The Not So Strange Path of Desegregation in America’s Public Schools

Introduction The [Brown] decision ... became the archetype of a landmark decision. Landmark decisions are, at bottom, designed through reference to constitutional interpretations and supportive legal precedents to address and hopefully resolve deeply divisive social issues. They are framed in a language that provides at least the appearance of doing justice without unduly upsetting large groups whose potential for noncompliance can frustrate relief efforts and undermine judicial authority. For reasons that may not even have been apparent to the members of the Supreme Court, their school desegregation decisions achieved over time afar loftier place in legal history than they were able to accomplish in reforming the ideology of racial domination that Plessy v. Ferguson represented. (Bell, 2004). This passage from the book Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform by Derrick Bell provides a fitting description of the life of racial equality in America's public schools, and Bell's own early career illuminates the sequence of judicial events. Bell started his legal career in the Civil Rights Division of the United States Justice Department. In the years 1960-65 Professor Bell was an attorney for the NAACP Legal Defense Fund supervising the litigation of desegregation cases for that organization. In 1966 he reunited with the Justice Department aiding in the enforcement of Title VI of the Civil Rights Act "authorizing the termination of federal funds to school districts ... in noncompliance" with early federal court desegregation decisions. (Bell, 2004 p.3) Today, Mr. Bell is an ardent critic of those same decisions he helped to enforce, claiming that court ordered desegregation is a "fiction," that racial discrimination against people of color is as ingrained in American society as apple pie, and that school districts are inappropriate places to seek racial reform. So goes the journey of school integration as the legal status of discriminatory acts against students on the basis of race is rooted firmly in the United States Constitution, especially the concept of equal protection of the laws found in the Fourteenth Amendment. The journey of desegregation has been circular following the swings of social eras involving more than one hundred and fifty years of litigation. Except for a few significant cases, state and local government officials and members of school boards have been afforded power in determining authority to circumvent desegregation decrees based on the Tenth Amendment of the United States Constitution declaring, " [t]he powers not delegated to the [federal government] by the Constitution ... are reserved to the states." (U.S. Constitution, Amend. X) Specifically, racial discrimination in schools has had a history largely supported by judicial decisions under the rubric of states rights. Those in the racial majority in the South and the North have steadfastly resisted any change in the status quo of student separation. African-Americans, more recently, have themselves begun to question judicial intervention that would force students to remain together particularly in the kind of hostile environment that for years accompanied black student attempts at integration. This is the not so strange story; one where the undermining racial rationales of apartheid constitute a closed plane curve in the chronicles of American education. The Expansion of Judicial Authority to Order Desegregation The history of education for black children in the United States began with laws making it a crime to teach slaves to read or write. (Goldstein et. al) History informs us that pre-Civil War education provided for blacks in the North was often encapsulated by discriminatory laws. In Roberts v. City of Boston (Roberts, 1849), for example, the Supreme Court of Massachusetts held that state law did not require blacks to attend school with whites, and for that matter, did not even require education for black students notwithstanding the fact that black parents were taxed for education at the same rate as whites. …