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Debating Desegregation, Again

In a 2019 Democratic presidential debate, Kamala Harris attacked Joe Biden for opposing busing while in the Senate. Noting that she was one of the first students to be bused to an integrated school in Berkeley, she asked Biden, “Do you agree today that you were wrong to oppose busing then?” He repeated his long-standing opposition to busing mandated by the federal government. Harris had hoped to use the issue to rally African-Americans to her candidacy. But within a few days, she backed off, explaining that she saw no need for the sort of desegregation orders that had convulsed the nation and divided the Democratic Party in the 1970s. Biden’s position on busing did not hurt him among rank-and-file black voters, who salvaged his flagging candidacy the following spring. 

If politicians and voters had little interest in reviving the busing debate, the same could not be said of journalists and academics. Soon thereafter, Nikole Hannah-Jones’s New York Times Magazine article announced, “It was Never About Busing: Court-ordered desegregation worked. But white racism made it hard to accept.” According to the Atlantic, “scholars have used the moment to chip away at resilient myths about busing,” and to point out that “court-ordered busing was generally effective.” New research added to the visibility of the issue without resolving any of the key questions.

Several factors have converged to reignite the desegregation issue. Most obviously, increased attention to racial equality has put a spotlight on the racial achievement gap and the poor quality of public education offered to so many minority students. In response, many school districts are experimenting with methods for promoting racial and socio-economic integration.

At the same time, the Supreme Court has become increasingly skeptical of the use of racial classifications by schools. Next fall, the Court will hear the Harvard affirmative action case, and is expected to make it harder for colleges to use race in admissions. In its 2007 Parents Involved in Community Schools v. Seattle School District decision, the subject of this book, the Court limited the use of race for assigning students to elementary and secondary schools.

All this is happening amid a major change in the demographics of public schools. When the Supreme Court decided Brown v. Board of Education in 1954, elementary and secondary schools were overwhelmingly white; the only other significant racial group were African American students in the South and large cities. Today, non-Hispanic whites are a minority of the school-age population. In many urban areas they are but a tiny minority of public school students. Hispanic are now the second largest group, and Asians have a growing presence. This creates new challenges for public schools, and complicates the question of what constitutes “desegregation” and “integration.” One old measure—the percentage of white students in black students’ schools—is now a poor indicator of schools’ diversity. Yet it forms the basis for repeated claims about the “resegregation” of American schools.

Into this politically charged debate comes a book with a provocative title—Breaking the Promise of Brown—and a misleading subtitle—The Resegregation of America’s Schools. The former comes from Justice Stephen Breyer’s long, impassioned dissent in the Parents Involved case. His judicial opinion constitutes over half of this slim volume. The subtitle was added by his former law clerk, Thiru Vignarajah, who wrote the introduction and provided the appendixes. Breyer’s dissent is an important document that provides the most extensive argument for a broad reading of Brown v. Board ever offered by a member of the Court. It is well worth reading. Vignarajah’s polemical introduction, by contrast, seriously distorts the legal issues and the evidence on desegregation. 

If Vignarajah had used his introduction to explain how Breyer’s approach differed from Chief Justice Roberts’ plurality opinion and the concurring opinions of Justices Clarence Thomas and Anthony Kennedy, he would have produced a valuable book. Never before had the justices engaged in such a candid debate over the meaning of Brown. Instead, though, he offers a cascade of dubious claims. He frequently implies that the Rehnquist and Roberts Courts are responsible for the “resegregation” of American schools without acknowledging either the various ways of measuring “segregation” or the fact that demographic change has made his preferred measure anachronistic.

Breyer’s dissent is important and revealing, but Vignarajah fails to explain why. Breyer presents the Court’s first explicit defense of an approach to desegregation that shaped the precedents it established in the 1960s and 1970s. As I explain in my forthcoming book, The Crucible of Desegregation, the Court has issued nearly 30 decisions on desegregation since 1968, but has never defined the term or explained what is required of schools found guilty of segregation. For decades, the Court has oscillated between two positions, one based on the argument that our Constitution is “color-blind” (which means that racial classifications are constitutional only in exceptional circumstances); the other based on the argument that the underlying objective is to reduce racial “isolation” (that is, to eliminate predominantly black or minority schools). The former position was dominant in the 1950s and early 1960s and began to make a comeback in the 1990s. The latter formed the basis of the desegregation orders of the 1970s and 1980s. It was endorsed by many lower court judges, but never by the Supreme Court. Although Justice Thurgood Marshall hinted at the racial isolation argument in dissenting opinions, Breyer offers the Court’s first full-throated defense of that position. 

School officials in both Seattle and Louisville had used racial criteria to assign students to particular schools in order to increase the number of white students going to school with minority children. This had long been the practice in districts found guilty of intentional (de jure) segregation. Seattle, though, had never suffered that fate. Louisville had been under a desegregation order for many years, but in 2000 was declared “unitary” and freed from judicial supervision. The Court’s majority held that neither district had adequate justification for using racial classifications. Writing for Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens, and himself, Breyer argued that school districts should be given wide berth to use “benign” racial classifications, that is, those that seek to produce greater racial balance. Justice Kennedy tried to find a middle ground, agreeing that Seattle and Louisville had gone too far, but suggesting more subtle ways to achieve racial balance.

Breyer and Vignarajah offer three arguments for their position. The first is precedent. Conveniently ignoring previous rulings that do not serve his purpose, Breyer devotes many pages to showing that in years past, the Court had both allowed and mandated similar use of racial classifications. Vignarajah ominously warns that the Roberts Court has so frequently ignored precedent that it has eroded the Supreme Court’s legitimacy—an accusation frequently repeated by today’s progressives, one that bears a striking resemblance to those made years ago by conservative critics of the Warren Court. 

An odd feature of Breyer’s opinion is that despite its many references to “the promise of Brown,” one finds almost no references to the words of Brown or to the arguments of the NAACP lawyers who so skillfully prosecuted the case. That is because the NAACP lawyers repeatedly made Justice Harlan’s “color-blind” argument. In oral argument, Robert Carter explained that the “one fundamental contention which we will seek to develop” is that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunity among its citizens.” In Bolling v. Sharpe, the companion case to Brown that struck down school segregation in the District of Columbia, Chief Justice Warren wrote that “classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.” Brown II required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Unlike Breyer, Roberts and Thomas attached great weight to these statements.

Breyer and Vignarajah’s willingness to defer to local officials turns out to be a bit of a mirage. That is because they reject the distinction between de facto and de jure segregation as “meaningless in the present context.”

Instead, Justice Breyer relied primarily on Chief Justice Burger’s opinion in the 1971 Swann case. As Vignarajah notes, “For Justice Breyer, this was the controlling precedent.” But what an odd precedent it is! To achieve unanimity on the Court, Burger wrote and rewrote the decision so many times that it lost all coherence, moving from one set of contradictions to another. Judge (later US Attorney General) Griffin Bell observed, “It’s almost as if there were two sets of views laid side by side.” The New Republic described it as “a negotiated document looking in more than one direction.” On the crucial question of racial balance, Burger conceded that “awareness of the racial composition of the whole school system” can be “a useful starting point in shaping a remedy.” But he warned, “If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balancing or mixing, that approach would be disapproved and we would be obliged to reverse.” “The constitutional command to desegregate schools,” he argued, “does not mean that every school in every community must always reflect the racial composition of the school system as a whole. In Burger’s Swann decision one finds a vivid presentation of the ambiguity and inconsistency that characterized the Court’s desegregation jurisprudence for decades.

A second, more convincing argument advanced by both Breyer and Vignarajah is that the Court should give wide berth to policy decisions made by elected officials and educational leaders: “[T]he Constitution does not authorize judges to dictate solutions to these [educational] problems. . . [It] creates a democratic political system through which the people themselves must together find the answers.” Vignarajah commends Breyer for such “judicial humility.”

The liberal justices’ willingness to defer to local officials rests on the assumption that their use of race is “benign.” How does one know that? Thomas pointed out that the segregationists who opposed the Brown decision also claimed that their policies were good for whites and blacks alike. In an earlier decision, Justice Sandra Day O’Connor warned that the embrace of “benign racial classifications” suggests confidence in judges’ “ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.”

Breyer and Vignarajah’s willingness to defer to local officials turns out to be a bit of a mirage. That is because they reject the distinction between de facto and de jure segregation as “meaningless in the present context.” If that is true, then almost every large urban school system is guilty of segregating its students, and thus required to move toward “unitary status” by achieving racial balance in all its schools. That would mean that Seattle, Louisville, and many other districts would need to go far beyond the steps they have voluntarily taken. So much for judicial humility.

Third, Breyer and Vignarajah confidently assert that putting more white students in the schools attended by black, Hispanic, and Asian students will improve both race relations and the educational attainment of minority students. For decades this claim has been at the heart of the argument for using a wide variety of stratagems—from busing to magnet schools to “controlled choice”—to reduce racial “isolation.” From the late 1960s to the early 1980s, this was an article of faith among civil rights lawyers and many district court judges. As the noted education scholar James Coleman discovered when he began to dissent from this orthodoxy, “We should not forget how strong the consensus was at the time among social scientists that busing was an unalloyed benefit, and a policy not to be questioned.”

In his dissent, Breyer relied on social science claims about the advantages of integration, while also recognizing the extent to which they are disputed: 

Studies suggest that children taken from those [highly segregated] schools and placed in integrated settings often show positive academic gains. Other studies reach different conclusions. But the evidence supporting an educational interest in racially integrated schools is well established and strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.

Thomas read the evidence differently. He accused Breyer of “unquestioningly accepting the assertions of selected social scientists, while completely ignoring the fact that those assertions are the subject of fervent debate.” Warning that the dissenters would “constitutionalize today’s faddish social theories,” he noted that a century before, scholars at reputable institutions invented pseudoscientific theories that justified Jim Crow. His bottom line: “Beware of elites bearing racial theories.”

The most serious shortcoming of Vignarajah’s introductory essay is the misleading way he uses the term “resegregation.” He emphasizes the centrality of this issue by calling the Seattle and Louisville litigation the “resegregation cases”—a novel appellation. He declares that 15 years after that decision “the unabated resegregation of America’s schools has confirmed Justice Breyer’s fears, as many schools and school districts across the country are more racially segregated today than they have been since the late 1960s.” He never bothers to describe the measure he uses to establish this incendiary claim, mention alternative measures, or explain how his favorite measure is influenced by demographic change.

In his appendix, Vignarajah reprints a chart from a book by Charles Clotfelter, a well-respected economics professor at Duke. Clotfelter and his colleagues analyzed the hundred largest school districts in the South and border states between 1994 and 2004—years in which many court orders were terminated.  They found, “somewhat to our surprise, no evidence of resegregation.” Moreover, they concluded that the declining number of white students in schools attended by minority students “appear[s] to be driven by the general increase in the nonwhite percentage of the student population rather than district policies.” In the cities they examined, “the share of black students attending 90–100% black schools fell slightly” due to the influx of Hispanic students. A 2019 analysis conducted by the Washington Post found that “the number of children attending U.S. public schools with students of other races has nearly doubled over the past quarter-century, a little-noted surge that reflects the nation’s shifting demographics.”

One would expect that a well-educated law clerk who worked on such an important case and had many more years to ponder the issue would be more attuned to the subtleties of desegregation issues. But all is not lost. Read together with the majority opinion of Roberts and the concurring opinions of Kennedy and Thomas, Breyer’s dissent helps us understand the issues at the heart of our decades-long desegregation debate. So, skip the introduction and read what all the judges have to say. You can find them all, free of charge, here.