It seems unlikely that last week’s action by the Trump Justice Department—to rescind rules on affirmative action implemented by the Obama administration—will materially affect local school districts’ capacity to integrate K-12 schools by race. Although in 1954, the U.S. Supreme Court declared, “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” a 2007 decision written by Chief Justice John Roberts had already caused school districts to step significantly back from a commitment to racial integration in elementary and secondary schools.
Roberts’ decision in the 2007 case, Parents Involved, banned the use of race as a factor to be explicitly considered in school assignment plans unless, of course, the school district remained under court order to remedy government-imposed de jure segregation (purposely maintaining separate schools for black and white children). Now, 60 years after Brown v. Board of Education, fewer and fewer Southern school districts that explicitly maintained separate schools remain under court order.
Today, school districts attentive to school segregation have been more likely to try to create within-district, voluntary policies to mix children by race and income across the district’s schools. Like a number of school districts, Louisville (Jefferson County, Kentucky) and Seattle had been using racial balance as an explicit factor to balance school enrollment. In 2007, two lawsuits, one in Louisville and another in Seattle, were combined into the case we now know as Parents Involved. Here is the essence of Chief Justice Roberts’s decision: “The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race… The way to stop discrimination on the basis of race is to stop discrimination the basis of race.”
In a strongly worded dissent, Justice Stephen Breyer wrote: “These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation… We have approved ‘narrowly tailored’ plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even when it does not require them to do so.” “Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.”
The 2007 Supreme Court decision in Parents Involved has already had a chilling effect on school districts’ voluntary efforts to integrate their schools. Some school districts have continued to make the effort—using family income as a sort of proxy for race. Cambridge, Massachusetts is the example we read about most often.
The Washington Post‘s Nick Anderson and Moriah Balingit describe the history of race-based affirmative efforts to integrate K-12 schools since the 2007 decision. They also describe how the recent Trump Justice Department’s action to revoke Obama-era guidance may affect public school districts across the country: “Revoking the Obama-era guidance on affirmative action could affect elementary and secondary schools that have grappled with racial imbalances. In 2007, the high court sharply limited how school districts could use race in enrollment. The ruling struck down race-based policies in Seattle and Louisville. It confused school officials, who worried that their policies for assigning students ran afoul of the law. The following year, the Bush administration advised schools to use ‘race-neutral methods’ to determine where children go to school, suggesting that officials use socioeconomic status instead of race. The Obama administration in 2011 issued its guidance, which spelled out how schools could use race in enrollment policy to promote diversity and avoid isolating students of one race in a single school. The 2011 guidance sought to help school districts thread the needle when using race or other factors in enrollment policies. That guidance also cautioned school officials that they should be careful when using race and that they could do so only in limited circumstances.”
Anderson and Balingit describe the reaction of Rachel Kleinman, senior counsel for the NAACP Legal Defense Fund, to last week’s withdrawal by the Trump administration of the Obama era guidance and its return to Bush-era rules: “Rachel Kleinman… said withdrawing the guidance could deter districts from implementing policies to increase diversity. Those districts will no longer be able to rely on the Education Department, she said, to help them craft a policy that complies with the Supreme Court’s decision (in Parents Involved). Kleinman is quoted, saying the recent action of the Trump Justice Department “might chill school districts from doing anything at all.” She further explains that the reversion to the older Bush guidance “will have no impact on laws that govern school integration and admissions, nor will it affect the hundreds of schools under desegregation orders.”
Considering the current and future makeup of the U.S. Supreme Court, it is unlikely that Parents Involved will be overturned any time soon. It is therefore unlikely that school districts will be launching innovative school integration programs. That is a sad reality. Reflecting on last week’s Trump administration action to rescind Obama-era guidance on school integration and affirmative action, the Washington Post‘s Valerie Strauss quotes Richard Rothstein, whose recent book, The Color of Law, examines all sorts of government policies that have contributed over the decades to the racial segregation of our society. Rothstein, who strongly supports racial integration, believes these actions—in the Federal Housing Administration and the Veterans Administration, for example—have in reality segregated our society in ways that could, with another kind of Supreme Court, be remedied because they are examples of de jure segregation by government.
Strauss quotes a 2014 article by Rothstein in The American Prospect in which Rothstein explains why affirmative programs in public schools remain absolutely necessary to remedy the damage of slavery and Jim Crow: “Even for low-income families, other groups’ disadvantages—though serious—are not similar to those faced by African Americans. Although the number of high-poverty white communities is growing (many are rural)… poor whites are less likely to live in high poverty neighborhoods than poor blacks. Nationwide, 7 percent of poor whites live in high-poverty neighborhoods, while 23 percent of poor blacks do so. Patrick Sharkey’s Stuck in Place showed that multigenerational concentrated poverty remains an almost uniquely black phenomenon; white children in poor neighborhoods are likely to live in middle-class neighborhoods as adults, whereas black children in poor neighborhoods are likely to remain in such surroundings as adults. In other words, poor whites are more likely to be temporarily poor, while poor blacks are more likely to be permanently so…. Certainly, Hispanics suffer discrimination, some of it severe… but the undeniable hardship faced by recent, non-English speaking, unskilled, low-wage immigrants is not equivalent to blacks’ centuries of lower-caste status. The problems are different, and the remedies must also be different….”