The chief justice and three supporters basically concluded that school segregation was no longer a problem and that doing anything aimed at integrating schools, even using a choice mechanism, violated the Constitution. They discussed none of the issues that had been so central in the Green decision. Four justices on the other side disagreed strongly with both the factual and the legal conclusions. In the middle, Justice Anthony Kennedy forbade race-based assignments but recognized that integration was important for schools and hoped that limited mandatory methods—which had failed in the past—would work now. His decision included no analysis of the history of freedom of choice. His controlling opinion said there was no need to “accept the status quo of racial isolation in schools” and affirmed that “this 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. A compelling interest exists in avoiding racial isolation.”80 But he took away critical tools for doing this.
The decision held the most common forms of voluntary desegregation plans to be unconstitutional. At the same time, it authorized far-more-contentious and less-effective plans that redrew attendance boundaries and paired schools. Boundary changes and pairing involved the mandatory reassignment of certain students, something that was much more explosive than the system of parental choice that it replaced. The legal scholar James Ryan commented that “the Court's decision makes it easier legally to leave segregated schools alone than to do something about them.”81 Harvard Law Dean Martha Minow noted that it meant that school authorities could only “try to produce racially integrated schools through ... indirect means.”82 While many school systems were content to leave in place long-established and often popular magnet programs with integration policies, starting all over and trying to find an indirect and legal way to preserve some diversity was a major obstacle.
Justice John P. Stevens, the court's then-senior member, with a moderate Republican background, called the decision “a cruel irony” that took away long-accepted and workable remedies and “[rewrote] the history of one of this Court's most important decisions.” The court, he said, previously had been “more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.”83 The kinds of choice that increased segregation were now legal and the kinds that had produced integration were prohibited, and the country was to abandon the goal of Brown or continue choice programs under policies that history had shown would probably produce increased segregation and inequality among schools.
The decision assumed that something else could be found, some indirect policy that would be color-blind but create diverse schools. Whether the policies that failed across the South and in many northern cities in the 1960s can work now is an important question in this book. The evidence on this point, from both new studies and previous research, is not optimistic.
Both the complexities of the different forms of choice and the extreme inconsistency of policy and law contribute to the deep confusion about this issue. When the Supreme Court shifts 180 degrees on the basic constitutional dimensions of choice and the administration of the first African American president forcefully pursues the rapid expansion of the most segregated sector of choice schools, charters, it is hardly surprising that citizens and educators are confused. A society with little historical memory may be in the midst of repeating the mistakes that led to the Green decision while forgetting the civil rights policies that conditioned and channeled choice for generations. The fact that a one-vote majority on the Supreme Court changed these fundamental assumptions means that this may not be the last shift. A bare-majority decision facing a bitter four-justice dissent is only as secure as that fifth vote.
The Obama administration's leading civil rights agencies issued guidance letters to schools across the country in December 2011 supporting the use of a variety of strategies to achieve integrated schooling without directly assigning students to schools on the basis of their race, which the Supreme Court had prohibited. The guidance also strongly affirmed the value of integrated schooling, which the Supreme Court had also affirmed.84 This was the first major positive federal policy pronouncement on school integration since 2000 and reversed the policy of the George W. Bush administration, which had opposed any consideration of race. However, it is about purely voluntary actions by local education officials, who will still face complex challenges both in figuring out what approaches will work best given local conditions and in developing a constituency to support such a plan. The document's main importance was in telling educators both that integration is important and that the two involved central departments of the federal government, Education and Justice, will stand behind them if they take positive action to pursue integrated schools within the boundaries of the law.
Forgetting History, Repeating Old Mistakes?
The story of choice policies and the law on choice reflects the winds of political and social change in the nation. The evolution of choice as a serious component of American education began with a conservative strategy to preserve segregation and to provide an exit for white families from racially changing neighborhoods in northern cities. The Virginia voucher plan was undisguised racism. Across the South at the beginning of serious district-wide desegregation, local leaders set up “segregation academies,” often with the support of local government. There was, of course, little willingness by the whites whose children left public schools to provide tax resources to adequately support the nonwhite public schools. New private schools expanded choice for whites while denying choice for blacks and undermined the schools that were their only option. In some communities, the abandonment or closing of public schools made the constitutional rights promised by the Brown decision a dead letter.
Civil rights law transformed choice by adding policies that worked better, but it still fell far short of substantially desegregating southern schools. At the peak of the integration effort, both federal civil rights officials and the U.S. Supreme Court basically rejected even choice with civil rights policies as hopelessly inadequate and implemented mandatory desegregation. When the Supreme Court ordered the desegregation of cities and then refused to include their suburbs, the cities responded with new forms of choice—magnet schools and controlled choice plans—increasing integration with what were often desirable educational options for parents of all races. This was supported by a small federal aid program and was highly popular in many cities, though there were always questions about its reach.
As a succession of conservative administrations succeeded in limiting civil rights policies, reconstructing the Supreme Court, and eliminating the federal funds that supported desegregation strategies, the social justice and integrationist theories of choice were replaced by market theory, which emphasizes the primacy of unconstrained individual choice and ignores external constraints on choice. This theory presumes that discrimination has ended, that race-conscious policies can no longer be justified, and that the real causes of educational failure are rooted in public school bureaucracies and unions—problems that could be solved by competition from private schools or semiprivate, publicly financed charter schools. The voucher and charter movements did not explicitly reject integration, and advocates of choice said it would increase real options for segregated minority families. Choice without civil rights protections expanded rapidly in charter schools. As their number increased, their striking segregation became apparent—were we repeating the errors of freedom of choice and open enrollment policies that had failed four decades earlier?
The Supreme Court's 2007 reversal left communities where choice had produced successful desegregated schools very discouraged. Some found new successful strategies; many simply gave up. Given the close division of the court and the recurrence of some of the results of the earlier color-blind choice approaches, one wonders whether this cycle is over or whether the effects of growing resegregation will one day become the basis for a new set of demands for connecting choice with civil rights. The Obama administration's civil rights guidance could be a first step in that direction.
THIS BOOK'S CONTRIBUTION
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