Brown v. Board Fails: Resegregation is Accidentally on Purpose

By Julian Vasquez Heilig, Ph.D., @professorjvh on Twitter

Since it’s inception the United States has enacted and supported racially discriminatory policies. On May 17, 1954, the US Supreme Court handed down a unanimous decision in Brown v. Board of Education, outlawing racial segregation in our nation’s schools. Brown overturned the doctrine of “separate but equal,” which the Court had established in the 1896 case of Plessy v. Ferguson. Brown marked a turning point…

Fast forward to May 17, 2014… it was the 60th anniversary of Brown v. Board of Education…

Nevada “rancher” Cliven Bundy and current L.A. Clippers owner Donald Sterling are not racist. At least that would they would have you believe. Cliven Bundy stated to CNN:

“At least a half-dozen (black) people sitting on the porch, they didn’t have nothing to do.

Because they were basically on government subsidy, so now what do they do?” he added in comments first reported by The New York Times and later seen on video. “They abort their young children, they put their young men in jail, because they never learned how to pick cotton.

And I’ve often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy?   They didn’t get no more freedom. They got less freedom.”

Bundy’s “apology” to CNN was:

“Maybe I sinned, and maybe I need to ask forgiveness, and maybe I don’t know what I actually said, but when you talk about prejudice, we’re talking about not being able to exercise what we think. … If I say Negro or black boy or slave, if those people cannot take those kind of words and not be (offended), then Martin Luther King hasn’t got his job done yet. We need to get over this prejudice stuff.”

Donald Sterling, LA Clippers owner, also has been in the news in the past year. The conversation that his mistress taped included some incendiary comments.

” In your lousy f***ing Instagrams, you don’t have to have yourself with — walking with black people Yeah, it bothers me a lot if you want to … broadcast that you’re associating with black people. Do you have to?”

There is more. But you have probably already read and seen it. Then, in Sterling’s Anderson Cooper CNN “apology” he stated:

“That’s one problem I have. Jews, when they get successful, they will help their people — and some of the African-Americans, maybe I’ll get in trouble again, they don’t want to help anybody.”

He continued with racialized comments about Magic Johnson:

“I think he should be ashamed of himself. I think he should go in the background. But what does he do for the black people? He doesn’t do anything … I just don’t think he’s a good example for the children of Los Angeles. He would go and do what he did. And then get AIDS. I mean come on.” (In fact, Johnson has HIV, not AIDS.)

Sterling is “consistent.” CNN reported:

A top [LA Clippers] executive accused Sterling of running the Clippers with a “plantation” mentality. Federal prosecutors accused his rental company of                             refusing to lease Beverly Hills apartments to African-Americans. And a group of tenants accused him of “numerous discriminatory statements and housing                      practices.

“Actions speak louder than words, and Mr. Sterling’s actions have been consistent,” former NBA star Kareem Abdul-Jabbar told CNN’s “The Lead with Jake Tapper.”

Abdul-Jabbar, who coached the Clippers for about three months in 2000, said Sterling has “a bad reputation.”

So why lead a post about accidental on purpose segregation with Cliven Bundy and Donald Sterling?! I’ll come back to them to conclude…

Photo source

So what is the status of segregation 60 years post Brown v. Board of Education of Topeka? In the post How can we desegregate re-segregated public schools? (again) we wrote:

“Landmark legal victories over de jure segregation in the wake of Brown v. Board of Education of Topeka[1] helped to secure dramatic decreases in the racial and ethnic segregation of schools in subsequent decades, especially in the formerly segregated American South[2]. The promise of the post-Brown era proved ephemeral, however; nearly sixty years after the Supreme Court ruled that segregation was inherently unequal, American schools remain remarkably segregated by race and ethnicity.[3] Since the 1980s, the de facto segregation of schools has rapidly intensified, especially in the South and for Hispanic/Latino populations.[4] Indeed, during the 1990s the proportion of Black students in majority-White schools decreased 13 percentage points, to a level not seen since 1970.[5] This re-segregation of schools has been facilitated by weak executive enforcement of civil rights provisions and continued judicial retrenchment on school integration, exemplified by Board of Education of Oklahoma City v. Dowell[6] andFreeman v. Pitts,[7] which diminished desegregation standards and resulted in the release of hundreds of districts from their court-imposed desegregation orders.

In 2007, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1[8] dealt another blow to integration efforts, rendering unconstitutional school assignment plans that use individual student race or ethnicity as the sole factor in school assignment, punctuating the steady decline in support for school desegregation policies.[9] In the case, which was decided with Meredith v. Jefferson County Board of Education, [10]the Court ruled that the racial balancing efforts of the Seattle and Louisville school districts, which were undertaken voluntarily in the absence of evidence that either district had deliberately practiced de jure racial discrimination, were impermissible and unconstitutional violations of the Equal Protection Clause.[11] Consequently, districts that had been using such policies to achieve and maintain racial and socioeconomic balance across campuses were denied the primary weapon with which they had historically combated racial and socioeconomic segregation.

In the Seattle student assignment plan, which was challenged under Parents Involved, students were permitted to apply to any high school in the district. However, if the demographics of any school deviated from the demographics of the district as a whole (within a specified percentage), a racial “tiebreaker” was used to determine which students were admitted to the school. Thus, if a school had too many whites, admission might be restricted to only non-whites (including Asians, Latinos, Native Americans, or African Americans); if a school had too few whites, admission might be restricted to only whites. As the foregoing illustrates, the Seattle plan was concerned only with racial balance among “whites” and “non-whites,” not with the racial distribution within non-white populations. In the Jefferson County, Kentucky plan, which was challenged under the Meredith case, students were classified as either “black” or “other,” with students assigned to schools in such a way as to ensure that schools were no less than 15 percent and no more than 50 percent black.

While acknowledging the pernicious effects of segregation, the Court held in Parents Involved that the use of racial classifications in Seattle and Louisville were not “narrowly tailored” to achieve a “compelling” government interest. First, the Court held that there was not a compelling interest that justified the use of race in their student assignment processes.[16] In the plurality opinion, Roberts argued that while racial diversity is a compelling interest in higher education, the ruling in Grutter v. Bollinger[17] and Gratz v. Bollinger[18] did not apply to primary and secondary education, because the districts in question (i.e., Seattle and Louisville) did not use an individualized consideration of students and utilized a very limited racial perspective on diversity (i.e., “white” vs. “non-white”).Moreover, the cases of Seattle and Louisville did not constitute a compelling interest because neither district had a legacy of past discrimination that the plans were designed to remedy.[20] In addition, the Court ruled that the plans of Seattle and Louisville were not sufficiently “narrowly tailored” to constitutionally justify the use of race.[21] Indeed, Roberts notes that both plans were exclusively focused on achieving demographic goals, and not towards achieving any benefit of racial diversity.[22] Moreover, the Court ruled that neither district had made a “serious, good faith consideration of workable race-neutral alternatives,” as required under Grutter.[23] Indeed, the Court held that the districts failed to show that the use of race was necessary to meet its diversity objectives, arguing that similar effects could have been achieved without race-conscious means.”

A look at resegregation in our schools

So what has been the result of a series of cases ending busing, desegregation orders, and ban on the use of race in Parents Involved? Together they have led to the re-segregation of public schools. Dr. Gary Orfield and The Civil Rights Project/Proyecto Derechos Civiles at UCLA released a series of studies this week analyzing the most recent data on segregation. Here is a sample of what they have found:

Changing U.S. Demographics and SCOTUS Transform School Segregation Landscape 60 Years After Brown v Board of Education Segregation Increases after Desegregation Plans Terminated by Supreme Court

North Carolina’s Black Students Increasingly Isolated in Schools after Many Desegregation Plans Dissolved Racial and Economic Isolation Intensifies Despite an Increasingly Multiracial Enrollment.

New York Schools Most Segregated in the Nation UCLA report identifies alarming trends throughout the Empire State.

My selfie with UCLA’s Gary Orfield after his AERA Brown lecture in DC

Latina/os and Segregation

What is that state of segregation for Latina/os and more specifically immigrant students? The Civil Rights project found that California is the most segregated state for Latino students and has little to Celebrate 60 Years After Brown v. Board of Education. In the post Breaking News: School Segregation Study Strikes A Nerve, I discussed a peer-reviewed study we authored last year that focused specifically on Latina/os. I wrote:

Our study Expansive School Segregation in Texas: Predicts Accountability Rating has caused a stir. (Click here for study) The Spanish media was first on the story when Univision produced Study Shows Triple Segregation Persists in Texas Schools. Then the AP picked up the story and the study went national.

Photo Source

The AP story reported:

The study by education professors at The University of Texas at Austin found that minorities, English language learners and poor kids have become concentrated into low-performing schools and districts, decreasing their chances to overcome these impediments. In two-thirds of the schools that are intensely poor, English language learners are the majority of students.

“Our research revealed that schools where students are segregated by race/ethnicity, (socio-economic status) and language are overwhelmingly rated as low-performing,” said Julian Vasquez Heilig, associate professor in the College of Education. Those schools also are staffed with some of the lowest-skilled teachers turnover tends to be high, he added.

In conclusion, we have a Sterling/Bundy court system and legislatures in the United States. Our legislative and judicial bodies claim that their policies are race neutral, but they are well aware of the disparate impact of segregation in the data, and they continually shrug their shoulder in denial (ala Bundy and Sterling) that their action or lack of action is racist or without racial intent (similar to the argument being used to suppress voting), when in fact, prima facie, they do. The powerful legislative and judicial bodies in the US accidentally on purpose fomented resegregation. As I have written about previously on Cloaking Inequity, this accidentally on purpose intent is the case with segregation, criminal justice, college access, and even high-stakes testing . The American judicial system and legislatures have taken an overt Jim Crow system of racial prejudice and discrimination and just moved it underground to a covert system that continues to have disparate impact.


This post originally appeared on Cloaking Inequality, and was republished with permission. Follow Julian Vasquez Heilig on Twitter: @professorjvh. 

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