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Editor’s note: May 17 marks the 50th anniversary of the historic U.S. SupremeCourt decision in Oliver L. Brown, et al. v. Board of Education of Topeka, etal., which found segregation in public schools to be unconstitutional. Thedecision was one of the most important of the past 50 years, not only because itfound the doctrine of “separate but equal” inherently unfair, but also becauseof its legacy and its effect on modern institutions. To discuss the impact of Brown v. Board of Education, Texas Lawyer brought together five attorneys whosework today is based in part on the Supreme Court’s 1954 ruling. The lawyersdiscuss the effects of desegregation litigation in public schools and how Brownv. Board of Education is affecting current issues in public education such asvoucher programs, mandates under the No Child Left Behind Act of 2001 and schoolfunding. Texas Lawyer contributing reporter Miriam Rozen and senior reporterBrenda Sapino Jeffreys moderated the roundtable discussion on May 3 in Dallas.The discussion appears below, edited for length and style.
Brenda Sapino Jeffreys, senior reporter, Texas Lawyer: This has been 50 years.When will Brown v. Board of Education … be totally complied with? Marcos G. Ronquillo, partner, Godwin Gruber: When will our society be free fromdiscrimination? Kathleen Wells, director of legal services, Texas Association of School Boards:[W]hat do you see is the mandate for Brown v. Board? If it’s that youdon’t use race as a sole determiner for placement of a child in an educationalprogram, I think we’ve won that. If you see the goal of Brown v. Board as curingall of the racial ills in society so that all the black kids are operating onthe same level as everybody else, that’s not happening, not because of theschools, it’s because of our society. Edward B. Cloutman III, solo practitioner: Well, I think people would argue thatyou’re right. Brown wasn’t just a school district. It was … the end toamiable apartheid. We need to stop this. And here’s the direction. Anytime yousay you can have your separateness, we can have our separateness and thatseparateness is caused by skin color, it’s bad for society. And that’s what Brown says over and over, if you read the actual language of the opinion. It’snot just about school districts, although that’s a setting. It was seen by many,at least, to be the unfulfilled handwriting on the wall to say all institutionsin our society can be free from this hand of racism and we’re not, we’re justnot. Wells: Well, and the problem is for all our talk of family values, that’s veryPC now, we talk about family values, we talk about how important children are,where … are the resources and where are the priorities that really make thathappen? And it’s a lot bigger than just telling some school district they’ve gotto do this or suing some school district. Hiram Sasser, director of litigation, Liberty Legal Institute: Maybe perhaps asolution is, instead of having a government-mandated solution, is that you justlet people choose which schools they want to go to and just let the money travelwith them and … then everybody gets to kind of choose their … own path. Jeffreys: But how would school vouchers improve education overall? I can see howthat would improve it for individuals. … Wells: Not necessarily. Jeffreys: Well, it could. But how would it improve education for every Texasstudent? Sasser: Well, I think you have to start kind of with the fundamentals. …There’s two good examples that we get to look at of government starting twodifferent types of programs and two different paths. … After World War II,the government started kind of, really, two things: the Veteran’s Administrationto take care of hospitals and also an educational program … the GI bill. … So obviously there is something to that, well, maybe these vouchers seem to work. … Now, the rich folks in this country have already made choices. They have choices, and they get to move wherever they want to move, choose whateverschools they want to go to, whatever suburbs, or they can choose privateschools. What we have decided to do is tell people that are poor that can’tafford to do that, that they don’t have a choice that the government solution istheir own solution and that’s sad. Jeffreys: Anybody on the other side of that issue? Wells: What, on vouchers? … [I]f you look at the kids that are in privateschools, they’re not tested. They don’t pass the same tests as the kids inpublic schools. They can’t pass them in many of the areas. … If you aregoing to have vouchers, then my goodness, let all the No Child Left Behind [Act]requirements follow that money. The kids need to be tested. The teachers need tobe highly qualified. And the problem we see in public schools is these kids gooff to home school or they go off to private school and they end up coming backtwo or three years further behind than they were when they left and they’re justthat much more of a problem and a burden on the school district and not to saythe loss of the progress for that child. So to say that vouchers is a way to dothis without any accountability and without … any way to show that educationis, in fact, being good, that’s a waste of public money. Miriam Rozen, contributing reporter, Texas Lawyer How do you see vouchers inany way addressing … issues that were raised in Brown v. Board of Education? Sasser: Because any integration issue is a personal choice. Any integrationissue is a personal choice when people … no longer have to worry about …having to sue boards. … They just pick up and go right to the school theywant to go to. Ronquillo: The reason that we’re so segregated today is because of personalchoice. Wells: And all this does is put public money to finance further resegregation. Ronquillo: [L]ook at the history of segregation cases in the deep South,follow them up through where I call Tobacco Road, up to Maryland, and then overto the Midwest, the industrialized states, and you see judges’ orders that allowbasically white flight, which is what you had here in Dallas. The desegregationcase in Dallas was lost in the mid-’70s when white flight was allowed to go tothe suburbs. Dallas lost its community, it lost its economic base, it lost itsintellectual base, it lost an opportunity for [the] future. And what you seetoday is that continued white flight but it’s also reversed in a sense thattoday … more African-Americans … are moving into Richardson than anyother group, yet you’re seeing more Latinos moving into the inner city becausethat’s where their jobs are basically at, the lower rung, lower socioeconomicjobs. … As long as society is going to be segregated, those schools will besegregated and all those other public institutions will be segregated as well. Ithink the other point … that needs to be made, too, is that you compare theUnited States to … civilized industrial nations such as … Europe orJapan, our public school system nowhere near ranks as compared to ourcompetitors abroad. … And then when we don’t get behind public education foreveryone, then our society essentially loses. Janet L. Horton, partner, Bracewell & Patterson: There’s another point that Ithink needs to be made, which is this assumption that if it’s a private school,it’s automatically better. … I don’t know where that comes from. You know, Ihave experienced just this school year with friends who have one child very goodin school and … just sailed through private school. Little brother, thirdgrade, starts having problems. Tested and he’s dyslexic, and the private schoolsays, “I’m sorry, you just need to take him out. We can’t do anything for him.”You know, we don’t even have a state law that requires private school teachersto be certified, but we assume that just because you’re a private school, youcan do a better job. With children with disabilities, if we’re talking about thelegacy of Brown v. Board of Education, that there is to be good schoolingoffered on an equal basis for all, vouchers does not do it. Wells: You can’t bridge kids, a special-needs kid, on the amount of money youwould get on a voucher. Cloutman: Let’s go back to a little history on vouchers. There was a time in themid- to late-’60s in this country in which all the school segregation plans,public plans, were what we called freedom of choice plans. … We’re talkingvouchers in the public school arena. You could go to any public school in thatdistrict you wanted to go to. You just picked your school. What did it resultin? The haves and have-nots. Racially divided schools immediately worse thanthey had been … before the free-choice plans began because race matters. … Today, if you tried that system … quickly we’ll find that there are someschools that people will pick and there will be hundreds of schools that peopledon’t want to go to. Wells: A lot of magnet schools that have more applicants [than spots] have alottery. Cloutman: Absolutely. Right here in Dallas. I’m not suggesting that that choiceisn’t necessarily a bad component, but I am saying that it’s only choice. We’veseen that before and we’ve seen the result. Wells: And the problem we see of a pattern in some of the circuit courtdecisions that have been out in the last few years, it’s overwhelming that whenthe school districts really do try to add some racial component, for example, tobreak a tie, the race may be used to – Cloutman: You’re talking voluntary system – Rozen: Right. Cloutman: Voluntary — it can get you in trouble. … Wells: It can. And when you start — when a school district starts trying toidentify race as a … way to desegregate the campuses, in more than half thecases, the school districts have lost. Jeffreys: Are there any court decisions right now kind of working their waythrough the courts that would either strengthen or harm the standard set in Brown v. Board of Education? Is there anything that would make a remarkablechange in the law as it stands right now? Cloutman: Anytime the Supreme Court gets a hold of a case that has a racialissue in it, there’s always a chance that it’s going to undermine Brown. Ronquillo: I think the problem .. . with that question, though, is that I think… it may be a misnomer, and I think the problem there is that, to me, Brownis not so much a desegregation case as it is an equal educational opportunitycase recognizing the separate but equal society. The problem, though, when youtake that decision and you throw on top of that decision the actual demographicsof any major urban school district, you will find at least, for example, DISD,they what is it, 86 percent … minority students? – Cloutman: 96 or 94, I’m sorry. … Ronquillo: — are minority students. And so, you know, the challenge is not somuch desegregation, the challenge is educating … all of those …children. So when I hear somebody talk about, quote, Brown, I think, you know, Brown is somewhat of a misnomer. Brown was written for a time when there was ablack school, a white school, a Mexican-American school and where you had …de facto desegregation in our public … school systems. I think we had movedbeyond that on paper. But as a society, we still continue to vote with our feet,we vote with our pocketbook, we vote with our economic status, and we want to bewith people who look like us. … So when we get to that point, it’s hard forme to get excited about … celebrating the 50th anniversary of Brown v. Boardof Education because … point in fact, our society is more segregated todaythan it was when Brown was basically handed down, and we don’t see that …trend changing anytime soon. Rozen: Are you as pessimistic about the possibility that urban schooldistricts such as Dallas can provide an equal education to a 95 percentminority? Ronquillo: Absolutely. … I hope none of my comments have been construed toindicate that, you know, any child regardless of his or her race, ethnicity,socioeconomic status, language, learning ability, can’t succeed. … And theproblem is that oftentimes … major urban school districts just get beat upbecause there’s that perception, there’s that stereotype that they cannotcompete, that they can’t produce and … they certainly do compete and theycertainly do … produce. And I think one of the problems with Brown v. Boardof Education is you look at everything still in black and white. … And ifyou look back, especially in school districts in the Southwest, you have a largeMexican-American, a large immigrant, a large Latino, you know, population. …So we have immigrant emerging programs. Everything that the Supreme Court islooking at in 1954 somewhat changed when it came down to the ethnic makeup . . .of this country. So I think that you need to take the legacy of Brown and applythat to what we have, you know, today. Cloutman: I agree with that. Jeffreys: Was Brown v. Board of Education the most important decision in thepast 50 years? What’s your opinion on that? Ronquillo: Anytime we speak or attend a conference about Brown v. BoardEducation, I always like to mention the Mendez v. Westminster case. And Mendezv. Westminster was a lawsuit filed in 1944 by the Mendez family in SouthernCalifornia. They took over an asparagus farm from a Japanese family that, by theway, had been interned during World War II and were still in their internmentcamp. So their property was taken away from them. The Mendez family came in andtook over and rented the property, the asparagus farm, and they decided to, asthey moved into the neighborhood, enroll their children into … Westminsterand another … school district, about three or four of them. … When theyattempted to enroll their children, they weren’t allowed to enroll theirchildren because they said that you guys got to go to the Mexican school. Andthey did their research, and California went back to the … days of the landgrants, had … the system of segregation between Mexicans or nonwhites andblacks and Anglos. … In 1946, almost eight years before Brown … JudgePaul J. McCormick ruled in favor of the Mendez family … stating, “A paramountrequisite in the American system of public education is social equality.” Sothat really is the first No Child Left Behind case, not Brown v. Board ofEducation. The second is that, in that case, the judge ruled in 1946 and it wasappealed. … And about a year later, the then-sitting governor of the stateof California, Earl Warren, signed legislation for the first time eliminating dejure segregation in the public school systems in the United States. As a resultof that case, there were several other school systems in the Southwest withheavy Mexican-American populations that were affected by that decision, andThurgood Marshall used aspects of the Westminster case when … arguingagainst the de facto segregation of the Brown v. Board of Topeka school systems. Sasser: And then kind of following up on that … in 1981 [the] Supreme Courthad the decision … Plyler v. Doe. Ronquillo: Doe v. Plyler. Sasser: [S]chool districts were trying to exclude undocumented children.And I believe the Texas Association of School Boards filed the amicus brief … on behalf of the school board basically saying we should have the right toexclude undocumented children from schools. Rozen: I think there’s still an issue about funding. … Cloutman: Right. I think that’s a very important decision, and I developedefforts — and maybe adopting Mendez was the first case anywhere that I’m awareof — that dealt with the issue head on instead of this is just, you know,impermissible under any legal standard in this country. But it didn’t get theplay. Wells: Brown was the first Supreme Court decision. Cloutman: And I think because of that, Brown stands for a lot of things.It certainly speaks to … all of the holding principles, I think, of Mendez.And so … Mendez … ought to get credit for being [a pioneer]. But …did the decision … start a seismic wave in the country? Sure, it did. Itgave rise to all of the accommodation, protests and ultimately, I think, the1964 Civil Rights Act, which addressed public accommodation, employmentdiscrimination, educational funding, funding to other entities in Title 6. Imean, it just spawned all of this energy … spawned hundreds and hundreds oflawsuits across the country. Ronquillo: I agree with Ed. I think … footnote on that, though, is as youstudy the litany of litigation and desegregation cases that were filedsubsequent to Brown, you will find that obviously there is no way you can eitherlegislate by … congressional decree or court order at morality. And as aresult of that, you will see just a litany of tragedies and broken promises,failed projects, failed programs, away with busing, freedom of choice to try andgive the people of mixed races to live together, and that was the failure. Andthat failure was just essentially a reflection of society. Cannot legislatemoral behavior. But the success was in … the focus of their time, attention,energy and resources was in trying to convince a federal judge that they’regiving those kiddos an equal educational opportunity, and to me that’s the mostpositive impact of Brown v. Board of Education. Jeffreys: Looking to the future, where do you see Brown v. Board of Educationtaking the schools or … litigation or legal issues? Any thoughts on wherethis is going to take us from now? Are there any uncharted areas yet? Sasser: Well, I will say one. … It’s NAACP of Dallas v. DISD over the accessto the records. … That kind of case is an example that from the minoritycommunity that the school district is not doing everything they can — and thismay be kind of universal, not just DISD — but universal suspicion that theschools aren’t doing as much as they can. Whether that’s true or not, there’sstill that lack of trust. And until that kind of comes together, everybodystarts working together a little bit on that issue, then … there’s stillgoing to be some sort of uneasiness about it. Ronquillo: Well, I think the legacy there on that point, though, is that as youtalk about demographics, you talk about majority population, you also talk about… accountability. You get to a point now where in the past the minoritycommunity could point to a majority school board of majority whites in control.Those days are either gone or rapidly changing and you are going to find moreand more school boards, city council, county commissioners’ courts with morewomen and more minorities. So at some point, it becomes not a great validargument to say it’s the majority of the community’s fault, it’s somebody else’sfault, because now we have the wherewithal to basically elect school boardmembers as the majority population within that political jurisdiction to putpeople from that community on those school boards to the point now that we’retalking about accountability … 50 years after Brown. And the bottom line isthat our children need to be educated, and we can no longer blame a majority ofthe communities abandoned and left the city 30, 40 years ago. … So to me, ifwe want to try and take this legacy of Brown going forward or try to apply Brownto society today, Brown would argue we got to integrate our nation, our society,our community [and] … our school district. Rozen: But do you think … that you can’t do it with a 95 percent minoritypopulation, that integration is fundamental? Wells: Well, hold on. We have a real good bond program going right now. Ronquillo: Oh, yeah. We have one of the best. … But if you look at what isthe makeup of … let’s say the Dallas Independent School District boardtoday, what’s the racial makeup? You have, what, three African-Americantrustees? Cloutman: It’s 5-4 minority. Ronquillo: Five-four, right. Exactly. Those jurisdictions are moving toward aday when the minorities will be the majority on those boards. It will be up tothem to take Brown v. Board of Education that much further. However, you’regoing to have the reverse dichotomy that you had in terms of society in terms ofwhat actually initiated Brown in the beginning; that is, you’re going to have avery major urban minority core and a very majority suburb type of community. Rozen: You also have … the white-flight schools. Ronquillo: Look at Frisco. They have the white flight in Frisco. OK? What ishappening is this: Our community is having babies at a quicker pace. Ourcommunity is having immigrants at a quicker pace. They have to live and theyhave to work somewhere. They follow the jobs. They follow food and beverage,hotel, motel, light manufacturing, heavy construction. They’re usually the firstones in the trenches in the morning, and they’re the last ones out of thetrenches. … As our economy develops and we become truly a North Texaseconomy, those minority communities will go out into the suburbs because that’swhere the jobs are essentially at. They’re not going to be here in the innercore. You are not going to have that kind of vibrant core that you had back inthe ’50s, ’60s and the ’70s when you had more majority of the communities livinghere in the urban area. But the point being is that Richardson, like Dallas, has80, there’s 80-some odd languages represented in Richardson Independent SchoolDistrict. As I said before, there’s a lot more African-Americans moving toRichardson and moving to the suburbs in greater numbers than we have had …before. So you have some changing demographics. Cloutman: Let me make an argument about that. I think you are right. … Weare now at that era, particularly in the urban districts, where political power,as opposed to litigation results, are going to be far more important. But how dowe get there? Well … I argue that one of the [legacies of] Brown is theVoting Rights Act, and that’s how we got our political power. You couldn’t voteeither if you were black in this country. You couldn’t vote if you were brown inDallas. You can now. We have same number districts, city council, school boardand county commissioners. There’s going to be more political power exercised bypeople of color in urban areas. … But for some wave of emphasis from Brownon riding that great big crest into the ’60s, all these pieces of legislationwere passed, and they were implemented across the country. Hence, our politicalbodies today reflect the community including, most appropriately, people ofcolor.

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