Originally published in The American Prospect on June 28, 2017.
Wednesday marks the ten-year anniversary of legal conservatives’ last great effort to kill school integration in the Supreme Court. That effort failed—though few understood that at the time. To this day, misconceptions abound about whether voluntary school desegregation is constitutionally permitted in the United States.
The legal showdown came in a landmark decision called Parents Involved in Community Schools v. Seattle School District No. 1. Five Supreme Court justices rejected voluntary desegregation plans in Seattle and Louisville, finding it unconstitutional for school districts to rely on the race of individual students when making student assignment decisions. But, it turned out, it was the opinion of just one of those justices that really mattered.
Chief Justice John Roberts Jr. wrote a plurality opinion, co-signed by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, concluding that the districts’ race-based desegregation plans were unconstitutional violations of students’ individual rights. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote, glibly.
Justice Stephen Breyer wrote a dissent, co-signed by Justices John Stevens, Ruth Bader Ginsburg, and David Souter. The court’s four liberal judges called it “a cruel distortion of history” to compare the discrimination in 1950s Topeka, Kansas to Louisville and Seattle in 2007. The decision, they warned, was one “the court and the nation will come to regret.”
But there’s a frequently overlooked twist to the Parents Involved decision. Four justices voted broadly against race-conscious integration plans, and four voted broadly in favor of them. In the middle was Justice Anthony Kennedy, who agreed with Justice Roberts in certain respects, and with the dissenters in others. In the places where Kennedy agreed with the dissenters, he represents their fifth vote, and it’s those arguments that prevailed—not the chief justice’s.
Thus it is Kennedy’s concurring opinion that most dramatically shapes our modern legal landscape today on questions regarding school segregation. Kennedy agreed that Seattle’s and Louisville’s race-based integration plans were unconstitutional, insufficiently tailored to pass legal muster, but said his conservative colleagues were “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race” and that it was “profoundly mistaken” to conclude that states and school districts “must accept the status quo of racial isolation in schools.” Kennedy even endorsed specific strategies that he felt could be used to foster school diversity—like drawing attendance zones that take into consideration the demographics of students’ neighborhoods, and “allocating resources for special programs” such as magnet schools.
Kennedy’s concurrence included a passionate defense of the value of school integration, arguing that “[t]he nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.”
Ten years later, what happened at the Court that day is still regularly misunderstood and misrepresented. Just last week, The New York Times incorrectly stated that the Supreme Court “declared it unconstitutional to consider race as a factor when assigning students to schools.” Three months earlier, NPR wrongly claimed that the Parents Involved decision prohibits the use of race and ethnicity to foster school integration.
“To say you can’t use race after Parents Involved is really misleading, unnecessarily constraining, and may even make districts hesitant to do anything at all,” says Erica Frankenberg, an education policy researcher at Pennsylvania State University. “I think it can be a real disservice to furthering integration.”
Phil Tegeler, the executive director of the Poverty & Race Research Action Council, describes Parents Involved as a major loss for civil rights. Looking at the race of individual students to help achieve racial balance, he says, had been “a very standard, basic tool” that school districts had used to promote voluntary integration, and a strategy that had been long-used in court-ordered desegregation plans.
“But the Supreme Court’s decision does not stand for the proposition that school districts can’t think about race, or plan for racial integration,” he says.
The court’s decision initially spooked school districts that were pursuing their own voluntary integration plans, and deterred others that were considering launching their own efforts. George W. Bush’s administration also contributed to the confusion; following Parents Involved, his Department of Education posted a federal guidance suggesting only race-neutral means of pursuing integration would be legal. A coalition of educators, policy advocates, and civil rights leaders joined together in 2009 and made urging the Obama administration to take down the Bush-era guidance their first priority.
They were successful. Obama’s DOE posted a new legal guidance in 2011, affirming that “educators may permissibly consider the race of students in carefully constructed plans to promote diversity or, in K-12 education, to reduce racial isolation.” The guidance, which remains in place today, also listed specific strategies school districts could use to pursue voluntary integration.
“Getting that correct interpretation, with some real practical guidance for school districts—I can’t even emphasize how important that was,” David Tipson, the executive director of New York Appleseed, told me in 2015. “There was a very deliberate effort to misconstrue the 2007 [Supreme Court] decision and put fear into many school officials across the country. Everything we’ve been able to do to promote school integration has come in the wake of getting that new federal guidance in place.”
Over the past few years, New York City has indeed seen a flurry of unprecedentedadvocacy around school integration. Just earlier this month, Mayor Bill de Blasio introduced his administration’s most ambitious effort yet to diversify public schools. Though the mayor has plenty of critics who say his plans still don’t go far enough, few could have imagined this proposal even five years ago.
Aside from the new federal guidance and a few modest measures implemented largely at the end of Obama’s tenure, the Obama administration by and large refused to promote desegregation in the bulk of its major education initiatives. In some cases, the Obama administration even incentivized policies that exacerbated racial and economic isolation. While The New York Times just this week criticizedthe Trump administration for eliminating a small socioeconomic diversity grant program launched in the final month of Obama’s presidency, civil rights advocates generally agree that even that program was much too little, too late.
Today, some argue that in light of the political and legal landscape wrought by Parents Involved, integration advocates should focus primarily on socioeconomic integration, and keep the more polarizing discussions of race to a minimum. Yet other civil rights leaders counter that the benefits of socioeconomic integration and racial integration are not interchangeable, and that a narrow focus on socioeconomic diversity threatens to strip the desegregation movement of much of its historical and moral power. Some advocates also suspect that too many school districts now hide behind the threat of litigation to avoid actively pursuing racial integration.
“A lot of school districts are being too risk-averse, when they actually have a lot of legal latitude,” says Tegeler. “I think it’s appropriate for lawyers to advise districts to avoid looking at the race of individual students, but looking at the racial composition of neighborhoods, the combined race and poverty characteristics of census tracts—that’s completely fine.”
To figure out where school integration may go over the next few years, it helps to consider how the country has changed over the last decade. When Barack Obama was elected in 2009, many Americans took his win as a sign that America had entered some new “post-racial” age. But these delusions were largely crushed by 2014, when a wave of high-profile police shootings and the rise of the Black Lives Matter movement fundamentally challenged and changed the country’s politics and narratives around racism.
And with that, the conversation around school segregation has changed as well. Journalist Nikole Hannah-Jones reached millions of Americans in 2014 with her award-winning reporting on school segregation, and has worked determinedlysince to make the public grapple even more with the issue. Writers like Ta-Nehisi Coates and Richard Rothstein published a wave of articles (and later books) challenging how Americans think about inequality and racism, and influential academic research emerging in 2015 and 2016 strengthened the evidence base in favor of racial and economic integration.
On the political side, civil rights advocates worry about what a major expansion in school choice policies—a stated priority of Donald Trump and his education secretary Betsy DeVos—could mean for school segregation. “Any unregulated choice program has real potential for increasing segregation by race and class, in particular increasing racial isolation and poverty concentration in the schools and school districts left behind,” warns Tegeler.
In 2016, Senator Chris Murphy of Connecticut and Representative Marcia Fudge of Ohio, both Democrats, introduced the Stronger Together School Diversity Act, a $120 million effort to support voluntary integration in U.S. public schools. Though mostly symbolic, advocates expect that bill to be reintroduced this year.
On the legal side, there is likely to be an increase in state-level school desegregation lawsuits over the next few years. While winning far-reaching remedies in federal court has been much more difficult ever since the Supreme Court’s 1973 Milliken v. Bradley decision, which prevents many urban school desegregation plans from including white suburbs, states courts are under no such restriction. Legal advocates see opportunities for more state-level litigation relying on state constitutional obligations. One such lawsuit was filed in Minnesota at the end of 2015, and it’s making its way to the state’s supreme court later this year.
Civil rights advocates clearly have their work cut out for them, whether it be affirmatively furthering school integration, or preventing new kinds of school segregation. Just last week, EdBuild, an education nonprofit, released a report that found 71 U.S. communities have attempted to secede from their school districts since 2000—most of them wealthy, white communities looking to extricate themselves from poorer black and brown locales. EdBuild finds that 47 of those secessionist communities were successful.
“We’re not expecting a lot of new affirmative enforcement coming from the Trump administration, but this issue of white enclaves looking to opt out of county-wide districts, particularly in the South, it’s a very dangerous trend,” says Tegeler. “We’re really hoping that the Education and Justice Departments pay attention to this, and recognize the importance of keeping these diverse, large districts together.”
But for all the obstacles confronting a rebooted school desegregation movement, the legal path towards integration still lies mostly open. A decade ago, it was far from clear that would be the case: Part of why the erroneous, far-reaching interpretation of Parents Involved has had such staying power is because many progressives at the time expected the worst. Instead, Justice Kennedy helped keep many traditional civil rights remedies alive, and the movement has pushed forward ever since.