May 17 marks the 60th anniversary of the Supreme Court’s decision in Brown v. Board of Education, the constitutional moment that compelled our country to reckon with its history and confront the unfulfilled promise of equality first articulated in our founding documents. The ruling ended legalized racial segregation in our schools, but the significance of the case extended far beyond the classroom: The civil rights legislation passed during the 1960’s largely grew out of this historical case, which quite literally changed America.
Today, however, the very states whose segregated schools, poll taxes, and Jim Crow laws necessitated federal intervention in Brown are once again limiting the educational opportunities for people of color. Rather than explicitly refusing to admit students of color into school, these states have found new, more clandestine ways to marginalize people of color — but the results are strikingly similar.
Supreme Court Justice Thurgood Marshall foretold of these struggles from the beginning. On the evening of the landmark ruling, Marshall celebrated the victory with his NAACP colleagues, as he often did after a major case. But as the night wore on, Marshall grew increasingly serious, even somber. “I don’t want any of you to fool yourselves,” he told his colleagues. “The fight has just begun.”
Sixty years later, that fight still continues.
Brown brought about the end of our nation’s legalized system of school segregation, which signaled a turning point in the fight for racial justice. The momentum from Brown led to the passage of critical legislation, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The ruling deployed our nation’s most coveted assets – our Constitution and the rule of law – to articulate and enforce the principle of equality.
But change would be slow to come.
The idea of integrating our schools didn’t sit well in the South, where Blacks were still systematically discriminated against in every area of life. The massive resistance to the Brown ruling was symbolized most dramatically by Arkansas Governor Orval Faubus’ order that his state’s national guard unit block the admission of nine African American students to Little Rock’s Central High School in 1957. The nearly month-long confrontation ended when President Eisenhower sent in U.S. troops to protect the students.
According to the Leadership Conference on Civil and Human Rights, resistance to desegregation continued long after the ordeal in Arkansas:
Faubus’ action was just one of a variety of methods employed by states and localities to resist implementing the Supreme Court’s rulings. In one prominent example, Prince Edward County, Virginia, abandoned its entire public school system, leaving education to private interests that excluded African American children from their schools. Many African American children were essentially locked out of school for several years until the Supreme Court ruled Virginia’s action unconstitutional.
Such dilatory and delaying tactics were at least partially successful. After desegregation’s first decade, only 2.3 percent of African American children in the Deep South attended integrated schools. But such tactics also tried the patience of African Americans and the federal courts.
Enactment of the 1964 Civil Rights Act in response to the nonviolent civil rights movement finally spurred action. In 1966, the Fifth Circuit Court, in United States v. Jefferson County Board of Education, ordered school districts not only to end segregation but to “undo the harm” segregation had caused by racially balancing their schools under federal guidelines. Jefferson was followed by the Supreme Court’s Green v. County School Board of New Kent County decision in 1968, requiring desegregation plans that promised to work right away.
In addition to the significance of the ruling as a historic moment in the civil rights movement, Brown is also a powerful example of the important role that law plays in shaping the very character of our country. In fact, many people say that the resistance to desegregation may very well have continued if not for the federal government’s strong commitment to enforcement of the Civil Rights Act of 1964, which proved critical in the effort to desegregate our schools.
In the first five years after the Act’s passage, with the federal government threatening and sometimes using fund termination enforcement provisions (i.e., cutting off federal funding to school districts that failed to comply with the law), more substantial progress was made toward desegregating schools than in the 10 years immediately following the Brown decision. In 1964, 1.2 percent of African American students in the South attended school with whites. By 1968, the figures had risen to 32 percent.
By the 1970s, according to studies by Gary Orfield, the South had become the nation’s most integrated region. In 1976, 45.1 percent of the South’s African American students were attending majority white schools, compared with just 27.5 percent in the Northeast and 29.7 percent in the Midwest. These gains occurred in the context of the second great controversy of the school desegregation effort — busing.
The controversy surrounding busing came to a head in the Supreme Court’s 1971 decision, Swann v. Charlotte-Mecklenburg Board of
Education, one of the first attempts to implement a large-scale urban desegregation plan. Swann called for district-wide desegregation and allowed for the use of busing to achieve integration, finding that the times and distances involved in the desegregation plan were no more onerous than those involved in the busing already undertaken by Charlotte for non-desegregation purposes. Court-ordered busing, as it came to be known, was fiercely attacked, not least by the administration of President Richard Nixon. Busing was criticized as undermining the sanctity of neighborhood schools, as social engineering, as impractical and unworkable, and as intrusive and inappropriate judicial meddling.
While busing drew a great deal of public attention, critics largely overlooked the facts that few students were bused for the purpose of desegregation and, indeed, that busing worked — especially in the South where school districts are often countywide and include both central cities and suburbs.
In 1972, President Nixon, partially in fear of Alabama Governor George Wallace’s independent presidential campaign, mounted an attack on busing and asked Congress to ban it. Although President Nixon’s effort failed, the drive for desegregation slowed. In 1974 the Supreme Court, in Milliken v. Bradley, a case involving the Detroit metropolitan area, effectively halted busing at a city’s borders. The Court’s 5-4 decision blocked a city-suburb desegregation plan in Detroit that would have involved busing across school district boundaries. Ignoring evidence of state governments’ past and continuing involvement in housing and school segregation, the Court said that “local control” was an important tradition in education. The decision allowed for proof of “interdistrict violations,” while placing heavy burdens on plaintiffs in future cases.
According to Gary Orfield of the UCLA Civil Rights Project, “the Milliken decision could be seen as the return of the doctrine of ‘separate but equal’ for urban school children in a society where four of five Americans live in metropolitan areas.”
It was around this time, but even more so in the early 1990’s, that our nation began to reverse course, undoing much of the progress we had made towards integrating schools. And thanks to a combination of bad housing policy, white flight to the suburbs, lax court enforcement of desegregation orders and a series of regressive rulings by the Supreme Court, the goal of desegregated schools is far from actualized.
A Battle Not Yet Won
Today, public schools are more segregated than they were forty years ago. Researchers like Orfield say that part of that backslide is due to rulings by the U.S. Supreme Court over the past two decades. That includes a landmark 2007 decision invalidating Seattle Public Schools’ voluntary desegregation plan which used race as a factor in school zoning decisions. This decision, writes Orfield, “makes it likely that segregation will further increase.”
Many of the nation’s schools are segregated by ethnicity and poverty, and for some minority students — particularly the soaring Latino population — the segregation is also by language, according to a 2007 report by Orfield and fellow researcher Chungmei Lee. While the nation’s racial barriers are lower in some ways, those advances have not been enough to cancel out the effect of inadequate political leadership and a “hostile” Supreme Court, says Orfield.
On average, white students attend schools that are 72.5 percent white, Latino students attend schools that are 56.8 percent Latino, and black students attend schools that are 48.8 percent black. Minority students make up the vast majority of metropolitan public schools, whereas their white counterparts attend suburban institutions. In the suburbs of large, medium, and small cities, white students make up 50 percent, 60.3 percent, and 61.7 percent of public school populations, respectively.
Geographically, the highest rates of segregation occur in the West and South. Between 1991 and 2011, for instance, the percent of black students attending “racially isolated minority schools” in the South increased by more than 8 percent. The percent of black students enrolled in similarly segregated schools in the West rose by roughly 8 percent as well. In the same two decades, the percentage of Latino students in 90-100 percent minority schools jumped 16.2 percent in the West.
And even in schools that have achieved some level of diversity, there’s evidence that students of different races are still being treated differently. For example, a 2007 study from the Journal of Educational Psychology analyzed dozens of previous studies, spanning more than three decades, on how teachers interact with different kinds of students. Researchers found that, overall, teachers’ expectations and speech varied depending on the race of the student. Teachers directed the most positive behavior, like questions and encouragement, to white students.
A 2012 study from the American Sociological Association found, “Substantial scholarly evidence indicates that teachers—especially white teachers—evaluate black students’ behavior and academic potential more negatively than those of white students.” The study analyzed the results from the Education Longitudinal Study, a national survey of 15,362 high school sophomores, as well as their parents and teachers. Again, the evidence showed a bias among white teachers that favored white students.
One problem with teachers evaluating minority students more negatively than white students is that those teachers, along with standardized tests, are the ones who decide who gets recommended for remedial classes. African American and Hispanic students are more likely to get sorted into less competitive education tracks. And, if the evidence is right, it’s not because those students on average happen to be performing worse. A 2005 paper from the University of Illinois Law Review noted that school tracking assigns students of color “unjustifiably and disproportionately to lower tracks and almost excludes them from the accelerated tracks.”
And on top of these problems, there are also massive racial disparities in school punishment, which were highlighted in a a recent report from the US Department of Education’s Office for Civil Rights. Black students accounted for 18 percent of the country’s pre-K enrollment, but made up nearly half of preschoolers with multiple out-of-school suspensions. Across all grades, Black students were expelled at three times the rate of white students. Black students are also far more likely to end up in the “school-to-prison pipeline.” Though 16 percent of America’s public school students are black, they represent 27 percent of students referred by schools to law enforcement, and 31 percent of students arrested for an offense committed in school.
My purpose in writing this is not to imply that Brown is any less than the landmark moment in the civil rights movement that it is. We have made progress, and the hard work of the men and women who conceived, developed and executed the plan to dismantle the “separate but equal” practices in America’s educational institutions should be applauded and celebrated. Those who fought to establish a legal precedent for racial justice in our nation’s schools were among the pioneers of the civil rights movement, and their actions still reverberate today.
The reason I wanted to point out the still-unfulfilled promise is to encourage us not to become complacent, and to remind us that, although a court ruling can change the law, it can’t guarantee that the goal is actualized in practice. The 60th anniversary of Brown is a time for celebration, but even more than that, it’s a time for reflection and renewed strategic thinking.
As Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, points out, “we know that the challenges confronting America in its education system were not created by Brown. To the contrary, it was the decades-long, relentless, expensive, short-sighted and sometimes violent resistance to Brown that first derailed what could have been a peaceful and efficient transformation to an integrated public education system that might have become the best in the world.”
And the same resistance still exists today, in a different — and more insidious — form. Not long after George W. Bush’s nominees remade the Supreme Court, they struck down two race-conscious plans seeking to integrate public schools—with Chief Justice John Roberts simplistically claiming that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Six years later, Roberts tore the heart out of the Voting Rights Act. Just last month, the Supreme Court dealt another blow to the civil rights movement when they upheld Michigan’s ban on affirmative action policies, clearing the way for more states, through legislation or voter initiatives, to prohibit affirmative action. California and Washington state have already enacted education-related affirmative actions bans, and other states — including Arizona, Nebraska, Florida, and Oklahoma — have approved similar bans.
These are dangerous trends, and they reflect a common sentiment in America — namely, that racism is a “thing of the past.” But the problem with the “past is the past” argument is that the past creates the present. You can’t understand America’s racial inequality without understanding how we built it. As a result of a 400-year commitment to forcing one group of people to be subjugated by another, Black children are less likely to get a good education at their inner city schools, Black families have far less wealth than Whites, and most major corporations and universities are controlled by Whites. The list goes on and on. So, to argue that the past doesn’t matter is to ignore everything that made us, as a society, into what we are today.
A robust federal government was the only thing strong enough to break the back of Jim Crow. Especially given the history of racially regressive rulings in the Roberts Court, it may once again be the only thing that can stop the latest iteration of these old prejudices.
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