‘Parents Involved,’ A Decade Later

Originally published in The American Prospect on June 28, 2017.
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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.

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Obama’s Mixed Record on School Integration

Originally published in The American Prospect on August 31, 2015.
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As Congress debates competing revisions of the No Child Left Behind Act over the next several weeks, lawmakers are unlikely to spend much time looking at the growing problem of segregated schools. Despite strong academic and civic benefits associated with integrated schooling, and a unanimous Supreme Court decision which ruled that “separate educational facilities are inherently unequal”—American public schools have resegregated quickly by race and class over the past two-and-a-half decades.

Many advocates had hoped to see the Obama administration take steps to address rising school segregation, but so far its record has not been great. While the Department of Education has paid lip service to the need to promote integrated schools, and has included modest diversity incentives within a handful of federal grants, it refused to use larger education initiatives like Race to the Top to encourage states and districts to prioritize school diversity. In some cases, the department actually pushed policies that made segregation worse.

The Obama administration came to power at an interesting time for the integration movement. With the help of Reagan-appointed judges and justices, court decisions in the 1990s absolved many local districts from their legal obligations to desegregate schools. Between 1988 and 2006, the number of black students attending majority-white schools dropped by 16 percentage points. Between 2000 and 2008, the number of schools where at least 75 percent of students qualified for free or reduced-meals—a proxy for poverty—jumped from 12 percent to 17 percent.

But many districts were also interested in racial and economic diversity, even if they weren’t legally required to promote it. And so various voluntary integration experiments began cropping up around the country. These new efforts seemed promising but quickly faced legal challenge. In a pivotal 2007 decision, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court rejected voluntarily desegregation plans in Seattle and Louisville, on the basis that their particular student assignment strategies relied too explicitly on race. But the Court did clarify that, under certain conditions, districts can use race-conscious measures to promote diversity. Justice Kennedy even endorsed specific strategies to do so, including magnet schools and interdistrict plans.

The years immediately following the Parents Involved decision sparked confusion, largely thanks to the Bush administration. While the majority of Supreme Court justices said districts could consider race in school assignments, the Bush administration posted a federal guidance that suggested only race-neutral means of pursuing integration would be legal.

In 2009, shortly after President Obama took office, a group of educators, policy advocates, and civil rights leaders came together under the banner of the National Coalition on School Diversity (NCSD) to try and push the new administration to take action.

“Our very first goal was to get the Department of Education to take down the guidance from the Bush administration, which told schools they could not promote racial and economic diversity,” said Phil Tegeler, executive director of the Poverty & Race Research Action Council and NCSD coalition member. Their efforts were ultimately successful. By December 2011, the department posted a new guidance, which affirmed the Supreme Court’s decision and listed various ways school districts could pursue voluntary integration.

Other NCSD efforts met less success. One of their primary objectives has been to get the Obama administration to prioritize school integration within their competitive federal grant programs. While Secretary of Education Arne Duncan has repeatedly said that he supports school diversity and wants to reduce racial isolation, his department has not, for the most part, translated such support into its competitive programs.

Despite NCSD’s urging, the department declined to use its largest grant, the $4 billion Race to the Top initiative, to promote racial diversity. Duncan argued that including incentives for voluntary integration would have been too difficult to get through Congress. He also said that when it comes to successful integration efforts, we can’t “force these kinds of things.”

In 2013, Richard Rothstein, a research associate at the Economic Policy Institute,responded strongly to Duncan’s arguments, pointing out that “no education secretary has been as deft as Arne Duncan in creating incentives—both carrots and sticks—to get states to follow his favored policies that are technically voluntary.” Duncan used incentives to get states to adopt Common Core standards, to promote after-school programs and early childhood education, and even within Race to the Top, incentives were used to encourage states to adopt teacher evaluation systems tied to student test scores. But in the case of school integration, Rothstein noted, suddenly Duncan sings a different tune.

“Only in this area, apparently, does Secretary Duncan believe that progress must be entirely voluntary, unforced by carrots and sticks,” Rothstein wrote. There have been plenty of opportunities to incentivize racial integration, such as rewarding states that prohibit all-white suburbs from excluding poor people through zoning ordinances, or withholding No Child Left Behind waivers from states that allow landlords to discriminate against families using federal housing vouchers. “Adoption of such ‘voluntary’ policies could make a contribution to narrowing the academic achievement gap that is so much a focus of Secretary Duncan’s rhetoric,” Rothstein said.

Despite a frustrating first term, desegregation advocates have seen some progress in the last couple years. The Department of Education recently began to include diversity as a funding priority in several of its smaller grant programs like the preschool development grants and its charter school grants; it also announced that magnet-type integration approaches are eligible for the school improvement grants (SIG) program.

While modest, these changes have led to some important new integration experiments. At the end of 2014, New York’s education commissioner, John King, helped launch a socioeconomic integration pilot program to increase student achievement using newly available federal SIG funds. King has since moved to the Department of Education, where he now serves as Arne Duncan’s senior advisor.

Other advocates have capitalized on the Department of Education’s 2011 guidance. David Tipson, executive director of New York Appleseed, says it was an absolute game-changer for his work in New York City. “Getting that correct interpretation, with some real practical guidance for school districts, I can’t even emphasize how important that was,” Tipson said. “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.” New York Appleseed, along with community stakeholders, sought to design a zoning plan that would help keep a school located within a gentrifying Brooklyn neighborhood integrated. Officials resisted at first, but they eventually relented after advocates presented them with the federal guidance. Thus at the beginning of the 2013-2014 school year, Brooklyn’s P.S. 133 became the first school in Bloomberg’s administration to foster a specific mix of students based on socioeconomic status and English proficiency. At the school’s ribbon-cutting ceremony, the city’s school chancellor said he believed their innovative admissions model could be replicated elsewhere.

While advocates of desegregation are happy to see the administration beginning to prioritize diversity within its grant programs, some feel these gestures are too little, too late.

In a letter sent to Secretary Duncan last July, NCSD noted that while the Department of Education has included preferences for diversity within some grant programs, in practice, the department has “consistently underemphasized” these incentives. Many grants still make no mention of diversity at all, and in cases where they do, officials tend to weigh other competitive priorities far more heavily, rendering the modest diversity incentives ineffective. For example, in one grant, applicants could earn an additional five points if their school was diverse, but applicants could earn twice as many bonus points if their school would serve a high-poverty student population

The only federal education initiative to significantly emphasize integration is the Magnet School Assistance Program (MSAP), a program first launched in 1976. However MSAP has limited impact today due to the small amount of federal funding it receives. Even though charters are far more likely than magnets to exacerbate segregation, the department gave MSAP $91.6 million in 2014, compared to the $248.2 million it gave the Charter Schools Program.

Advocates have not given up. Next month in D.C., the NCSD will be hosting a national two-day conference, bringing together scholars, educators, parents, students, and policymakers to continue, “building the movement for diversity, equity, and inclusion.” John King will be speaking on a panel there about the progress they’ve made, and further challenges they face on the federal level. NCSD hopes that King’s new role at the Department of Education will motivate the government to take integration efforts more seriously. The department’s press secretary, Dorie Nolt, told The American Prospect that “we’ve taken meaningful steps, and we want to do more.”

Yet this administration has fewer than 18 months left. And the next secretary of education could quite easily end even the modest progress that NCSD has fought for. “Promoting voluntary school integration is an area where the department has a lot of leeway to act on its own, in terms of trying to encourage state and local governments to prioritize diversity,” said Tegeler. “But that also means the next department has a lot of leeway to not act.”