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May marks the anniversary of Brown v. Board of Education. Twice, in fact, since there were two Supreme Court decisions: the substantive ruling in May 1954, finding separate educational facilities “inherently unequal,” and the procedural ruling in May 1955, ordering desegregation “with all deliberate speed.” A half-century later, it’s a good time to review Brown’s judicial legacy. Of course, massive resistance in the South ensured that school desegregation did not take place with all deliberate speed. Then came the Civil Rights Act of 1964. Today we invoke the act for its bans on discrimination in public accommodations (Title II), federally funded programs (Title VI), and private employment (Title VII). But at the time of its passage, equally significant was Title IV, which authorized the Justice Department to bring desegregation lawsuits. By the early 1970s, the Justice Department was litigating or had already litigated hundreds of cases all over the country, but especially in the South. The department nearly always won, and, as a result, hundreds of court orders were issued requiring the reassignment of students and faculty. Thirty or more years later, most of those court orders are still in place. This spring, at the request of a House subcommittee, the Justice Department provided a list of “Pending School Desegregation Cases to Which the United States Is a Party.” There were 445. This does not include cases in which the government is not a party (for instance, the 14 cases in which the United States is participating as amicus) nor cases in which the United States is involved but the bureaucrats have lost the files (quite possible after 30 years and seven administrations). During the Reagan administration, the Civil Rights Division systematically tried to persuade courts to end supervision of those school districts that had been fully desegregated. (I served as a deputy in the division during part of this time.) It often turned out to be an unpopular enterprise. Desegregation cases typically have three players: the school district, the Justice Department, and a private civil rights organization representing African-American plaintiffs. The latter groups almost always resisted efforts to end the case. Once this became clear, many school districts got cold feet, too. As the only defendants, they had to pay both their lawyers’ bills and, if they lost, the plaintiffs’ attorney fees. School districts tended to conclude that the court orders were a sleeping dog they could not afford to wake. Money aside, there were — and are — political reasons for many school boards to resist changes to the status quo. They don’t want to be accused of “turning back the clock.” Besides, these orders have been a useful crutch, obviating the need for hard decisions regarding school reform, providing an easy excuse for poor academic performance, and justifying all forms of bureaucratic inertia. The courts were sometimes unreceptive, too. The more-liberal judges like the court orders, but even moderates and conservatives may view renewed litigation as a way to make lots of enemies and no friends. In a 1988 case, the Justice Department pointed out the legal limits on long-term judicial oversight, but the Georgia judge responded, with distressing candor, that so long as all parties were in agreement, he and they could do whatever they liked. The Bush administration succeeded in getting some relatively good case law from the Supreme Court, albeit in closely divided cases. In Board of Education of Oklahoma City Public Schools v. Dowell (1991), the Court set out the standards for releasing a school district from judicial supervision, warning that these decrees “are not intended to operate in perpetuity.” In the following term’s Freeman v. Pitts (1992), the Court ruled: “Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation.” Likewise, in Missouri v. Jenkins (1995), a 5-4 Court limited district courts’ remedial authority in desegregation cases. Specifically, it struck down the measures required in the 18-year-old Kansas City, Mo., litigation, “described as the most ambitious and expensive remedial program in the history of school desegregation.” (Also the most futile: The school system’s performance is so bad that on May 1 its schools were de-accredited.) There have been some brave judges willing, sua sponte, to call in the parties and try to bring these cases to a conclusion. Linda Chavez, my boss, wrote a letter in October 1998 to all federal judges in districts with pending desegregation cases — based on an earlier Justice Department list that we had obtained — urging them to do just that. The response she got was mixed, with some judges taking it to heart, and others politely or not so politely telling her to mind her own business. Recently, many school systems in the Middle District of Alabama were given a fairly explicit road map for achieving “unitary” status in three years. The Alabama consent decrees are not perfect — they are quota-driven for everything from faculty hiring to school discipline to cheerleading squads — but they do signal that, over time, more and more of these cases will be dismissed. RISKING IMBALANCE There is not much doubt that this is what the law requires. The Supreme Court has warned that desegregation cases are not supposed to last forever. After all, public school decisions should be made by school boards, not federal courts, absent a clear and present danger of de jure discrimination. And the Court has made clear its general reluctance to allow the government to sort citizens on the basis of race. But ought we to be hastening this result? Conservatives are surely right that the world has changed dramatically since 1954, and that there are few, if any, de jure segregated systems left. But liberals are surely right that without government intervention of some sort there will be much de facto segregation — or, more accurately, many schools that are racially imbalanced. This is not a new debate. In 1964, in Title IV itself, Congress warned: ” ‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, sex or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.” (This anti-racial-sorting language was — unconvincingly — brushed aside by the Court in Swann v. Charlotte-Mecklenberg Board of Education (1971) insofar as it might have limited remedies in desegregation cases.) The best argument for continuing desegregation decrees is not that they are legally justified, but that without them some public schools will become heavily black, and that the students who go to these schools will suffer as a result, since they will inevitably receive fewer resources. Indeed, this argument is used to justify wealth-based student assignments as a (legally more defensible) alternative to racial balancing: The rich/ white kids will have to go to the same schools as the poor/black kids, and this will ensure that the latter aren’t short-changed. But in the long run, the rich/white kids can’t be held hostage because they’ll just move away or go to private schools. Besides, busing is expensive and divisive, and it takes time away from studying, sports, and after-school clubs, as well as discouraging the parental and community involvement that neighborhood schools can boast. The situation is further exacerbated by the fact that many more Asians and Hispanics attend our public schools today than when the orders were put in place: How do we count them? Schools districts all over the country have gotten, or are trying to get, rid of busing. In the pointed opening line of his concurrence in Missouri v. Jenkins, Justice Clarence Thomas wrote: “It never ceases to amaze me that the courts are so willing to assume that anything that is predominately black must be inferior.” And it’s not just courts, but lots of other folks, too, including some parents. Meanwhile, other parents want to focus on improving academic standards. Either way, the best solution is school choice. Then each parent can make a decision without binding others, and competition will force schools to improve performance. But for that to happen, the desegregation cases of the last four decades must be closed. For whatever else they once accomplished, today they make it very difficult for school boards to implement reforms and to experiment with new student assignment policies. Not only are race-based judicial orders legally unjustified; they distract from the real educational and social challenges. Roger Clegg is general counsel of the Center for Equal Opportunity, a D.C.-based think tank. He can be reached at [email protected]

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