Now we can't even imagine serious talk of things like full employment or the abolition of prisons. We have to change our view of government, especially when it comes to racial matters. Government policy ensured the vote for African Americans and dismantled legal segregation.Policy established a social safety net for the poor and elderly; it put in place the conditions for the growth of our cities. All of this didn't happen simply because of individual will or thanks to some abstract idea of America. It was tied up with our demands and expectations. Goldwater was wrong. So was Reagan. And, in many ways, so is Obama. Our racial habits are shaped by the kind of society in which we live, and our government plays a big role in shaping that societyk. As young children, our community offers us a way of seeing the world; it lets us know what is valuable and sacred, and what stands as virtuous behavior and what does not. When Michael Brown's body was left in the street for more than four hours, it sent a dear message about the value of black lives. When everything in our society says that we should be less concerned about black folk, that they are dangerous, that no specific policies can address their misery, we say to our children and to everyone else that these people are "less than"-that they fall outside of our moral concern. We say, without using the word, that they are niggers. One way to change that view is to enact policies that suggest otherwise. Or, to put it another way, to change our view of government, we must change our demands of government. For example, for the past fifty years African American unemployment has been twice that of white unemployment. The 2013 unemployment rate for African Americans stood at 13.1 percent, the highest annual black unemployment rate in more than seventy years. Social scientists do not generally agree on the causes of this trend. Some attribute it to the fact that African Americans are typically the "last hired and first fired." Others point to changes in the nature of the economy; still others point to overt racial discrimination in the labor market. No matter how we account for the numbers, the fact remains that most Americans see double-digit black unemployment as "normal." However, a large-scale, comprehensive jobs agenda with a living wage designed to put Americans, and explicitly African Americans, to work would go a long way toward uprooting the racial habits that inform such a view. It would counter the nonsense that currently stands as a reason for long-term black unemployment in public debate: black folk are lazy and don't want to work. If we hold the view that government plays a crucial role in ensuring the public good-if we believe that all Americans, no matter their race or class, can be vital contributors to our beloved community-then we reject the idea that some populations are disposable, that some people can languish in the shadows while the rest of us dance in the light. The question ''Am I my brother's or my sister's keeper?" is not just a question for the individual or a mantra to motivate the private sector. It is a question answered in the social arrangements that aim to secure the goods and values we most cherish as a community. In other words, we need an idea of government that reflects the value of all Americans, not just white Americans or a few people with a lot of money. We need government seriously committed to racial justice. As a nation, we can never pat ourselves on the back about racial matters. We have too much blood on our hands. Remembering that fact-our inheritance, as Wendell Berry said-does not amount to beating ourselves over the head, or wallowing in guilt, or trading in race cards. Remembering our national sins serves as a check and balance against national hubris. We're reminded of what we are capable of, and our eyes are trained to see that ugliness when it rears its head. But when we disremember-when we forget about the horrors of lynching, lose sight of how African Americans were locked into a dual labor market because of explicit racism, or ignore how we exported our racism around the world-we free ourselves from any sense of accountability. Concern for others and a sense of responsibility for the whole no longer matter. Cruelty and indifference become our calling cards. We have to isolate those areas in which long-standing trends of racial inequality short-circuit the life chances of African Americans. In addition to a jobs agenda, we need a comprehensive government response to the problems of public education and mass incarceration. And I do mean a government response. Private interests have overrun both areas, as privatization drives school reform (and the education of our children is lost in the boisterous battles between teachers' unions and private interests) and as big business makes enormous profits from the warehousing of black and brown people in prisons. Let's be clear: private interests or market-based strategies will not solve the problems we face as a country or bring about the kind of society we need. We have to push for massive government investment in early childhood education and in shifting the center of gravity of our society from punishment to restorative justice. We can begin to enact the latter reform by putting an end to the practice of jailing children. Full stop. We didn't jail children in the past. We don't need to now. In sum, government can help us go a long way toward uprooting racial habits with policies that support jobs with a living wage, which would help wipe out the historic double-digit gap between white and black unemployment;take an expansive approach to early childhood education, which social science research consistently says profoundly affects the life chances of black children; and dismantle the prison-industrial complex. We can no longer believe that disproportionately locking up black men and women constitutes an answer to social ills.

DeVos defers to Congress and the Courts

Green, 6/17/17 (Erica L., The New York Times, “Education Dept. Plans to Scale Back Its Civil Rights Investigations,” Factiva, JMP) *Note --- Candice E. Jackson, the acting head of the DOE’s office for civil rights**
Since her appointment as the education secretary, Ms. DeVos has come under fire from lawmakers and civil rights advocates for her remarks about the department's role in enforcing civil rights laws in the public school system.
The office is charged with enforcing legal prohibitions against discrimination by race, color, national origin, sex and disability.
Ms. DeVos has denounced discrimination in any form and has said schools that receive federal funds must follow federal laws. But she also believes in a limited federal role in education. She has signaled that her office is ''not going to be issuing any decrees'' on civil rights and that those should come from Congress or the courts.
In the memo issued last week, Ms. Jackson wrote that the department would ''robustly enforce the civil rights laws under our jurisdiction, and we will do so in a neutral, impartial manner and as efficiently as possible.''

Only the federal government can ensure local buy-in through use of the bully pulpit and media

Robinson, 16 --- Professor, University of Richmond School of Law (November 2016, Kimberly Jenkins Robinson, Harvard Law Review, “FISHER'S CAUTIONARY TALE AND THE URGENT NEED FOR EQUAL ACCESS TO AN EXCELLENT EDUCATION,” 130 Harv. L. Rev. 185, Lexis-Nexis Academic, JMP)
A. Embracing a Comprehensive Federal Response to the Opportunity and Achievement Gaps
The federal government must establish equal access to an excellent education as an urgent national priority. n261 This goal insists that educational opportunity be distributed based on both student needs and the common pursuit of excellence for all children in the United States, rather than based on zip code, class, or race. n262 All children deserve no less than equal access to an excellent education that prepares them to succeed in postsecondary education or a career and fully nurtures their abilities. n263 The federal government is well equipped to prioritize educational excellence and equity through the use of the bully pulpit [*227] and multimedia outlets that call attention to this issue. n264 Historically, the federal government has demonstrated its capacity to emphasize the importance of education reform to the nation, including during the adoption of the Elementary and Secondary Education Act of 1965 n265 and the No Child Left Behind Act of 2001 n266 (NCLB). n267
To lead this effort, the federal government must draw on its strengths in education policymaking, as I have discussed in my prior scholarship proposing a theory for disrupting education federalism. n268 I define education federalism as the balance of power between the federal and state government over education that favors state autonomy over education. n269 I propose substantially shifting this balance of power in ways that enable the federal government to serve as the ultimate guarantor of equity and excellence in education. n270 To accomplish this shift, the federal government would build on such strengths as supporting and disseminating rigorous, objective research on effective state and local approaches for ensuring educational equity and excellence, as well as research on surmounting various obstacles to effective reform. n271 The federal government should also supply technical assistance to states and districts in order to assist them in executing comprehensive reform. n272 NCLB revealed that many state agencies lacked the expertise to implement substantive education reform and instead were moreaccustomed to distributing funding and monitoring how it was spent. n273 Technical assistance can expand the capacity of states and localities for reform and offer insights from other states and localities that would encourage greater efficiency in reforms. n274 Federal financial assistance also could provide both incentives and assistance for providing equal access to an excellent education. n275 Such assistance will be critical for gaining buy-in for comprehensive reform and for encouraging states and localities to raise the quality of the most disadvantaged schools rather than lowering the quality of more [*228] privileged schools. n276 My theory also adds a needed layer of federal accountability for equitable distribution of an excellent education. n277
By undertaking this substantial shift in education federalism, the United States could implement a comprehensive education reform agenda that ensures equal access to an excellent education. n278 Insistence on state and local control of education and limited federal influence has operated as a shield that has insulated states from meaningful federal accountability, despite the fact that states have refused to implement the extensive reforms that are needed to provide an excellent and equitable education to all children. n279 The nation's longstanding approach to education federalism reveals numerous shortcomings that indicate that a new approach is needed. n280 Education federalism has hindered efforts to advance equal educational opportunity. n281 For instance, education federalism drove the Court's insistence on a quick return to local control of public schools after a relatively short desegregation effort to remedy the longstanding denial and segregation of education for African American children. n282 Education federalism also limited the ability of Congress to establish a national floor for state standards or for teachers in NCLB and thus left the states free to adopt relatively weak academic and teacher-qualification standards. n283

One-shot policies won’t produce lasting change --- federal equal protection is superior --- has an inherently larger enforcement capacity to ensure continued implementation

Black, 10 --- Associate Professor of Law and Director, Education Rights Center, Howard University School of Law (March 2010, Derek, William and Mary Law Review, “UNLOCKING THE POWER OF STATE CONSTITUTIONS WITH EQUAL PROTECTION: THE FIRST STEP TOWARD EDUCATION AS A FEDERALLY PROTECTED RIGHT,” 51 Wm. & Mary L. Rev. 1343, Lexis-Nexis Academic, JMP)
For these same reasons, federal equal protection has the capacity to produce some results that have escaped litigation in state courts. Not only does the federal governmentinherently have larger enforcement capacity, its involvement could resolve the problems that have stymied some state litigation, such as separation of powers tensions between state courts and state legislatures n24 or judicial elections that cause state courts to reverse or retreat from earlier decisions. n25 Most important, there are troubling signs that [*1351] state courts may be reaching their exhaustion point and need assistance.
School finance, adequacy, and inequity cannot be resolved in a single case or year. Equity and adequacy in one year does not ensure the same the following year. Lasting success requires yearly evaluations and continued commitmentas legislatures pass new budgets and schools develop different needs. The inherent nature of litigation, both state and federal, is to resolve a finite issue and terminate. Neither litigants nor courts are designed to be perpetual monitors. n26 Yet state constitutional cases have asked this of courts. The most successful of all has been in New Jersey, which for thirty-six years has continually forced the state to meet students' needs. n27 However, this past year, for the first time, the Supreme Court of New Jersey held that the state has fulfilled its constitutional obligation, signaling that the court may withdraw from its vigilant monitoring of the state. n28 Some state courts withdrew well before New Jersey, n29 but if other currently engaged courts follow, students might see the hard fought gains of past court rulings slip away. State educational agencies are beholden to state legislatures and will be powerless to check those that might seek to shirk their duty. In short, the federal government would stand alone in its capacity, not only to monitor equity and adequacyacross time,butalso in its power to force states to act accordingly. This Article provides a viable strategy to make this federal enforcement possible.

Integrated environments also improve civic attitudes and foster a larger sense of citizenship

Wells et al 16 – Amy Wells: PHD in Education at Columbia, Lauren: PHD in sociology and education, Diana: PHD candidate in Education at Columbia
(Amy, Lauren Fox, Diana Cordova-cobo, 2/9/16, “How Racially Diverse Schools and Classrooms Can Benefit All Students”, https://tcf.org/content/report/how-racially-diverse-schools-and-classrooms-can-benefit-all-students/, MW)
Increased “Democratic Outcomes,” including Engagement in Political Issues and Participation in Democratic Processes And finally, students’ experiences in diverse classrooms can provide the kind of cross-cultural dialogue that prepares them for citizenship in a multifaceted society.33 Students develop improved civic attitudes toward democratic participation, civic behaviors such as participating in community activities, and intentions to participate in civic activities resulting from diverse learning experiences. One meta-analysis synthesized twenty-seven studies on the effects of diversity on civic engagement and concluded that college diversity experiences are, in fact, positively related to increased civic engagement. The four findings listed above are the most robust, but there is additional evidence of other positive results that flow from creating racially, ethnically, and culturally diverse learning environments for students. Research clearly and strongly supports a legal or policy argument in favor of greater student diversity on college campuses as a mechanism to potentially enhance the educational experiences of all students.34 And this is not solely the conclusion of those who study higher education. Drawing on decades of research from organizational scientists, psychologists, sociologists, economists, and demographers, an article in Scientific American argues that diversity even enhances creativityand actually encourages the search fornovel information and perspectives, leading to better decision making and problem solving. Therefore, diversity can improve the bottom line of companies and lead to unfettered discoveries and breakthrough innovations. “Even simply being exposed to diversity can change the way you think.”35

*Public schools are critical to challenge the war on education --- they are the only thing that stand between Trump and democracy’s demise

Whitaker 17 — The University of North Georgia (Westry Whitaker, “The Dying of the Light: The Cause to Illuminate in this State of Fragile Democracy” in Deconstructing the Education-Industrial Complex in the Digital Age, January 2017, accessed 7/1/2017)DGV
Giroux (2015) refers to the fact that our democracy is in a “fragile state” (p. 11). Our schools are therefore the first line of defense against tyranny of the mind. Because public schools have been tasked by our founding fathers with providing a common education to public citizens, they must be considered vital pieces of our democracy. Given the reform minded attempt to create a more corporate, commodity driven public school system modeled after Microsoft or Apple, however, perhaps we should consider the public school model envisioned by our founders as un-common. Perhaps, we should re-imagine these public spaces more effectively and more intrinsically align them with that mission to “illuminate as far as possible” the minds of all our people rather than the property owning or more contemporary enculturated elite. By re-imagining this design, we may be reminded that public schools are supposed to be bastions of a common education. As such, they should be well positioned on the front lines of the war for our minds. They should be the first place we turn in order to engage and one day eradicate systemic educational inequality, racism, repression and violence. Following the model provided by our founding fathers, we must recommit to a more constant devotion to maintain, rise up, and fight against those that work to limit our role as public intellectuals. Doing so will empower our teachers to provide our students with the tools that are needed to navigate this ever-complicated world. These are troubled times (Giroux, 2010, 2015). We look into an abyss that stares back at us; we teachers are being dared to react. Speaking toward the death of his father, Dylan Thomas (1952) wrote, “Do not go gentle into that good night”. In terms of the war on education and the newly un-common mission of the public school to illuminate the minds of all people regardless of wealth or circumstance, I ask us to reimagine this poem as a response to our role as public intellectuals: we teachers must, “Rage, rage against the dying of the light”.We must, in other words, resist pedagogies of numbness and re-commit ourselves to the historic, philosophical and political foundation, the focus and the objective of America’s public schools. In an era dominated by a constant barrage of digital information predicated by Trump twitter feeds, so called flat-Earthers, and a war on public education, we teachers must commit ourselves to brightening the darkness. The survival of our democracy depends on it.//