The Spectacular Inconsistency of the Law on Choice
Educational issues in the United States often become legal issues. In a society founded by lawyers that has extremely powerful courts and strong ideologies of rights, this is not surprising. The U.S. Supreme Court has, however, taken wildly inconsistent positions on school choice, which has often resulted in confusion and erratic policy and reflects the ideological and partisan divisions within the country. Following Brown, the Supreme Court passively accepted “freedom of choice” for more than a decade, though it left segregation virtually untouched. By the middle 1960s, as the 1964 Civil Rights Act and other sweeping reforms were enacted to bring the power of the executive branch into the enforcement of desegregation, federal education officials recognized that choice plans were putting all the burden of change on nonwhite families. So they wrote civil rights protections into choice plans, telling school authorities that they would only accept plans that produced rapid gains in integration. These policies, backed by Justice Department lawsuits and the withholding of federal school funds from defiant districts, rapidly accelerated desegregation. They required, among other things, that all students be given a very clear opportunity to transfer each year, that all requests for transfer that increased integration be granted, that transfers increasing segregation be prohibited, that free transportation to receiving schools be provided, and that students be treated fairly in their schools. These requirements became standard in desegregation plans for decades to come.72 Later, similar civil rights policies were central to the magnet school movement, which emerged as a way to voluntarily integrate urban schools.
Federal education and civil rights officials and the federal courts recognized that social pressure, harassment, and other factors often limited or blocked choice, which by itself fell far short of desegregating many schools that had always been operated on a discriminatory basis, including virtually all historically black schools. In a historic unanimous decision in 1968, Green v. New Kent County, the Supreme Court ruled that choice was not enough and that far-reaching mandatory measures were essential.
“Freedom of choice” ... is only a means to a constitutionally required end—the abolition of the system of segregation and its effects. If... it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a “unitary, nonracial system.” Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to ... fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.73
The court concluded that choice could be a constitutional remedy for illegal segregation only under circumstances in which it actually worked. When it failed, as it did in the vast majority of cases, it had to be replaced by mandatory policies that produced integrated schools. The court also held in Green that choice plans that increased segregation were illegal, which often became grounds for findings by federal courts that cities in the North and the West, such as Boston, Cleveland, and Indianapolis, were violating the Constitution and had to implement district-wide desegregation plans.74
This did not mean that choice could not be used in a positive fashion. Courts approved voluntary race-conscious plans using choice in school districts that were not under court orders. Some of the earliest magnet schools were created in university communities that were voluntarily desegregating in the 1960s. The world's first touch-screen computer system, for instance, was tested in the Booker T. Washington school in Champaign, Illinois, an early illustration of the kinds of special offerings that can persuade families to make voluntary transfers. The devising and implementation of such plans had the triple advantage of taking desegregation battles out of the courts, involving educators, and enhancing local support. Early efforts of this sort appeared particularly in university communities, including Berkeley, California; Champaign, Evanston, and Urbana, Illinois; and Boston, which had a voluntary interdistrict transfer plan, Metropolitan Council for Educational Opportunity (METCO).75 Later, states such as Illinois, California, Minnesota, and Connecticut encouraged voluntary desegregation actions in school districts before those policies were dropped or gravely weakened decades after as the political tides changed.
The law consistently required systemic desegregation plans in districts with a history of discrimination until the Supreme Court's 1991 decision in the Oklahoma City v. Dowell case, which encouraged the termination of desegregation orders and did not require the maintenance of standards that would block resegregation in choice or magnet programs after a local court order ended.76 Following Dowell, districts released from court orders were free to either abandon or continue applying civil rights controls to their choice programs. Those that dropped them often experienced rapid resegregation.77 Some that maintained them were sued and lost, particularly in the Fourth Circuit Court of Appeals, which covers Maryland, Virginia, and the upper South and was the nation's most conservative appellate court in that period. In other words, race-conscious magnet plans were now being systematically attacked even when supported by local elected boards of education. The court-ordered dismantling of desegregation plans was under way, and the civil rights policies that had conditioned choice since the mid-1960s were quietly abandoned in some communities, prohibited by courts in others, and maintained elsewhere.
The Supreme Court's conservative majority, which was cutting back on desegregation and increasingly sensitive to claims that the rights of local whites were being violated, acted in the 2002 Zelman decision to address what it saw as the unfair situation of poor black children locked into Cleveland public schools (largely as a result of its 1974 decision protecting the suburbs from metropolitan desegregation plans) by authorizing vouchers for private religious schools. Few states were interested, since surveys consistently show that the large majority of Americans are satisfied with their own public schools and support public education. Conservatives next challenged the legality of civil rights enrollment controls in voluntary transfer and magnet plans. They argued that the absolute right of individuals to make choices in the education market must supersede what communities saw as the value of integrated schools.
In 2007, a transformed Supreme Court acted. Switching gears dramatically, it held in the 5-4 Parents Involved decision that the most common voluntary local desegregation efforts were no longer admirable efforts on behalf of integration but rather unconstitutional discrimination because they treated the choices of some individuals of different races differently when necessary to maintain diversity and avoid resegregation. The court now said that districts must end policies that blocked transfers or magnet applications that increased segregation, taking away a basic tool that federal civil rights officials and courts had found essential for decades.78 Choice would have to be more like the freedom of choice and open enrollment plans of the early 1960s that had failed dramatically. Even before Parents Involved, nonracial choice plans had been producing rapid resegregation in cities that had ended integration policies in their magnet schools.79 The Reagan administration's idea that taking account of race to intentionally integrate schools was just as bad as taking account of race to intentionally produce