Interdistrict Relief and Desegregation – “private choice” theory eroding desegregation and an era of retrenchment

Interdistrict Relief and Desegregation – “private choice” theory eroding desegregation and an era of retrenchment

1. Introduction

   1. Middle 1970s, and Nixon’s appointments, as well as changing political mood of country, began to have effect.

   2. 1974 – Congress passed Equal Education Opportunities Act prohibited busing to school that wasn’t closest to residence.

   3. Decline in judicial methodology

      1. Brown, Cooper, are all examples of good judicial methodology. Only in the 1970s do we start to have poorly crafted opinions.

   4. Desegregation v. Busing; Busing as a political lightning rod

      1. When you start dealing with districts without de jure segregation, there is language in Brown, Swann, to take the courts in a more conservative direction – where interest of desegregation is only one of a number of interests that the court has to balance.

      2. There is nothing in Brown or Brown II the way Greene lays out what full compliance would look like. Greene doesn’t try to put the constitutional words of Brown in play, it just lays out an implementation strategy. Even in Brown II, there is good faith.

      3. As the action shifts away from hot spots like Little Rock, it is not surprising that the court would start to look towards limiting language – towards countervailing concerns – balancing the costs of busing against desegregation.

      4. The court never said that they were going to clearly restate Brown. When Powell says that busing is a problem, Powell is getting the politics right – Congress had passed a statute outlawing busing. Attaching whole desegregation process to busing, Powell was right in guessing how Northern communities reacted to busing – it was busing that was the lightning rod.

   5. Difference between de facto segregation and private choice

      1. Brown was unclear on telling the difference between de facto segregation and private choice.

      2. School desegregation is not the only area that is trimmed back, but is also occurring in other areas, such as employment discrimination.

      3. In 1972, the highpoint of employment discrimination is Briggs – it is no longer willing to say that in cases of factual uncertainty, we should put the thumb on the scale in the direction of intentional discrimination – assume, that unless there is strong evidence, that the reason is intentional discrimination.

   6. Timespan was too short

      1. The problem is that the timespan was so short – only about 5–7 years of real desegregation – before the court said that it had been enough time and that the intensive desegregation was no longer needed.

2. Milliken v. Bradley (1974) p. 783 – de facto discrimination has to be proved in drawing boundary lines before radical busing (from suburbs) is employed

   1. Facts

      1. District court, having found that de jure segregation existed in Detroit, entered decree that included 53 surrounding suburban districts.

      2. Although city was predominantly black and suburbs white, there was no evidence of race-dependent action (such as boundary manipulation) for segregation.

   2. Holding

      1. Scope of remedy is determined by nature and extent of constitutional violation.

      2. Before busing is done and boundaries of separate and autonomous school districts set aside, has to be shown that racially discriminatory acts of state or local school districts has been a substantial cause of inter-district segregation.

      3. Without de facto segregation – boundary lines draw due to segregationist intent, no constitutional wrong.

   3. Dissent (White) – local gov’ts entities shouldn’t be immune from inter-district remedies; not sovereign entities

      1. Constitutional violations were committed by gov’t in the past.

      2. Configuration of local gov’t units is not immune from alteration when necessary to redress constituitional violations...court has elsewhere required public bodies of state to restructure state’s political subdivision.

      3. Reynolds v. Sims: “political subdivisions of states never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate gov’t instrumentalities created by the state to assist in the carrying out of state gov’t functions.”

   4. Dissent (Marshall)

      1. States’ creation through de jure acts of segregation of growin core of all-black schools acted as magnet to attract blacks to areas served by schools and to deter them from settling in suburbs.

      2. Rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border.

      3. State must be blamed for white flight to suburbs from issuing busing only within Detroit limits – state is responsible for drawing initial boundary lines.

3. Missouri v. Jenkins (1995) p. 788 – no need for interdistrict remedy, continued disparity in test scores didn’t justify continuance of desegregation order

   1. Background

      1. MS law was for segregated public schools in Kansas City, MS. Not until 1977 that federal court ordered desegregation of public schools.

      2. In 1983, 24 schools in district had black pop of 90%; By 1993 no elementary-level student attended a school an an enrollment that was 90% of more black; middle school, percentage of students attending schools w/ black enrollment of 90% or more declines from about 45% to 22%

   2. Rhenquist Holding

      1. Ruled in favor of state on every issue

      2. SC ordered end to school desegregation

   3. Reasoning

      1. District Court’s order that attempted to attract nonminority students from outside the district was impermissible b/c there was no proof of an interdistrict violation.

         1. Social reality is that inner city schools are primarily black, while suburban schools are primarily white.

         2. Effect desegregation required interdistrict remedy.

         3. Rhenquist applied Milliken v. Bradley to conclude that interdistrict remedy was impermissible b/c there was only proof of intradistriction violation.

      2. District court lacked authority to order increase in teacher salaries. Across the board salary increase was essential to attract teachers for desegregation, but not necessary as remedy.

      3. Continued disparity in student test scores didn’t justify continuance of federal court’s desegregation order.

         1. Constitutional requires equal opportunity and not any result, so disparities in test scores were not sufficient basis for concluding that desegregation had not been complied with.

4. US v. Fordice (1992) p. 794 – desegregation at the university level

   1. MI operated 2 black regional colleges, 3 white universities, 2 white regional colleges; & 1 black university.

   2. 99% of whites were enrolled in white schools, 71% of black students attended black schools.

   3. SC ordered MI to end dual system college education – they had responsibility to remedy segregation that resulted from its actions.

   4. State constitutional duty to end segregation continues until “it eradicates policies and practices traceable to its prior de jure dual system that continues to foster segregation.”

5. Keyes v. School District #1 in CO (1973) – Absent specific laws, Ps have burden to prove intentional segregative acts affecting substantial part of school system, but once equal protection violation established, burden shifts to school to prove that it did not result in segregation; for de facto discrimination proof of discriminatory intent required – discriminatory impact not enough.

   1. Background

      1. Schools were not segregated by statute, but still segregated.

   2. Ruling

      1. “Where Ps prove that school auths have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities w/in the school system, it is only common sense to conclude that there exists a predicate for finding of the existence of a dual school system.”

      2. Once it is proved that there were segregative actions affect a significant number of students, an equal protection violation is demonstrated that justifies a systemwide federal court remedy b/c “common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions.”

      3. Finding of segregation board action creates presumption that other segregated schooling effects is not by chance.

      4. Drew distinction between de jure and de facto discrimination.

         1. When no de jure laws exist, proof of discriminatory purpose is necessary for equal protection violation; discriminatory impact is not enough.

         2. In the North, most segregation was due to residential patterns rather than laws, so this created an obstacle to desegregation.

         3. Powell – wrote dissent urging elimination between de jure and de facto discrimination.

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