A Mere Footnote? An American Dilemma and Supreme Court School Desegregation Jurisprudence

Abstract

This article provides historical and legal context for recent U.S. Supreme Court school desegregation decisions. The Supreme Court's race-based and race-neutral arguments from Brown (1954) to Parents Involved (2007) are examined within their broader context. Policy implications and potential support for diversity goal arguments given the Obama administration's appointments of Sonia Sotomayor and Elana Kagan as the 111th and 112th Supreme Court Justices are considered in light of enduring issues and guiding ideals delineated over half a century ago in Gunnar Myrdal's landmark study of race in the United States, An American Dilemma.

Notes

¹Bernard Schwartz described footnote 11 as “the most controversial note in Supreme Court history” (p. 106).

See also Irons (2002) and Lyman (1998).

After Milliken I ruled that an interdistrict remedy for de jure segregation in the Detroit school system exceeded the constitutional violation, and remanded the case for formulation of a decree, the district court promptly ordered submission of desegregation plans limited to the Detroit school system. After extensive hearings the court, in addition to a plan for student assignment, included in its decree educational components, proposed by the Detroit School Board, in the areas of reading, in-service teacher training, testing, and counseling. The court determined that these components were necessary to carry out desegregation and directed that the costs were to be borne by the Detroit School Board and the state. The Court of Appeals affirmed the district court's order concerning the implementation of and cost sharing for the four educational components. Thereafter, state officials appealed to the Supreme Court. In Milliken II the court held that (a) the compensatory and remedial programs were proper and did not exceed the scope of the constitutional violation involved, and (b) the mandate that the state pay half of the cost of these programs did not violate the EleventhAmendment, the TenthAmendment, or the principles of federalism. See Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II).

Professor Leland Ware is credited with creating the name for this series of U.S. Supreme Court decisions.

Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403, 1413 n.12 (11th Cir. 1985).

See also United States v. Morrison, 529 U.S. 598, 616 n.7 (“It is … a “permanent and indispensable feature of our constitutional system” that “the federal judiciary is supreme in the exposition of the law of the Constitution.” (as cited in Miller v. Johnson, 515 U.S. 900, 922–23 [1995]).

According to Superfine (2010), collaborations among members of legal, educational, and political communities have been successful in developing and monitoring desegregation efforts in spite of considerable challenges in sustaining such efforts over time without “significant pressure from multiple branches of the federal government” (p. 121). Even so, Superfine concluded, “there does not appear to be a clear or easy way for government to effect equal educational opportunities through policy” (p. 131).

For example, when one of the plaintiffs “moved into the school district in August 2002, she sought to enroll her son … in kindergarten for the 2002–2003 school year. His resides school was only a mile from his new home, but it had no available space … and the class was full. Jefferson County assigned [the child] to another elementary school in his cluster …. This school was 10 miles from [his] home, and [his mother] sought to transfer [him] to a school in a different cluster … which—like his resides school—was only a mile from [his] home (Parents Involved, 2007, p. 717).

After the court noted that neither Seattle nor Louisville school districts provided “evidence that the level of racial diversity necessary to achieve the asserted educational benefits happen[ed] to coincide with the racial demographics of the respective school districts,” Chief Justice Roberts concluded that “racial balancing” does not become a “compelling state interest” when it is simply relabeled “racial diversity” (732). According to social science researchers Amy Stuart Wells, Jacquelyn Duran, and Terrenda White, who wrote amicus briefs on behalf of school officials in Parents Involved, longitudinal studies in both Louisville and Seattle have provided evidence that voluntary integration programs and accompanying increased contact with people of other “races” have had positive long-term effects on both racial attitudes and societal structures (e.g., enhanced relationships across races and greater housing integration). According to their research, students with early experiences in integrated schools are more likely to have positive intergroup relationships in their adult lives. See Wells, Duran, and White (2008).

Consensus in educational research is not an easily attainable goal. As Superfine (2010) noted, courts often lack the scientific expertise to judge relationships between empirical evidence and effective policies. This is especially true in the social sciences, not only in light of charges of bias based on ideology as footnote 11 of Brown citing Myrdal's research illustrates, but in the nature of the studies themselves. Such studies are often smaller in scale and less reliant on statistical designs (with random selection and random assignment serving as the “gold standard” in recent national policy). Social science studies are often embedded in specific contexts; therefore, generalizability is limited and consensus is more difficult to establish. Even in the natural sciences, the definition of “science” itself can be problematic. For example, in Kitzmiller v. Dover Area School District, Judge Jones evaluated the relative merits of competing definitions of science, one accepted by a democratically elected school board supporting the teaching of Intelligent Design in science classrooms and one submitted by the NAS in their amicus curiae brief (Superfine, 2009, p. 913).

Kaufman (2008). See also Anderson (2007): “We may argue for or against the use of racial classifications to pursue issues of school desegregation and affirmative action, but we should not pretend that we are constrained by a color-blind Constitution created by the Reconstructionist Congress” (p. 256).