New Terrain for School Desegregation Efforts post-Seattle/Louisville Supreme Court’s Ruling

By Stephen Menendian, Research Associate at the Kirwan Institute

Amidst a national conversation over alarming re-segregation trends in the wake of the Supreme Court’s recent ruling in the Seattle and Louisville school districts and reflection over the 50th anniversary of the Little Rock Nine, the terms of the debate are shifting in subtle and not-so subtle ways.

A few weeks ago, the New York Times reported on a school rezoning plan in Tuscaloosa, Alabama (http://www.nytimes.com/2007/09/17/education/17schools.html?_r=1&oref=slogin) that would require hundreds of black students attending integrated schools in the northern part of the district to leave them for nearly all black schools in the western end of the district. To illustrate just how segregated the schools in the western zone are; out of 2,330 students, only 19 are white. The high school is 99 percent black. The plan would affect 880 students in a district of 10,000 students, or almost 10% of the entire district.

How can such a plan be justified? The superintendent and school board president claims that the rezoning was a “colorblind effort” to relieve overcrowding by “optimizing the use of the city’s 19 school buildings.”

Nevertheless, the superintendent also admitted that they sought to draw more whites back into Tuscaloosa’s schools by making them attractive to parents of 1,500 children attending private academies founded after court-ordered desegregation began in the late 1950s.

How can those claims both be true? Since when did a clear purpose to lure white students into the school district become “race-neutral”? Since when is the category “white” race-neutral? How can race not be at issue when at least part of the intent is to lure student bodies back into the public schools that left when courts ordered desegregation? Was it merely coincidence that you’d be moving hundreds of black students to virtually all black schools? How else was the school board to conclude that this plan would make Tuscaloosa’s schools more attractive to students who attended private schools to avoid integration? If the school board is purportedly rezoning to alleviate overcrowding, why would they seek to draw more students into the district?

Part of the answer to these questions can be found in the most recent jurisprudential turn in the U.S. Supreme Court. The parameters of race policy are now most clearly confined by what the Court calls “racial classifications”. Government classifications that categorize individuals on the basis of their race are now presumptively unconstitutional, regardless of their purpose. For that reason, policies that are race-conscious, but that do not draw distinctions on the basis of a racial classification (such as a policy of promoting integration) are, in the view of the court, not presumptively unconstitutional and furthermore, probably enjoy a presumption of legality.

On the flip side, where there is no racial classification, proving discrimination under the Equal Protection Clause requires a showing of intent to discriminate. Demonstrating a disparate racial impact is insufficient. A discriminatory zoning decision, for example, made at a city council meeting where residents made explicitly racist comments is presumed to be non-discriminatory unless plaintiffs could prove discriminatory intent on the part of the council members (see Arlington Heights v. Metropolitan Housing Development Corp). The sole intent of the city council may well have been to stabilize property values, and as such, with the intent of excluding poor residents from the community, they deliberately choose not to rezone the property.

At a meeting in February 2005, parents from Tuscaloosa’s two majority white elementary schools complained of overcrowding and discipline problems in the middle school their children were sent to outside of the northern enclave. These parents “urged” the superintendent to “consider sending some students being bused into northern cluster schools back to their own neighborhood.” The predictable re-segregation of Tuscaloosa’s schools that flow from the re-drawing of attendance zones may not be actionable under the Equal Protection Clause, but, ironically, No Child Left Behind may provide some measure of a remedy.

For more on this issue see “Alabama Plan Brings Out Cry of Resegregation”: http://www.nytimes.com/2007/09/17/education/17schools.html?_r=1&oref=slogin&pagewanted=all