Allen G. Breed, AP, November 11, 2007
Officials in Shelby County, Tenn., complain they’ll have to spend millions to satisfy a federal judge’s “arbitrary” desegregation order. It’ll mean busing minority students up to an hour away and replacing hundreds of white teachers with black ones, they say.
In Huntsville, Ala., under a similar court order, students can transfer from a school where they’re in the racial majority, but not the other way around.
And in the Tucson, Ariz., Unified School District, students could move from one school to another only if the change improved “the ethnic balance of the receiving school and (did) not further imbalance the ethnic makeup of the home school.”
But wait: Hasn’t the U.S. Supreme Court consistently moved away from using race as a factor in deciding where kids should go to school?
These districts are in a unique and sharply debated position with respect to the Supreme Court’s rulings. They exist in what critics consider a historical Twilight Zone, where federal judges can make seemingly contradictory decisions.
“So which ruling do I violate?” asks a perplexed Bobby Webb, superintendent of schools in Shelby County, where Memphis is located. “The judge’s ruling now, or the earlier rulings that we can’t discriminate against people on the basis of the color of their skin?”
Front-page court battles over integration are mostly a thing of the past. But according to the U.S. Department of Justice’s Civil Rights Division, there are at least 253 school districts still under federal court supervision in racial inequality cases—and those are just the ones in which Justice intervened.
Of those that remain, most are in the South. Georgia leads with 61, followed by Mississippi with 51, Alabama with 50 and Louisiana with 30. But long-standing cases are still pending in places like Arizona, Connecticut, Indiana and Illinois.
In Memphis, the school board and the NAACP Legal Defense Fund filed a joint motion to end 44 years of court oversight. The Department of Justice joined in, writing that on the whole, the district had “complied in good faith with its obligations” under the desegregation orders.
U.S. District Judge Bernice Bouie Donald disagreed strongly.
The old court orders require districts to dismantle “all vestiges” of government-sponsored segregation. A district must show compliance in six areas: student body composition, faculty, staff, facilities, extracurricular activities and transportation—the so-called “Green factors,” from a landmark Virginia case with a plaintiff by that name.
Of the district’s 46 schools, she noted, only 17 had a racial makeup that was reflective, within 10 percentage points, of the 32 percent black student population. And when the new Southwind High School opened its doors this fall, it was around 95 percent black.
Donald ordered that the racial composition in each school, “of both faculty and students,” mirror the overall student population, within 15 percentage points. She also announced the appointment of a special master to oversee the plan’s implementation, and suggested the district could remain under supervision until 2015.
The board asked for a stay, arguing that meeting Donald’s “arbitrary” demands would force the district to hire hundreds of new black teachers and bus 9,000 pupils—or about 20 percent of the total student population—for up to an hour a day at an additional cost for transportation alone of more than $1.6 million a year.
Board attorney Valerie Speakman says Donald’s order “flies in the face” of 40 years of Supreme Court precedent.
Board chairman David Pickler, also an attorney, terms Donald’s requirements “destructive” of district integration efforts, saying they’d force the busing of black students past the “state of the art” Southwind to an older, inferior school.
Across the country in Tucson, another judge has been accused of misapplying the June high court ruling in a 29-year-old desegregation case.
In August, U.S. District Judge David C. Bury cited the decision in declaring the district’s Policy 5090 unconstitutional. Adopted at a time when Anglos constituted the student majority, it now has the effect of limiting the options of minority students.
Between November 2006 and this past September, 1,108 transfer requests were denied because they would have upset the racial balance at schools, says a district administrator, Pam Fine.
Being under court supervision doesn’t guarantee a district will be the picture of integration.
In the Huntsville system, the student population is 43 percent black. Yet despite 44 years of court supervision, more than half of the district’s four dozen schools are majority minority—and nine schools are above 90 percent black.
“Judges just kind of let the school district evolve,” says Gary Orfield, co-director of The Civil Rights Project at UCLA.
Under Huntsville’s court-approved choice plan, students are allowed to transfer from a school in which they are in the majority racially to one where they would be in the minority. But Superintendent Anne Roy Moore concedes that few, if any, of the 306 transfer requests approved last year were from white kids.
The Justice Department has contacted Huntsville about seeking unitary status. During a briefing, attorney J.R. Brooks told the school board there might be some “pain” involved.
In the Tennessee case, Judge Donald acknowledged that “a district cannot be held responsible for maintaining such balance in perpetuity in the face of demographic forces beyond its control.” But she said the Supreme Court’s rulings “underscore the momentous, irreversible nature of this Court’s pending decision as to whether the County has achieved unitary status.”
Shelby County is appealing to the U.S. 6th Circuit Court of Appeals.
No, she is simply making the district touch all the bases before heading for home plate, says Robert Pressman, a former Justice Department attorney and veteran of Boston and other desegregation fights. “The judge is taking a stand,” he says.
While there is a certain stigma attached to being under court supervision, Orfield says school administrators who value diversity shouldn’t be in any hurry to get out from under these orders.
“What you get from it isn’t freedom,” he argues. “School districts without court orders don’t have freedom to do what they are doing” to maintain racial diversity.