Still Looking to the Future Voluntary Integration

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Still Looking to the Future:

Voluntary K-12 School Integration

NAACP Legal Defense and Educational Fund, Inc. The Civil Rights Project/Proyecto Derechos Civiles

A Manual forParents, Educators,& Advocates


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1Still Looking to the Future: Voluntary K-12 School Integration

Introduction

Chapter 1 A Brief History Of Court-Ordered School Desegregation

Chapter 2The Resegregation Crisis In Our Schools

Chapter 3The Importance Of Integrated Schools And Classrooms

Chapter 4The Legal Landscape Governing Voluntary School Integration

Chapter 5Common Methods to Promote School Integration

Chapter 6 Alternative Approaches to Promote Racial Integration: Case Studies

Chapter 7Promoting Diversity In Your Schools

Conclusion

Frequently Asked Questions

Additional Resources

Addendum: Fact Sheets

table of contents

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2 Still Looking to the Future: Voluntary K-12 School Integration

We gratefully acknowledge Nicole Dixon, Alex Elson, Smita Ghosh, Alec Karakatsanis, Vanessa Torres Hernandez, Kimberly Liu,Carmina Ocampo, and Morgan Williams for their research and editorial assistance in updating the manual.

Written by Anurima Bhargava

Erica FrankenbergChinh Q. Le

Design and LayoutKathryn Bowser

FundingFord FoundationOpen Society Institute

2008 The NAACP Legal Defense and Educational Fund, Inc. (LDF)The Civil Rights Project/Proyecto Derechos Civiles

To obtain a copy, please contact:LDF Communications Department99 Hudson Street, Suite 1600New York, NY 10013Please e-mail requests for hard copies or CDs of the manual to [email protected]

To download a copy, please visit:www.naacpldf.orgwww.civilrightsproject.ucla.edu


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Since the Supreme Courts landmark decisionin Brown v. Board of Education , parents andcommunity leaders have repeatedly petitionedcourts throughout the country, demanding that

the judiciary give life and meaning to Brown by orderingrecalcitrant school districts to dismantle their raciallysegregated school systems. In the face of great resistance,and sometimes violence, these leaders valiantly insistedthat their childrens schools act to eliminate the stubborn,persistent vestiges of racial discrimination and that we, asa country, live up to our nations highest ideals of equalityfor all.

In more recent years, again urged by parents andactivists, many school districts have recognized the valueof racial and ethnic diversity and its important influenceon educating our future citizens. A number of theseschool districts, as a result, have voluntarily adopted

policies and student assignment methods designed topromote racial integration in their schools. In other words,more and more school districts are working to further racial diversity not out of legal obligation, but of their own accord, as a core part of their educational mission.They do so in recognition of the critical role of schoolsin fostering racial and ethnic harmony and strengtheningour multiracial democracy. This development is withouta doubt an encouraging one, as communities acrossthe nation struggle to provide a high quality, inclusiveeducation for all children.

On June 28, 2007, the Supreme Court issued a muchanticipated and sharply divided 185-page ruling in twocases challenging the voluntary integration plans inSeattle, Washington and Louisville, Kentucky. A majorityof the Justices recognized the importance of diversity and

avoiding racial isolation in K-12 public schools, but theCourt struck down particular aspects of the Seattle andLouisville student assignment plans because they werenot, in its view, sufficiently well designed to achievethose goals. Significantly, while the Court placed limitson the ability of school districts to take account of race,it did notas some reportedrule out any and allconsideration of race in student assignment. In fact,a majority of Justices explicitly left the window openfor school districts to take race-conscious measures topromote diversity and avoid racial isolation in schools.

While altering the landscape of school integration, theSeattle/Louisville decision did not provide a clear set of rules and principles for school districts to follow, andcreated some confusion about what school districts andcommunities can do to promote integration in their schools.

In 2005, we issued the first edition of this Manual,entitled Looking to the Future: Voluntary K-12 SchoolIntegration. Since the Seattle/Louisville decision,we have received numerous requests for updatedinformation and guidance. This second edition of theManual is designed to provide as much informationas we now have, following the Courts ruling, on whatyouparents, students, community activists, schoolboard members, administrators, and attorneyscanand should do to promote diversity and avoid racial

isolation in your schools. The manual will help younavigate the maze of legal, political, and policy issuesthat surround your efforts.

In the following pages, you will find a brief legal historyof what have often been called court-ordered schooldesegregation cases, from Brown through the present.Next, you will learn about the disturbing trend towardschool resegregation, as well as its causes, patterns,and staggering impact.

introduction


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In the following pages you willfind information about the rich,ever-expanding body of researchregarding the many benefits of racially and ethnically diverseschools as well as the harms of racially isolated schools.

With the history, statistics, researchand trends as context, we then turnto the practical question of whatyou can do to promote integrationin the schools in your owncommunity. We begin by reviewingand discussing the Seattle/Louisvilledecision in detail and the legalconsiderations now at work whenschool districts voluntarily elect topursue diversity and avoid racialisolation in schools. Second, so thatyou get a sense of how other schoolsystems have effectively tackledthe problem, we briefly describesome common methods of studentassignment.

Third, we provide examples of school districts that are tryingto promote diversity and avoidracial isolation in schools either by taking account of factors other than race or by taking race intoaccount in a limited manner.

Finally, we conclude with someconcrete steps that you cantake to make a difference byencouraging the public schoolsin your community to promoteracial integration and implementpolicies and practices that foster positive, integrated learning

environments for all students.

In order to make this Manualreader-friendly, we havedeliberately eliminated footnotes,and instead include short Further Reading sections at the endof each chapter, to which youcan refer if you are interestedin finding out more informationabout the topics contained in the

chapter.


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A number of scholars have called Brown v.

Board of Education the most famous UnitedStates Supreme Court case in Americanhistory. Brown overturned the 1896 Plessy v.

Ferguson decision that deeply entrenched the doctrineof separate but equal. Brown broke the back of legal apartheid in Americas schools. The decisionstated for the first time that racially separate schoolswere inherently unequal and did not provide equaleducational opportunities to all students, in violationof the Equal Protection guarantees of the Fourteenth

Amendment of the U.S. Constitution.

Although an enormous legal and moral victory, theBrown decision did not require the immediate eliminationof racial segregation in our nations public schools.In fact, one year later, in a follow-up case popularlyknown as Brown II, the Supreme Court allowedracially segregated school systems to move forward indismantling their segregative practices with all deliberatespeedan infamous phrase that, for many years, meantwithout any speed or urgency at all. The Court in Brown II placed the obligation to supervise school desegregationsquarely on local federal district courts, but providedthese courts little guidance.

Despite the efforts of countless communities demandingimmediate relief in the wake of the Brown decisionoften at the risk of grave danger and violence, andmostly in the segregated South, where resistance wasgreatesta full decade passed with virtually no progressin desegregating schools. By 1963, when President JohnF. Kennedy asked Congress to pass legislation prohibiting

a brief history of court-ordered school desegregation

CHAPTER 1

Whats the difference between court-ordered school desegregation andvoluntary school integration?

Court-ordered school desegregation (sometimesjust called school desegregation) refers to thedesegregation efforts that school districts undertakebecause they have been ordered or required to doso by courts. Courts have the authority to order desegregation where there has been a history of prior racial segregation or discrimination that the U.S.Constitution or other laws and statutes require schooldistricts to redress. This chapter discusses the history of court-ordered school desegregation.

Voluntary school integration (sometimes also calledvoluntary school desegregation) usually refers tothe efforts that a school district (or region, or state)might undertake to encourage racial and ethnicdiversity in its schools absent a court order requiringit to do so. School districts usually adopt voluntaryschool integration plans or policies because theyrecognize the educational benefits that flow to their students (and, as a result, to their community) fromthe opportunity to learn in diverse classrooms, or toavoid the harms associated with racially segregated or isolated learning environments. Subsequent chaptersdiscuss voluntary school integration, and the reasonswhy school districts pursue it, in greater detail.

Whats the difference between de jure and de facto segregation?

Courts have recognized de jure segregation(segregation by law) when there is evidence of intentional acts by states or local school authorities tosegregate schools. De facto segregation results fromother forces such as housing patterns and privatediscrimination. In this manual, we use the wordresegregation to describe how students of color inpublic schools are becoming more racially isolated.

In this chapter, we discuss the history of court-orderedschool desegregation following the historic Brown v.Board of Education decision.


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racial discrimination in all programs receiving federal aid (including schools), over 98% of Southern blackstudents were still attending segregated schools.

The mid-1960s and early-1970s were a time of great change, and school desegregation finally began totake hold. Congress enacted President Kennedys proposed legislation as the Civil Rights Act of 1964, whichempowered the Department of Justice to initiate desegregation lawsuits independent of private plaintiffs and

authorized the Department of Health, Education, and Welfare to deny federal funds to segregating schooldistricts. Civil rights attorneys, working alongside these new governmental allies, focused the attention of thepublic and the federal courts on recalcitrant school districts that refused to comply with the law. The courts, inturn, responded by issuing detailed desegregation orders and then monitoring the school districts progress, or lack thereof, on a regular basis.

During this critical period, the Supreme Court issued a number of important decisionsthat gave valuable support and legitimacy to these desegregation efforts.

For instance, in Green v. CountySchool Board of New Kent County (1968), the Court defined for the first time what desegregationrequired: the elimination of alltraces of a school systems prior segregation in every facet of school operationsfrom student,faculty, and staff assignment toextracurricular activities, facilities,and transportation.Three years later, the Court ruledin Swann v. Charlotte-MecklenburgBoard of Education (1971) thatlower courts supervising thedesegregation of individual schooldistricts could order the use of transportation, or busing, to achievedesegregated student assignments.In so doing, it rejected the argumentthat formerly dual school systemshad discharged their desegregationduties by assigning students tosegregated schools that happenedto correspond with segregated

neighborhoods.Shortly thereafter, the Court decidedanother notable case, Keyes v.School District No. 1 (1973), whichextended school desegregationobligations to systems outsidethe South that had employeddiscriminatory policies. The Keyes case was also the first to order desegregation for Latino students.


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Federal district courts took guidance from theseand other Supreme Court decisions as they ordered

desegregation plans unique to the communities for whichthey were responsible.

The Supreme Courts role as a champion of schooldesegregation efforts was relatively short-lived. By themid-1970s, the Court began slowly withdrawing itssupport for school desegregation. In perhaps the mostsignificant case from this era, Milliken v. Bradley (1974),the Court dealt a serious blow to school desegregationefforts by concluding that lower courts could not order inter-district desegregation remedies that encompass

urban as well as suburban school districts without firstshowing that the suburban district (or the state) wasliable for the segregation across district boundaries. Thepractical impact of the decision was that a bright line wasestablished between city and suburban school systems,which could not be crossed in designing desegregationplans: whites, who for decades had tried to avoid thedesegregation of schools, finally had a place to go wherethey could successfully do so.

Following a period of aggressive enforcement, supportfor school desegregation from the executive branchof government began to waver as well. In the 1980s,the Reagan administration adopted a new philosophythat focused on school choicerather than on the firminsistence of compliance with court orders requiringmandatory student assignmentsto accomplish schooldesegregation. As a result, scores of school districtsabandoned busing as a remedy and began more activelyemploying strategies and tools such as magnet schoolsand controlled choice plans as the primary means of advancing desegregation. We define and discuss thesestrategies, and others, in Chapter 5.

Although the Reagan administration did manage tosucceed in winning significant modifications in a number of desegregation orders across the country, publicopinion at the time remained supportive of schooldesegregation in principle, and thus the administrationsefforts to change the entire course of desegregationlargely stalled.

In the 1990s, the Court stepped in again, and usheredin another significant shift in school desegregation

jurisprudence. Between 1991 and 1995, the SupremeCourt handed down three important decisions thatpermitted federal district courts to declare a schoolsystem unitaryi.e. that the school system would nolonger be subject to a court order to desegregateif thecourt determined that the system had done all that wasfeasible to eliminate the effects of past discrimination. Soeven if severe racial isolation or other racial disparitiesremained, a school system would be permanentlyreleased from court order if it demonstrated a goodfaith effort to desegregate, along with reasonable

compliance with prior desegregation orders for a certainperiod of time. Many advocates of school desegregationviewed these changes as a significant dilution of thedesegregation obligations the Supreme Court hadplaced on school districts in the previous decades.More importantly, these decisions essentially invitedschool districts to initiate proceedings to bring their desegregation obligations to an end.

In the twelve years since the last of that trilogy of caseswas decided, a large number of school systems havebeen declared unitary. In some instances, the schooldistrict itself sought to end federal court supervision,arguing it had met its constitutional obligations. In others,parents opposed to desegregation led the attack torelieve the school district of any continuing legal duties todesegregate, leaving the district in the awkward positionof having to defend the kinds of policies that it had,ironically, resisted implementing in prior decades. Indeed,a handful of federal courts have recently declared districtsunitary even when the school district itself argued that itsdesegregation policies were still necessary to remedy pastdiscrimination.

Once a school district has been declared unitary, it isno longer under a legal duty to continue any of thedesegregation efforts that it had undertaken in thedecades when it was under court order. The schooldistrict remains, of course, under a broad constitutionalobligation to avoid taking actions that intentionally createracially segregated and unequal schools. Yet courtspresume that the school districts actions are innocentand legal, even if they produce racially disparate results,


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unless there is evidence of intentional discrimination. The past history of segregation and desegregation is completely wiped away in the eyes of the law.

As you will see in the coming chapters, these fully discretionary,innocent and legal policies in many instances have contributed to adisturbing phenomenon of racial resegregation in our public schools,which are more racially separate now than they have been for decades.

At the same time, a unitary school districts voluntary use of raceas a factor (as it had been mandated to use in prior years) for thepurpose of stemming resegregation and promoting diversity has comeunder challenge in Louisville (as one example). Indeed, opponentsof integration claim that considering race to bring students together

violates the same constitutional provision that outlawed segregatedschools 50 years ago in Brown. The recent Seattle/Louisville decisionfrom the Supreme Court provides guidance to school districts onthese questions. But before we turn to the complex legal landscape of voluntary school integration left after the Seattle/Louisville decision,we first examine the patterns of and changes in public school studentenrollment that make up this resegregation phenomenon.

Further ReadingIrons, P. (2002). Jim Crows Children: The BrokenPromise of the Brown Decision. New York: Viking.

Kluger, R. (1975, 2004). Simple Justice: The Historyof Brown v. Board of Education and Black AmericasStruggle for Equality. New York: Vintage.

Kozol, J. (1991). Savage Inequalities: Children in Americas Schools. New York: HarperPerennial.

Orfield, G., Eaton, S. E., and the Harvard Projecton School Desegregation. (1996). DismantlingDesegregation: The Quiet Reversal of Brown v.Board of Education . New York: The New Press.

Wilkinson, J. H. III. (1979). From Brown to Bakke:The Supreme Court and School Integration: 1954-1978. New York: Oxford University Press.


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Brown v. Board of Education (1954): The Court declaressegregation in public schools unconstitutional inviolation of the Equal Protection Clause of the Fourteenth

Amendment.

Brown v. Board of Education II (1955): The Court confersupon local school authorities and district courts theresponsibility of eliminating school segregation with alldeliberate speed.

Green v. County School Board of New Kent County (1968): The Court states that remedying schoolsegregation requires the elimination of any traces of theprior racial discrimination root and branch.

Swann v. Charlotte-Mecklenburg Board of Education(1971): The Court states that federal courts have broad

authority to order desegregation remedies upon findinga constitutional violation, and that busing to achievedesegregated schools is permissible.

Keyes v. School District No. 1 (1973): The Court finds for the first time that a school district outside of the Southin this case, Denver, Coloradoeffectively operatedsegregated schools. This is also the first case explicitlyordering desegregation for Latinos.

Milliken v. Bradley (1974): The Court concludes that a

district court cannot order an inter-district desegregationremedy without first finding that there was an inter-districtconstitutional violation.

Oklahoma City Board of Education v. Dowell (1991):The Court states that a school system should be releasedfrom court supervision if it has complied in good faith

with the desegregation order for a reasonable period of time and if the traces of the prior segregation have beeneliminated to the extent practicable.

Freeman v. Pitts (1992): The Court allows incrementalrelease from court supervision over certain aspectsof a school systems operations where the system candemonstrate good faith compliance over a reasonableperiod of time, even if racial isolation or other disparitiescontinue to exist.

Missouri v. Jenkins (1995): The Court rules thatsome racial disparities, in areas such as academicachievement, are beyond the authority of federal courtsto address, reaffirming the Supreme Courts desire to endfederal court supervision and return control of schools tolocal authorities.

Parents Involved in Community Schools v. Seattle SchoolDistrict No. 1 (2007): The Court rules that school districtscan continue to take voluntary steps to promote diversityand avoid racial isolation in schools, but places limits ontheir ability to adopt measures that take account of raceto achieve those ends.

Some key Supreme Courtschool desegregation cases:

Although it never reached the Supreme Court, animportant foundation was laid for Brown in the caseof Mendez v. Westminster (1947). In Mende z, adistrict court in California held that the segregationof Latino students was a violation of Equal ProtectionClause, based on a finding that segregation in publiceducation causes a permanent badge of inferiority.The appellate court affirmed that judgment.


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RACIAL TRANSFORMATION

OF THE PUBLIC SCHOOLS

Since the late 1960s, the racial compositionof our nations public school studentshas changed dramatically. At that time,students attending U.S. public schools (and

the population of the United States in general) wereoverwhelmingly White. But that is no longer the case.Today students of color comprise over 40% of all U.S.public school students, more than twice their shareof students during the 1960s. In addition, most non-White students during the 1960s were Black; now the

population of students of color is much more racially andethnically diverse.

As shown in Figure 1 ( right), Black and Latino studentsare now more than a third of all students in publicschools. The most rapidly growing racial/ethnic group isLatinos, who have quadrupled in size from 1968 to 2003to roughly 9 million students. Asian enrollment is similarlyincreasing. As noted above, the numbers of Whitestudents decreased sharply. By 2003, there were sevenmillion fewer White public school students than therewere at the end of the 1960s, and White students madeup less than 60% of public school enrollment.

THE REALITIES OF RESEGREGATION Although the Supreme Court declared segregatedschools to be unconstitutional in 1954, the schools didnot desegregate overnight or even over the course of afew years. The slow, decades-long process set in motionby the Brown rulings is now being rapidly undone. U.S.public schools are more than a decade into a periodof rapid resegregation. The desegregation of Black

In this chapter, we discuss the changes in racial andethnic composition in U.S. public schools since theCivil Rights Era, highlighting in particular the recenttrend of resegregation.

CHAPTER 2

the resegregation crisis in our schools

Source: Frankenberg, E., Lee, C., and Orfield, G. (2003). A Multiracial Societywith Segregated Schools: Are We Losing the Dream? Cambridge, MA: The CiviRights Project. P. 24

Whites 80%Whites 58%

Blacks 14%

Blacks 17%

Latino 19%

Latino 5%

Asians/ N. Amer. 1% Asians 4% N. Amer. 1%

1968 2003

Figure 1: Percentage of Public School Enrollment by Race/Ethnicity, 1968 and 2003


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students, which increased continuously from the mid-1950s to the late 1980s, has now declined to levelsnot seen in three decades. Latinos, by contrast, have

never experienced a time of increased integrationand today are the most segregated group amongall students of color in our schools. Resegregation isoccurring at the national, regional, and district level,as discussed below.

National trendsRemarkably, almost 2.4 million studentsincludingabout one in six of both Black and Latino studentsattend hypersegregated schools in which the studentpopulation is 99-100% of color. Nearly 40% of both

Black and Latino students attend intensely segregatedschools in which the student population is between90-100% students of color; conversely, only 1% of White students attend such schools. Additionally, 72%of Black and 77% of Latino students attend schoolsin which students of color constitute a majority of thestudents (See Figure 2 ).

Although we often think of segregation in terms of Black or Latino students, Whites are the most isolatedgroup of students in the U.S. The typical White publicschool student attends a school that is nearly 80%White, which is considerably higher than their shareof the overall public school enrollment (less than60%). In other words, White students, on average,attend schools in which only one in five studentsare of another race, which conversely reduces the

opportunities for students of other races to be in schoolswith White students. Asians are the most desegregated of all students; three-fourths of students in their schools arefrom other racial/ethnic groups.

Black and Latino students are also extremely isolatedfrom students of other races, and they are particularlyisolated from Whites. Blacks and Latinos attend schoolswhere two-thirds of the students are also Black andLatino, and over half of the students in their schools arestudents of their same race. Despite earlier progress in

Figure 2: Percentage of Students in Schools Where Students of Color are aMajority, by Race, 2004-2005

50-100% students of color 90-100% students of color

9080706050403020100

WhiteBlack LatinoAsian

P e r c e n

t a g e o f

S t u d e n

t s

12

1

38 40

16

78

56

73

1968 1972 1976 1980 1984 1988 1992 1996 200

Year

Figure 3: Percentage of White Students in Schools Attended by the Typical Black Student, 1968-2005

Source: Orfield, G. and Lee, C. (2007). Historic Reversals, AcceleratingResegregation, and the Need for New Integration Strategies .The Civil RighProject/ Proyecto Derechos Civiles, UCLA.

P e r c e n

t w

h i t e s t u

d e n

t s i n s c

h o o

l o

f t y p

i c a

l b l a c k s t u

d e n

t

37

36

35

34

33

32

31

30

Source: Orfield, G. and Lee, C.(2006). Racial Transformation andthe Changing Nature of SegregationCambridge, MA: The Civil RightsProject. P. 11-12


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Another troubling trend is the consistent reversal of gainsin desegregation for Black students in the South, wheremost Black students attend school. By the late 1960s, the

South was most integrated region of the country due tocourt-ordered desegregation and federal enforcementof desegregation plans. Desegregation of Black studentsremained stable for several decades; by 1988, 43.5% of southern Black students were in majority White schools.During the 1990s, however, the proportion of Blackstudents in majority White schools in the region steadilydeclined as desegregation plans were dismantled. In2004, only 27% of southern Black students were inmajority White schools, lower than any year since 1968.

The data in Figure 5 (opposite page) demonstrate twoimportant points about desegregation:1) when a concerted effort was made todesegregate Black and White students inthe South during the mid- to late-1960s,there was major progress demonstratingthat desegregation can and hassucceeded; and 2) we are experiencing aperiod of steady increase in segregationsince the late 1980s and undoing muchof the early success that led to severaldecades of desegregated schooling for millions of students in the South.

District trendsSchool resegregation for Blacks andLatinos is a trend seen in almost everylarge school district since the mid-1980s. One reason is that public schooldistricts in many of our nations largestcities contain few White studentswithout whom even the most well-

desegregation, the percentage of White students thatattend schools with Black students, another measure of student integration, has been declining since 1988. By

this measure, the extent of racial isolation in Americasschools has not been this high since the 1960s, beforewidespread busing to promote racial integration began(See Figure 3 ).

Regional trendsThe national trend towards increasing racial isolation inschools is evident in every region of the country. MoreBlack students attended segregated schools in 2003than in 1988, when desegregation plans had beensuccessfully implemented in many districts across the

country. Latino segregation has also been increasing inevery region since the late 1960s.

In the Northeast, nearly four out of every five Blackstudents attend schools in which students of color predominate. Similarly, in the Northeast, South, andWestthe regions with the most Latino studentsalmost80% of Latino students attend such schools. Additionally,roughly half of Black students in the Northeast andMidwest attend intensely segregated schools ( See Figure 4 ).

What about segregation of EnglishLanguage Learner students?

English Language Learner (ELL) students oftenface segregation by language. English LanguageLearners (ELLs) who are Latino attend schools

where over 60% of the students are Latino,compared to the average Latino student whoattends a school where 54% of the students areLatino. By comparison, the isolation is less severefor Asian ELL students; only one-quarter of their schools, on average, are Asian.

Figure 4: Percentage of Black and Latino Students inIntensely Segregated Schools, 2003-2004

P e r c e n

t a g e o f

S t u

d e n

t s i n S c h o o

l s

T h a

t A r e

9 0 - 1

0 0 %

S t u d e n

t s o f

C o l o r

South Border Northeast Midwest West United States

Region

60

50

40

30

20

10

0

32

4042

17

51

45 46

41

30

26

38 39

Source: Orfield, G. and Lee, C. (2006). R acial Transformation and the Changing Nature of Segregation . Cambridge, MA: The Civil Rights Project. P 11-12.


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designed desegregation plans cannot create substantialintegration. While the twenty-six largest city districts enrollover one-fifth of all Black and Latino students, fewer thanone in forty White students attends these urban schools.Latino students are now more numerous than studentsof any other race or ethnicity in the largest central city

districts. These trends are cause for concern becauseurban students (who are a sizeable proportion of allBlack and Latino public school students) are unlikely tobe in schools with many White students.

Additionally, White students are isolated from other students even in districts in which White students are asmall percentage of the overall enrollment. Not only areWhites not fully exposed to the districts racial diversity,

students of other racialbackgrounds in these districtsare also extremely isolated.

In general, students of color insuburban districts are exposedto more White studentsthan their counterparts incentral city districts, althoughthere is substantial variationwithin the largest suburbandistricts. In over half of thesuburban districts with morethan 60,000 students, the

typical Black and Latinostudents attend schools that,on average, have a Whitemajority. Yet, Black and Latinostudents in these districts are

more segregated from Whites today than in the mid-1980s. In a short time span, some suburban districtshave undergone drastic racial change. These districtsare now majority students of color, similar to the urbandistricts discussed above.

Rural districts are, in general, less segregated sincethere are fewer schools available where students canenroll. In some rural areas, however, private schoolsdisproportionately enroll White students while publicschools remain overwhelmingly comprised of students of color.

Countywide districts, or those districts that contain bothcentral city and at least some part of its suburbs within

How do we think about racial categories?

We recognize that the term Asian obscures important differences among Asian/Asian American groups,including variations in immigrant status, socio-economic status background, and more. While the 2000 censusdoes provide for identification by subgroups, education data has not yet been uniformly collected in thatway, and therefore it has been largely unavailable for careful analysis. Multiracial students, including biracialstudents, are also not included here since school data has not uniformly included such racial classifications.Census data indicate multiracial youth comprise 4% of the under-18 population. The Department of Educationrecently proposed to adopt some of the Census classifications. Yet, the proposed guidelines, if implemented,would make it difficult to measure how achievement and segregation change because it would not becompatible with the current system of disaggregating data by race/ethnicity.

Source: Orfield, G. and Lee, C. (2007). Historic Reversals, Accelerating Resegregation, and the Need for New Integration Strategies .The Civil Rights Project/ Proyecto Derechos Civiles, UCLA.

Figure 5: Changes in Black/White Integration in the South, 1954-2005

% o

f A l l B l a c k

S t u

d e n

t s i n M a j o r i

t y W h i t e

S c h o o

l s

1948 1952 1956 1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 2005

50

45

40

35

30

25

20

15

10

5

Year


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one school district, have traditionally been districts inwhich there has been a high degree of racial integration.Many of these districts are located in the South and havehad stable, thorough integration for several decades.

Additionally, because many of these districts contain amajority of the metros students, they have had steadyrates of growth while maintaining a mixture of racialgroups within the district.

SEGREGATION:POVERTY, RESIDENCE AND RACE

When we talk about schools that are segregated byrace, we are also usually talking about schools that aresegregated along other dimensions as well, includingpoverty and English Language Learner status. Racialsegregation is inextricably linked to segregation bypoverty, and the racial differences in students exposureto poverty are striking. Nationally, almost twenty percentof children (including those in private schools and tooyoung to attend school) live below the poverty line. Abouthalf of all Black and Latino students attend schools inwhich three-quarters or more students are poor. Only5% of white students attend such schools. In schools of extreme poverty (where poor students constitute 90-100%of the population), 80% of the students are Black andLatino.

Another way of thinking about the relationship of race and poverty is to examine the overlap betweenconcentrations of students of color with high-povertyschools. More than three quarters of schools where 90-100% of students are Black and Latino are also high-poverty schools (See Figure 6). Only one-fifth of schoolswith less than 10% of Black and Latino students havesimilar levels of poverty. Thus, in most cases when we talkabout segregated Black and Latino schools, were alsotalking about schools with high concentrations of poor students.

There are also striking racial differences in exposure topoverty among students of different races. In 2005-06,over sixty percent of Black and Latino students attendedschools in which at least half of the students wereconsidered poor (see Figure 7). In contrast, only 21% of white and 30% of Asian students attended schools with a

majority of poor students. Similarly, small percentages of Black and Latino students attended low-poverty schools,where 0-10% of students were poor, while over one-fifth of White and Asian students attended low-povertyschools. In fact, over half of all White students attendschools in which 30% or fewer of students are poor. Thisis due in part to residential segregation by race, whichremains high in metropolitan areas around the countryand drives segregation independent of economic status.The fact that the incomes of Black and Latinos are

How do we measure povertyin schools?

Generally, most discussions of student povertyin schools use the percentage of students in theschool who receive free and/or reduced lunch.Students from families near or below the povertyline are eligible for this program. However, itis only a rough estimate of poverty and likelyunderstates the percentage of students from poor families due to the fact that sometimes eligiblestudents dont apply for the program because of stigma that may be attached (this is particularlylikely in high schools) or because a familysimmigration status, or other situations, may makethem unwilling to apply and risk governmentscrutiny.

Figure 6: Relationship between segregation by raceand poverty, 2003-04

0-10% Black and Latino students 90-100% Black and Latino students

50-100% poor25-50% poor10-25% poor0-10% poor P e r c e n

t a g e o f a

l l s t u d e n

t s o f a g

i v e n r a c e

i n s c

h o o

l100%

90%

80%

70%

60%

50%

40%

30%20%

10%

0%

15

31

23 76

61

1732

Source: Orfield, G. and Lee, C. (2006). R acial Transformation and the ChangingNature of Segregation . Cambridge, MA: The Civil Rights Project. P 31.


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lower, on average, deepens the problems of residentialsegregation by concentrating people of color who arealso poor.

Note that while race and poverty are certainly connected,they are not perfectly correlated. For example, ascompared to White purchasers of similar financial status,Blacks and Latinos buy homes in neighborhoods withhigher percentages of people of color, which contributesto continued residential patterns segregated by race,

Further Reading:Boger, J.C. and Orfield, G., eds. (2005). SchoolResegregation: Must the South Turn Back? Chapel Hill,NC: University of North Carolina Press.

Frankenberg, E. and Lee, C. (2002). Race in AmericanPublic Schools: Rapidly Resegregating School Districts .

Cambridge, MA: The Civil Rights Project.www.civilrightsproject.ucla.edu/research/deseg/reseg_schools02.php

Frankenberg, E., Lee, C., and Orfield, G. (2003). AMultiracial Society with Segregated Schools: Are WeLosing the Dream? Cambridge, MA: The Civil RightsProject.www.civilrightsproject.ucla.edu/research/reseg03/resegregation03.php

Orfield, G. and Lee, C. (2006). Racial Transformationand the Changing Nature of Segregation . Cambridge,MA: The Civil Rights Project.http://www.civilrightsproject.ucla.edu/research/deseg/deseg06.php

University of North Carolina Center for Civil Rights.(2005). The Socioeconomic Composition of The PublicSchools: A Crucial Consideration in Student AssignmentPolicy, Chapel Hill, NC.www.law.unc.edu/Centers/details.aspx?ID=390&Q=2

but not class. Further, it appears that wealthier studentschoose to attend schools other than their neighborhoodschool at a higher rate in neighborhoods with a greater

percentage of residents of color. Thus, while race andclass are often strongly linked, it seems that race is adetermining factor in school segregation beyond theinfluence of class.

The alarming crisis of deepening segregation in U.S.schools today is evident at all levels, for all students.There are also striking racial differences in exposure topoverty among students. The next chapter will explainwhat the costs of this racial segregation and povertyexposure are.

Figure 7: Exposure to Low-Poverty and High-Poverty Schools by Student Race, 2005-06

0-10% poor students 50-100% poor students

70%

60%

50%

40%

30%

20%

10%

0% 7 5

20 23

62 63

21 30

Source: Orfield, G. and Lee, C. (2007). Historic Reversals, AcceleratingResegregation, and the Need for New Integration Strategies .The Civil RightsProject/ Proyecto Derechos Civiles, UCLA.

LatinoBlack White Asian


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before, and public support for diverse, inclusive schoolsremains high. In the Seattle and Louisville cases recentlydecided by the Supreme Court, Justice Anthony Kennedyrecognized that a compelling interest exists in avoidingracial isolation, an interest that a school district, in itsdiscretion and expertise, may choose to pursue. Further,he noted that diversity was a compelling education goalfor school districts.

Similarly, a large group of academic and civic leadersfiled amicus briefs with the Supreme Court in thevoluntary integration cases in fall 2006, and 27 of thosebriefs used social science evidence. The social scienceevidence presented in the amicus briefs was analyzed bythe National Academy of Education, which concludedthat research demonstrated a number of importantbenefits of racially diverse schools.

In 2004, as the nation celebrated the fiftiethanniversary of the Brown v. Board of Education decision, many wanted to presume that large-scale racial inequality was an artifact of the past

and of little concern to us today. Yet, as seen in theprevious chapter, it is clear that segregated or near-segregated schools continue to exist, and that schoolresegregation has been on the rise since the 1980s.Public school segregation has not increased because thedesegregation effort failed or because Americans haveturned against it. In fact, there is now more information

about the benefits of diversity and integration than ever

CHAPTER 3

the importance of integrated schools and classrooms

In this chapter, we discuss the benefits of integratedschools and classrooms for students of all races,as well as the harms for students in segregatedschools.


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Why integration in thecontext of education?

More than a half century ago in Brown, theSupreme Court stated that [e]ducation is perhapsthe most important function of state and localgovernments. . . . It is required in the performanceof the most basic public responsibilities, evenservice in the armed forces. It is the very foundationof good citizenship. Today it is a principalinstrument in awakening the child to culturalvalues, in preparing him for later professionaltraining, and in helping him adjust normally to hisenvironment. The critical role education playsin our democracy was reaffirmed by the Grutter decision (2003). There, the Court acknowledgedthat education was pivotal to sustaining our political and cultural heritage with a fundamentalrole in maintaining the fabric of society and that[e]ffective participation by members of all racialand ethnic groups in the civil life of our Nation isessential if the dream of one Nation, indivisible,is to be realized. The Supreme Courts recentdecision underscoring the importance of diversity inK-12 education will be discussed in Chapter 4.

THE BENEFITS OF INTEGRATION Aside from the fact that integrated schools help toprevent harms strongly associated with segregated

learning environments, we continue to learn a great dealabout the benefits of integration for students of color aswell as for white students.

While the context and demographics of districts vary, for these benefits of integration to occur it is important tohave not only diverse schools, but diverse classroomswithin them. Weve learned that all students in raciallydiverse classrooms benefit in several ways: deeper waysof thinking, higher aspirationsboth educational andoccupational, and positive interactions with students of

other races and ethnicities. Further, communities withintegrated schools benefit in a number of important ways.

Two points are worth mentioning at the outset: First,integrated education has positive long-term benefits,which actually turn out to be more significant thanthe short-term benefits, such as higher scores onachievement tests. For example, when children fromdesegregated environments reach adulthood, they tendto live and work in more integrated settings. Second,although much of the research focuses on the benefitsfor Black students, new research is suggesting that thebenefits of racially diverse schools apply to students of all racial/ethnic backgrounds, particularly if schools arestructured to maximize these benefits.

A short-term benefit of desegregated schools that hasbeen the focus of a great deal of research is their effecton academic achievement. Research shows that Blackand Latino students perform better in integrated schoolsthan in schools with higher percentages of students of color. One reason is that desegregated schools tendto be schools with middle-class students. Decadesof research has shown that student achievement ishigher (regardless of students own class background)when students are in classes where the average socio-economic status is higherin other words, in classeswith large numbers of students from families with middle-class or higher income levels. Higher student aspirationsresulting from integrated schools have also been linkedto higher expectations of students within these schools.


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Students of all races share in the long-term benefits of integration. Students who attend more diverse schoolshave higher comfort levels with members of racial/ethnicgroups different from their own, an increased sense of civic engagement, and a greater desire to live and workin multiracial settings compared to their more segregatedpeers. Students in racially and ethnically diverse schoolsare also better able to realize the existence and effect

Students in these schools also benefit from the schoolsinformal, integrated networks, which can aid studentsin attending competitive colleges or attaining a higher-

status job, but which are simply not available even to thebest students in segregated minority schools.

All students in integrated school environments tend tohave more cross-racial friendships, which can reduceprejudice towards the friends racial group. In fact,new research indicates that racially integrated schoolsbenefit white students: White students in integratedschools exhibit more racial tolerance than their peers insegregated white environments. White students, however,are the most likely students to be isolateda fact that is

surprising to many given the relative lack of attention tosegregated white schools. Yet, due to such schools, whitestudents will lack valuable skills in living and working withpeople of other backgrounds in the increasingly diverse21st century.

Research suggests that diverse settings can reducestereotypes and promote cross-racial understandingfor students of all racial/ethnic backgrounds, which areimportant skills in our increasingly racially diverse society.This is more likely to be true when integration occurs atearlier ages as children are still in the process of formingtheir understanding and attitudes about race, unlikeadults or even college-aged students who have spentmany years internalizing racial attitudes from our still-segregated society.

What are networksand why are they important?

Networks refer to the informal connections thatexist between people, for a variety of reasons:where they live, what school they attend(ed),where they attend religious services, involvementin a particular organization, etc. These networks,according to research, have been shown to bevery important in several aspects of affecting oneslife chances. Many Whites, for example, get their jobs through these informal networks even for jobsthat never have a formal search. Other uses of networks include admission to college, particularlyselective colleges, finding housing, or knowledgeof good schools. Access to integrated, middle-class networks provides access to informationand better opportunities compared to those not inthese networks. Research has shown that one of the longer-term benefits of attending desegregatedschools is the access for minority students to thesenetworks, which offers an ability to overcomesegregated housing, educational, and jobopportunities.


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of discrimination on other students, which helps them tomake decisions that are not based on racial stereotypes.

Although stereotypes can be difficult to reverse, research

has demonstrated that positive interactions with people of different races, where all students are respected equally,help to lessen earlier prejudices.

These long-term benefits are illustrated in integrationsso-called perpetuation effects: integrated experiencespersist across time and context. Students who attenddiverse schools are more likely to live in integratedneighborhoods and choose integrated colleges andworkplaces. In turn, students who attend segregatedschools are more likely to live in

segregated environments, partially dueto the fact that they have not had theopportunity to step across the raciallines in our society and get to knowothers from different racial and ethnicbackgrounds. Attending diverse andinclusive schools can have importantimplications later in lifeand for thefuture of our society.

Diverse and integrated schools alsoproduce many other social, politicaland economic benefits to society as awhole. Among other things, integratedschools can help to stem white flightfrom schools that might otherwise bepredominantly students of color. Bystabilizing the student population anddiminishing white flight, integratedschools can help to curb residentialsegregation.

Employers benefit when the futureworkforce has been educatedin integrated schools and areexperienced in working across raciallines. By reducing the dropout rate, theeconomy benefits from the productionof more workers and fewer teenagerslikely to be involved in the criminaljustice system.

Additionally, integrated schools serve an important,basic role in a democracy by providing a place where allmembers of society can come together in one institution.

Finally, when members of the community are invested inand attending public schools, there is more support for the public school system.

THE HARMS OF SEGREGATIONWhy should we care about segregation? The publicschool segregation described in the previous chapter canhave a powerfully negative impact on students, an impact

Table 3: Graduation Rate for the 24 Largest Central City Districts, 2004-200Central City State Graduation

RatePercent on Free or

Reduced LunchPercent of Racial G50-100% Minority S

% White % Latino %

Arlington ISD TX 73.3 36.5 44 87Austin ISD TX 58.2 55.5 39 89Baltimore City Public Schools MD 34.6 71.3 59Boston Public Schools MA 57 73.4 83City of Chicago School Dist 299 IL 51.5 78.9 73Cleveland Municipal SD OH 34.1 79.2 60

Columbus City SD OH 40.9 56.9 43 7Dade County School District FL 49 63.2 99Dallas ISD TX 44.4 78.3 89 100Denver County CO 46.3 62.4 67 97Detroit City School District MI 24.9 67.9 88District of Columbia DC 58.2 61.7 62El Paso ISD TX 60.5 67.8 100 100Fort Worth ISD TX 55.5 69.4 70 9Fresno Unified CA 57.4 79.1 75 97Houston ISD TX 54.6 75.3 84 99

Los Angeles Unified CA 45.3 74.8 81Milwaukee School District WI 46.1 72.2 76New York City Public Schools NY 45.2 N/A 62Philadelphia City SD PA 49.6 71.1 66 9San Diego Unified CA 61.6 50.9 58 9Santa Ana Unified CA 61.3 77.1 65 10Tucson Unified District AZ 71.1 64.2 52

Source: NCES Common Core of Data, Public School Universe, 2003-04;EPE Research Center, available at http://mapsg.edweek.org/edweekv2/default.jsp.


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One of the common misconceptions aboutdesegregation is that it is simply aboutseating Black students next to white studentsin a classroom to improve Black studentsachievement. In terms of academicachievement, if segregation were not sostrongly associated with concentrated

poverty and a lack of educationalresources, perhaps it would not be of suchgreat concern. But while there are certainlysome academically successful segregatedminority schools across the nation withstable, committed leadership and faculty,in the vast majority of segregated schools,equal educational opportunity is elusive.Students of color in these segregatedschools are isolated not only from whitestudents, but from schools with students

from middle-class families; exposure tostudents with middle-class backgrounds is apredictor of academic success.

Schools where students of color areconcentrated tend to offer their studentsweaker academic preparation as a resultof several factors suggested by educationalresearchers. First, schools with largeconcentrations of students from poor families tend to have students who haveless skills preparation outside of school,beginning at an early age. In schools withfew white students, research has shown thatteachers tend to be less highly qualified,have fewer years of experience (whichtends to make teachers less effective), andare more likely to leave their schools thanteachers in other schools. Since teachersare one of the most important influences onstudents achievement, these trends havenegative consequences for students in theseschools.

Second, educational offerings andresources tend to be limited in theseschools, such as offering fewer advancedcourses. Third, student achievement levelsalso tend to be lower. Research suggeststhat all students in such segregated schoolsare harmed, regardless of individualracial backgroundand that the effects of segregation can be cumulative for students.

that was one factor that prompted the Supreme Court to declaresegregated schools unconstitutional in 1954. But the legal reasoningof the landmark Brown decision was also supported, in part, by socialscience evidence at that time demonstrating that segregated Black

schools caused irreparable psychological harm to the Black childrenwho attended schools that in all other tangible respects might well beequal. Social scientists also found that segregation reinforced feelingsof racial superiority among segregated white children.

Today, we continue to learn about the many ways in which whitestudents and students of color are harmed by attending segregatedschools. In our increasingly multiracial society, the isolation of whitestudents in particular does not allow them to learn from others of different backgrounds. It also makes it more difficult for them to viewpeople of color as equals, or become comfortable living and workingin racially diverse settings as adults.

Further, the isolation of students of color limits their access tointegrated networks that broaden opportunities for them, especiallyagainst the background of racial residential segregation in the UnitedStates. For example, students attending racially isolated schools areoften at a disadvantage when seeking jobs or college admission, evenif they have been academically successful, because of their schoolsreputation and lack of alumni or teacher networks that could havehelped them to take advantage of post-secondary opportunities.


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city districts have more than half of their students comingfrom families at or below the poverty line.

As Table 3 shows, in all of the 24 largest urban districtsexcept two, one out of every three ninth-grade studentsdo not graduate four years later. In eleven of thesedistricts, the majority of students do not graduate in four yearsand in Detroit, only one in four ninth gradersgraduate four years later.

To be sure, there are numerous examples of high qualitysuccessful schools that predominantly, if not exclusively,serve students of color. Yet, decades of experience haveshown that separate (segregated) institutions of anykind are rarely equal in quality and opportunity to thoseattended by the majority, or privileged, segment of our population. Researchers continue to try to understandthe psychological and sociological effects of attendingschools with high percentages of students of color.

Given the weaker educational opportunities for studentsin most racially isolated schools, perhaps it is notsurprising that the nations high dropout rate crisis is

concentrated in segregated high schools in big cities(See Table 3 ). Sixty percent of schools where 90 or more percent are students of color have low promotingpower, which refers to on-time promotion in high schooland is an important indicator of graduation; only 6% of majority white schools have low promoting power.

Nationwide, research, using cumulative cohortpromotion data, estimates that only 56% of ninth-gradestudents graduate four years later in districts that arepredominantly students of color (compared to a national

graduation rate of 70%); this graduation rate falls to 42%for districts in which 90% or more of the students are of colorand affects students of all racial groups in suchschool systems.

In 2003-04, Black and Latino graduation rates weresubstantially lower than whites, with males of all racesgraduating at lower rates than their female counterparts.Less than half of Black males and only 52% of Latinomales graduated within four years.

In chapter 2, we noted that the nations largestcentral city school districts are heavily comprised of students of color and that students in these districts areoverwhelmingly racially isolated. In almost all of thelargest central city districts, four out of every five blackand Latino students are in schools where students of color predominate; in seven districts, a similar share of white students are also in schools where students of color are a majority. Additionally, virtually all of these large

In sum, the documented harms of segregated schoolswith high percentages of students of color include:

A tendency to be schools of concentrated poverty,1.

with weaker academic offerings, fewer resources, lessexperienced teachers, and high teacher turnover.Weaker academic preparation for students and2.

higher dropout rates.Lack of exposure to and comfort with students3.

from other races (for all students).Fewer post-secondary opportunities such as job4.

offers or college admissions because of the schoolsreputation or lack of teacher and alumni networks.


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In addition to strategies to promote racial integration, it is worthconsidering what other policies may help to improve the educationalopportunities for students in these racially isolated schools if integrationis not possible.

Further Reading:553 Social Scientists Statement : http://www.civilrightsproject.ucla.edu/research/deseg/amicus_parents_v_seatle.pdf

Frankenberg, E. and Orfield, G. (2007). Lessons in Integration:Realizing the Promise of Racial Diversity in American Schools.Charlottesville, VA: University of Virginia Press.

Orfield, G., Losen, D., Wald, J., and Swanson, C. (2004). Losing Our Future: How Minority Youth are Being Left Behind by the GraduationRate Crisis. Cambridge, MA: The Civil Rights Project at HarvardUniversity. Contributors: Advocates for Children of New York, The CivilSociety Institute. www.civilrightsproject.ucla.edu/research/dropouts/dropouts04.php

Rothstein, R. (2004). Class and Schools: Using social, economic,and educational reform to close the black-white achievement gap .Washington, D.C.: Economic Policy Institute.

Wells, A.S., et al. (2004). How Desegregation Changed Us: The Effectsof Racially Mixed Schools on Students and Society . New York: TeachersCollege. http://cms.tc.columbia.edu/i/a/782_ASWells041504.pdf


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It is important to understand the historical context andlegal implications of the decision before beginning todevelop or modify the student assignment plan in your district. That is not a simple task; as noted, the SupremeCourt issued a deeply divided and complex 185-pageruling that does not provide a clear and certain pathabout what you and your school district can do topromote diversity and avoid racial isolation in your schools. While the specific plans challenged in Seattleand Louisville were struck down as unconstitutional,many of the policies and strategies that school districtscommonly use to promote school diversity were notdirectly addressed or confronted by the Court. Thepurpose of this chapter is to provide you with as muchguidance as we can offer at this point in time.

An initial note: the Seattle/Louisville decision has beengreatly criticized for turning its back on communitiesaround the country, who have fought for decadesto promote diversity and avoid the harms of racialsegregation in their schools. The Seattle/Louisvilledecision does not, and should not, however, signal anend to efforts to bring children in communities together across lines of difference or to fight the inequities that

children almost inevitably encounter in racially isolated,under-resourced schools. What it does mean is that youand your school district must be careful as you explorethe development and adoption of a comprehensive set of integrative school policies. Absent due care, a voluntaryschool integration plan may be vulnerable to legalchallenges by those who are dissatisfied with their childsassignment or who oppose racial integration; indeed, theSeattle/Louisville cases arose out of those very situations.

And, while this Manual aims to provide information and

The evidence demonstrating the benefits of racial integration and the harms of segregationis substantial (as we saw in chapter 3). Whilethere are a number of possible strategies you

can use to promote diversity and avoid racial isolation inyour schools (as we will see in chapters 5 and 6), policiesinvolving race have always been extremely volatile oneson which Americans hold deep and passionate views.It is not surprising, then, that over time the courts haveestablished complicated legal standards for evaluatingrace-conscious policies, regardless of whether they aretainted with discrimination and prejudice or designed tofurther racial justice and integration.

On June 28, 2007, the Supreme Court issued a long-awaited and complicated decision in two cases ParentsInvolved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education challenging the voluntary integration plans in Seattle,Washington and Louisville, Kentucky. (From now on, wellrefer to the decision as the Seattle/Louisville decision).

A majority of the Justices recognized the importanceof diversity and avoiding racial isolation in K-12 public

schools, but the Court struck down particular aspectsof the Seattle and Louisville student assignment plansbecause, in the Courts view, they were not carefullydesigned to achieve those goals. While the Court placedlimits on the ability of school districts to take accountof race, it did notas has sometimes been reportedrule out any and all consideration of race in studentassignment. In fact, a majority of the Justices explicitlyleft the window open for school districts to take race-conscious measures to promote diversity and avoid racialisolation in schools.

CHAPTER 4

the legal landscapegoverning voluntary school integration


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at the requested highschool (the so-called racialtiebreaker).

In Louisville, students couldchoose to attend the schoolassigned to their neighborhoodor a school in their neighborhood cluster. Studentscould also request a transfer

to any other school in the district. The school districtcould deny the transfer because of a lack of availablespace at the school or if the transfer would further raciallysegregate the sending or receiving school based on theschool districts racial guidelines.

In both districts, the plans provided that the percentageof white/non-white (Seattle) or black/other (Louisville)students attending each school should roughly reflect theproportions of those students in the district as a whole.Seattle considered a school to be racially imbalancedif the racial composition of the school differed by morethan 15 percentage points from the racial composition

of the district as a whole. Louisvilles racial guidelinesprovided that every school should have between 15%and 50% black enrollment (approximately 34% of Louisvilles student population is black).

The Seattle/Louisville DecisionThe Justices were deeply divided in their views, andissued five separate opinions. Lawyers have andwill continue to spend time analyzing and combingthrough all five of the opinions, including the inspired,comprehensive 77-page dissent written by Justice Breyer.

For our purposes, however, there are two opinions uponwhich we will focus our attention: (1) those portions of Chief Justice Roberts opinion that are considered theopinion of the Court; and (2) Justice Kennedys opinion.

First, our discussion will be directed towards the opinionwritten by Chief Justice Roberts, which was joined byJustices Alito, Scalia, and Thomas in its entirety, andJustice Kennedy in part. The portions of Chief JusticeRoberts opinion where Justice Kennedys additional voteconstitutes the fifth vote for the majority are considered

guidanceto the extent availableon the approachesthat may be legally viable after the decision, the legallandscape will no doubt change over time, as a resultof future challenges and guidance from the courts. Theimportant point is that schools can still take carefullycrafted steps to address racial isolation and promotediversity in schools.

CASE BACKGROUND

The Seattle and LouisvilleStudent Assignment PlansThe Seattle and Louisville school districts, along withschool districts throughout the country, voluntarilyadopted modest measures to achieve racial diversity intheir schools. Both school districts sought to preserveeducational choice for parents and students andconsidered race as a factor in student assignment onlywhen schools were racially isolated. The Seattle andLouisville student assignment plans both relied on thechoices of students and parents to attend or transfer tointegrated schools. They also allowed them to choose toattend their neighborhood schools.

At issue in Seattle was its open choice system for high

schools (the elementary and middle school assignmentprocesses were not challenged). Each student in Seattlewas given the option to attend high school in any partof the district and asked to rank his or her top threechoices. For schools that were oversubscribed, studentswere assigned based on their geographic proximityto the school and whether they had siblings attendingthe school. If a school was oversubscribed and raciallyimbalanced, students were also assigned based onwhether the student would exacerbate racial segregation


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the opinion of the Court. Significantly, Justice Kennedydeclined to join certain portions of the Roberts opinion,which means that those portions do not carry a majorityof the Court, and are not the law of the land. For convenience, well refer to those portions of the opinionthat Justice Kennedy did not join as Roberts opinion.

Second, Justice Kennedy wrote a separate opinion,and much of our discussion about the impact of theSeattle/Louisville decision will draw from that opinion.We look to Justice Kennedys opinion for guidance for you and your school district because we presume thatthe programs and strategies that he endorses wouldbe supported by a majority of the Justices (e.g., JusticeKennedy and the dissenters, Justices Ginsburg, Stephens,Souter and Breyer, who would have upheld Seattle andLouisvilles plans) and be deemed constitutional.

To begin, Justice Kennedy explicitly recognized thatschool districts have a compelling interest in promotingdiversity and avoiding racial isolation in schools. As wediscuss below, that means that your school district canand indeed should continue to take steps to promote

diversity and avoid racial isolation in schools. Second,Justice Kennedy left the window open for school districtsto continue to use race-conscious measures to achieve

these interests, as long as individual students are notclassified solely by their race.

Before we discuss the race-conscious measures givensafe harbor by Justice Kennedy, we briefly describethe legal standard courts generally apply when schooldistricts take account of race in student assignment.

THE STRICT SCRUTINY STANDARDFederal courts generally apply a legal standard calledstrict scrutiny whenever a governmental body, such as apublic school board, explicitly considers or takes accountof race. In the Seattle/Louisville decision, the Court heldthat school districts must meet the strict scrutiny standardwhen individual students are classified by their race(when race is considered more broadly, such as in the

Why is Justice Kennedy getting all this attention?On the current Supreme Court, Justice Kennedyoften serves as the critical swing vote and thebridge between two camps of Justices. In the

Seattle/Louisville decision, each camp consistedof four justices: Justices Alito, Scalia and Thomasjoined in Chief Justice Roberts opinion andJustices Ginsburg, Stephens and Souter joined inJustice Breyers opinion. Justice Kennedy split histime between the two camps. Whichever campJustice Kennedy is in has a majority. With thealignment in these cases, as goes Justice Ken-nedy, so goes the Supreme Court.

Common Myths About the Decision1. School districts are prohibited fromconsidering race in assigning students to school.False. School districts can still take account of race in assigning students to schools. The Courtplaced limits, however, on when and how schooldistricts can consider the race of individualstudents.

2. School districts cannot take steps to pursuediversity and address racial isolation in their schools.False. A majority of Supreme Court justicesheld that promoting diversity and avoiding racialisolation in schools are compelling nationalinterests that school districts can and shouldpursue. Indeed, as shown by the evidencediscussed in chapter 3, it is critically important

that school districts take steps to bring childrentogether across lines of difference.

3. The Seattle/Louisville decision applies toschool districts under court order to desegregate.False. The decision does not apply to schooldistricts under court order. School districtsthat have yet to achieve unitary status (seeChapter 1) can still take race-conscious steps topromote integration and address the vestiges of segregation and discrimination in their school

system.


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drawing of attendance boundaries, a lesser standardmight applysee inset). The application of strict scrutiny,however, does not automatically mean a court willfind the use of race illegal. To assume so is a commonmisinterpretation of the law. But when a school districtdoes take account of the race of individual students andits actions are challenged in court, the district needs tosatisfy two distinct requirements under the strict scrutinytest: First, the individual racial classification must serve acompelling interest. And second, the racial classificationmust be narrowly tailored to further that compellinginterest. In short-hand, these two requirements arereferred to as the compelling interest prong and the

narrowly tailored prong of the strict scrutiny test.

If the school district fails to meet either of these twoprongs, a court will find the challenged race-based policyillegal and order the district to stop using it. On the other hand, if the school district has designed its policy or planto satisfy both of the requirements of strict scrutiny, thenthe district may continue using it as a method of fosteringdiversity and avoiding racial isolation in its schools. Ingeneral, complying with strict scrutiny is the key to alegally acceptable voluntary school integration plan.

Compelling Interest Prong A compelling interest is simply legalese for a reallygood, legally acceptable reason. When a schooldistrict uses or considers race in any way, such as inthe assignment of students to schools, the law requiresit to state a very good reason why it is conscious of race. Courts demand this justification to make sure thatthe district is not engaging in unconstitutional racialdiscrimination.

Promoting diversity and avoiding racial isolationin schools: Since Brown, the courts have frequentlydiscussedand the public is aware ofthe importanceand value of diverse learning environments in K-12public schools. As described in chapter 3, integrationcan result in educational and social benefits, both short-and long-term, to students of all racial backgrounds.Integrated schools can also have a positive impact onthe health of and public support for the school systemitself, and on the success of our broader community anddemocratic society. In addition to describing the benefitsthat flow from integration, chapter 3 also described the

What is strict scrutiny?Strict scrutiny is the name of a legal test thatcourts apply when a governmental actor, suchas a school board, decides to take account of race in its decision making for any reason. Strictscrutiny places upon the governmental actor theburden of proving two things: first, that it has acompelling interest, or a very good reason, for considering race, and second, that the manner in which it considers race is narrowly tailored,or very carefully customized, to accomplish theinterest asserted. The Supreme Court establishedthe strict scrutiny test many years ago because itbelieved that the Equal Protection Clause of theFourteenth Amendment to the U.S. Constitutionwas adopted to affirm the equality amongcitizens and therefore requires skepticism of any

distinctions based on race or ethnicity.

Less than Strict Scrutiny?In the Seattle/Louisville decision, the SupremeCourt only applied strict scrutiny to individualracial classifications, but indicated that when raceis considered more broadlyas in the drawingof school attendance boundaries or in therecruitment of certain students or faculty by race

a lesser standard might apply. As an example,taking account of the racial composition of theneighborhood where a student resides, insteadof the race of that individual student, may nottrigger strict scrutiny. The school district may thenonly need to demonstrate that the considerationof the neighborhoods racial composition isrationally related to a legitimate interest.


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by simply saying that there are educational benefitsfrom attending diverse schools or potential harmfuleffects of attending racially isolated ones. You mightvery well believe that some of these other reasonssuchas increased school safety, improved or equitablecommunity and parental support, addressing segregative

residential patterns, or the maintenance of stability withinthe school systemare as or even more compellingto you or your community. The Court appears to havecombined or folded in each of these ancillary reasons

educational harms that are too often associated withracial isolation in our schools.

In the Seattle/Louisville decision, a majority of Justicesrecognizedfor the first timecompelling interests inpromoting student diversity and avoiding racial isolationin K-12 public schools (the Supreme Court had alreadyrecognized diversity in higher education as a compellinginterest in the 2003 Grutter v. Bollinger case). As JusticeKennedy noted,

This Nation has a moral and ethical obligation tofulfill its historic commitment to creating an integrated

society that ensures equal opportunity for all of itschildren. A compelling interest exists in avoidingracial isolation, an interest that a school district, inits discretion and expertise, may choose to pursue.Likewise, a district may consider it a compellinginterest to achieve a diverse student population.

In sum: you can, and should, continue to take steps topromote diversity and/or avoid racial isolation in your schools.

Other Related Compelling Interests. School systemsthat adopt voluntary school integration plans do so for a variety of reasons, not all of which may be explained

Compelling InterestsRecognized in the DissentIn his dissenting opinion, Justice Breyer describedthe three interrelated components of schooldistricts compelling interest in adopting voluntaryintegration plans as follows: (1) historicaland remedial: an interest in setting right theconsequences of prior conditions of segregation;(2) educationalan interest in overcoming theadverse educational effects produced by andassociated with highly segregated schools;

and (3) democratican interest in producingan educational environment that reflects thatpluralistic society in which our children will live.


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with the interests in promoting diversity and avoidingracial isolation in schools, and so for efficiencys sake,we too will not independently address them here.

In the Seattle/Louisville decision, the Court reaffirmedtwo other compelling interests, but concluded thatthey did not apply in the context of K-12 voluntaryintegration efforts. The first of these two interestsin remedying the effects of past discriminationand segregationis well established in the law. Theremedial interest, as it is often called, was commonlyrecognized in the era of court-ordered desegregation.For the most part, the remedial interest can only beasserted when there has already been a judicial findingof overt racial discrimination, such as the maintenanceof segregative student assignment policies. In a unitaryschool district, however, it is difficult to prove that anypresent-day racial segregation in schools is causedby intentional discrimination or the lingering effects of prior segregation. Thus, in most of the recent voluntaryintegration cases, including in the Seattle/Louisvilledecision, courts have failed to adopt the remediationargument.

The Court also affirmed diversity in higher educationas a compelling interest, as recognized in the Courts2003 decision in the University of Michigan LawSchool case, Grutter v. Bollinger (see inset).

Narrow Tailoring ProngThe second part of the strict scrutiny test insists thatindividual racial classifications be narrowly tailoredto their stated compelling interest. This requirementis little more than a legal means-ends analysis. As

it applies to voluntary school integration plans, itdemands that a school system use individual racialclassifications to achieve its stated goals that are nomore or less intrusive than they need to be.

The Seattle and Louisville plans were struck downbecause the Court concluded that they were notnarrowly tailored. The Court identified three major problems with the consideration of race in therespective open choice and transfer provisions of theSeattle and Louisville student assignment plans.

The University of Michigan cases

In 2003, the Supreme Court decided Grutter v.Bollinger and Gratz v. Bollinger , two companioncases challenging the consideration of race incollege and university admissions. In Grutter , theCourt affirmed the consideration of race as afactor in the individualized, holistic evaluation of applicants to the University of Michigan Law School.In Gratz , the Court struck down the admissionpolicy of the University of Michigans undergraduateschool, because a certain number of pointswere automatically awarded to applicants fromunderrepresented minority groups.

In Grutter , the Court recognized the compellinginterest in promoting diversity in higher education.The Court spoke at length about the educational

benefits of diversity, noting that, among other things, it: (1) better prepares students for anincreasingly diverse workforce and society,and better prepares them as professionals,(2)promotes cross-racial understanding, helps tobreak down racial stereotypes, and enables studentsto better understand persons of different races, and(3) is justified because of the unique experience of being a racial minority in a society, like our own, inwhich race unfortunately still matters.

To be narrowly tailored to achieve the compellinginterest in diversity, a race-conscious admissionsprogram must meet the following four requirements:(1) holistic, individualized review of each applicantwhere race is used in a flexible, non-mechanicalway; (2) serious and good faith consideration of race-neutral alternatives; (3) no undue burden onnonminority applicants; and (4) periodic review of the programs continued necessity.

In the Seattle/Louisville decision, a majority of the

Justices recognized a different set of compellinginterests that school districts can pursue, but stillapplied some of the narrow tailoring factors fromthe Grutter decision. Indeed, Justice Kennedy notedthat school districts that take account of race as acomponent in student assignment should do so aspart of a nuanced, individual evaluation of schoolneeds and school characteristics informed byGrutter .


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students as either white or non-white was a bluntdistinction that the Court believed could not advanceintegration of a student population with significantnumbers of African Americans, Asian Americans, Latinos,and Native Americans. Justice Kennedy concluded thatthat: [f]ar from being narrowly tailored to its purposes,th[e Seattle] system threatens to defeat its own ends,and the school district has provided no convincingexplanation for its design. Louisville was similarlycondemned for employing a limited notion of diversity,by viewing race exclusively in terms of black/other.Certainly, this reasoning suggests that nuanced andpluralistic considerations of race will be more likely topass the Courts narrow-tailoring inquiry.

Did you consider race-neutral alternatives?Given the long history of racial discrimination andoppression in America, courts tend to treat race-conscious policieseven for laudable purposeswithcaution and skepticism. Therefore, as part of the narrowtailoring analysis, courts look to see if school districtsmight be able to achieve their compelling interests inways that rely on racial considerations to a lesser extent,

or not at all. In the Seattle and Louisville cases, the Courtconcluded that the districts did not present sufficientevidence that they had seriously considered race-neutralalternatives: Seattle, because it quickly rejected severalrace-neutral proposals and Louisville, because it had notpresented evidence of its consideration of race-neutralstrategies.

Consideration of these alternatives is crucial inimplementing a successful and legal plan, even thoughresearch and the experience of certain school districts

suggests that, depending on a districts geographyand demography, race-neutral proposals may onlybe minimally effective in reducing racial isolation andpromoting diversity. Courts do not require that schooldistricts exhaust every possible race-neutral possibilitybefore adopting a race-conscious plan. Rather, theysimply need evidence that the school district made agood faith effort to explore other alternatives. Thus,you should consider (and document your considerationof) alternatives that do not take account of race,and whether they would be effective in achieving the

First, the Court objected to the binary

Documents

Still Looking to the Future Voluntary Integration