Introduction: The Desegregation Dilemma

Despite nearly four decades of controversy and debate over school segregation, the desegregation dilemma is still largely unresolved. The “busing” problem has received less national attention in recent years, and there are no riots, bus burnings, and school boycotts, as witnessed in earlier decades. Yet current events reveal the depth of a dilemma that has divided educators, parents, jurists, social scientists, and many other groups since the beginning of the civil rights movement. Indicators of the current desegregation dilemma are numerous. Hundreds of school districts throughout the country still impose busing for desegregation purposes, many under court orders that are now more than twenty years old. Although the types of desegregation plans have evolved to some extent, with increased emphasis on school choice, many plans still compel children to attend schools that their parents would not choose, solely for the purpose of racial “balance.” Further, after a period of quiescence, school desegregation was again the subject of several major Supreme Court decisions in 1991 and 1992. The decisions affected the length of time and the conditions under which a school district has to maintain a court-ordered busing plan. Although these decisions dispelled a common misconception that school systems have to maintain desegregation plans “in perpetuity,” it is still unclear how many school districts can or will end their busing plans. Finally, new desegregation litigation and controversies continue to surface. In 1989 a lawsuit was initiated in a Connecticut state court by the National Association for the Advancement of Colored People (NAACP) to compel desegregation between the city of Hartford and its suburban districts. A similar city suburbs desegregation strategy failed in the federal courts, but the Hartford lawsuit seeks to build on the success of school equal-finance cases under state constitutions. In 1991 the school board of La Crosse, Wisconsin, adopted a busing plan to equalize economic (rather than race) differences among schools. Reminiscent of the busing controversies of the 1970s, all board members who supported the busing plan were voted out of office in a regular and a recall election, reflecting the widespread community opposition to busing for the purpose of achieving socioeconomic balance in schools.

The Future of Desegregation and Choice

Like most issues stimulated by the civil rights movement over the past four decades, the tangled web of policy questions associated with school desegregation defies easy resolution. The debate over desegregation policy has touched upon many aspects and levels of human society, including values, law, education, and social theory; therefore, arriving a succinct set of policy conclusions, especially one accompanied by substantial consensus, is unrealistic. The debate cannot and should not be reduced simply to a matter of law, to ideological differences, or to disagreements over social science theories. Any attempt to oversimplify the desegregation issue does injustice to those with the greatest stake in its outcome, namely, the students, parents, and educators who reap its rewards and shoulder its costs. Adding to this complexity is the fact that desegregation issues have shifted so much over time that the important policy questions differ from one decade to the next. During the 1950s, the legal and value debate was over compulsory segregation, and social theorists debated whether separate schools were harmful or beneficial for children. During the 1970s, the legal and value debate shifted to compulsory desegregation and whether the benefits of mandatory busing justified its deep divisiveness and its unintended consequences. During the 1990s the debate has shifted once again, this time in several directions. The federal courts struggle with the conditions under which to grant unitary status (and dismissal) to school districts with court-ordered desegregation plans. Surprisingly, considering the great controversy in the 1970s, school boards in the 1990s debate whether to seek unitary status or, if not under court order, to adopt desegregation plans on their own. Civil rights groups are back in court, not only to oppose unitary status but also to demand even broader remedies than those granted during the 1970s. They have requested metropolitan remedies between cities and suburbs, and they have petitioned for racial parity in classrooms, discipline rates, and even academic achievement. Ironically, some of these latest court challenges have come full circle, invoking the psychological harm thesis of Brown that most legal scholars dismissed as irrelevant to the law.

Housing Segregation and School Desegregation

The issue of residential segregation has had a long history in the development of school desegregation laws and policies. Most social scientists and jurists would agree that school segregation is closely associated with racial segregation in housing, particularly in larger school systems. Residential segregation can give rise to school segregation between school systems, such as that existing between a predominantly minority city school system and its predominantly white suburban systems, and within a single school system when a neighborhood school policy reflects segregated residential patterns. The debate over the relationship between housing and school segregation arises, however, not from the mere fact of association, but from the causal interpretations applied to this association. Two major issues have framed the debates over this relationship. One issue concerns the causes of housing segregation itself, whether it arises primarily from discriminatory actions, either public or private, or from a complex set of social, economic, and demographic forces in which discrimination plays only a secondary role. The second issue focuses on the causal connections between school segregation and housing segregation and the direction of the causal relationship: the extent to which a neighborhood school policy actually contributes to housing segregation (rather than simply reflecting it) and the extent to which school desegregation contributes to integrated housing choices. On these points there is sharp disagreement between and within the social science and legal communities. The debates within the social science and legal communities have had reciprocating influences. On the one hand, a considerable amount of research on housing segregation has been generated by school desegregation litigation. On the other, a number of court decisions about the role of housing in school desegregation cases have been influenced by social science research and expert testimony. Thus the relationship between judicial policy and social science research is well illustrated by the housing segregation issue. The role of residential segregation in school desegregation law has itself passed through several stages during the past thirty years of school desegregation litigation.

The Effectiveness of Desegregation Remedies

In the complex body of case law on school segregation and desegregation, there has been one enduring feature in an otherwise variable landscape. If a school board is held liable for intentionally segregating its schools, then a federal court is obliged to order remedies that “restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” While legal scholars may disagree over the meaning of intentional segregation and social scientists may argue about the benefits of desegregation, no federal court since the 1971 Swann decision has failed to order some type of school desegregation remedy after finding de jure segregation. What constitutes an acceptable remedy? Three distinct but interrelated questions have dominated legal and social science discussions about desegregation remedies. The first is the proper scope of a remedy, particularly the conditions that trigger a systemwide desegregation plan, such as mandatory busing, that affects all schools. The second concerns the definition of desegregation and the standards that should be applied to judge whether a school or a school system is desegregated. The third is the effectiveness of particular types of plans or techniques in eliminating the dual school system and its vestiges as found by a court. Without question, the central and most difficult issue in effectiveness is the attainment of desegregated student bodies, given an appropriate standard for defining a desegregated school. All three of these areas have been subjected to vigorous debates over such concerns as the degree of court intervention in school operations, how desegregation should be measured, the problem of white flight, and the effectiveness of mandatory versus voluntary desegregation techniques. Although these issues are covered in a general way by a host of court doctrines and standards, laws, and regulations, there is much room for variations and disagreement on the specifics of desegregation remedies. There are, of course, legitimate differences among affected parties and constituencies on the questions of scope, definitions, and the types of outcomes for evaluating the effectiveness of a given desegregation remedy.

The Harm and Benefit Thesis

Of all the social science theories that have been applied to school desegregation policy, none has a longer or more important history than the harm and benefit thesis. In its simplest form, the thesis holds that school segregation is harmful to the social, psychological, and educational development of children, both minority and white, and that school desegregation is beneficial for undoing or at least ameliorating the damages from segregation and discrimination. While the harm and benefit thesis began as a purely social science theory, its apparent endorsement by the Supreme Court in Brown gave the thesis an enormous boost, elevating it from academic theory to moral authority. From Brown to the present time, the harm and benefit thesis has played a curious and bifurcated role in the evolution of school desegregation policy. Although it began as a social science theory that had apparently found its way into judicial doctrine, its role in the courts soon parted from its role among educators, social scientists, and civil rights groups. On the judicial front, a number of lower court decisions in the early 1970s stressed the harms of school segregation and the benefits of integration remedies. The Supreme Court itself never again explicitly addressed the harm and benefit thesis after Brown, however, and its judicial relevance diminished over the next three decades as the high Court majority restricted the application of Brown to government-enforced school segregation. For this reason many constitutional scholars have long maintained that the psychological harm finding in Brown is not an essential part of constitutional law. To the extent that a harm thesis can be inferred from current judicial doctrine, then, harm arises only if school (or other) segregation is sanctioned by law or official action. For many other actors on the desegregation stage, however, the harm and benefit thesis has had a far broader applicability. During the periods when the earliest formulations began to appear, such as that by Gunnar Myrdal in 1944 or the famous doll studies of Kenneth and Mamie Clark in the late 1930s, most existing segregation was in fact sanctioned by law, and thus most social science research on this issue of necessity reflected the effects of official segregation.

Desegregation Policy and the Law

Between the landmark Brown v. Board of Education decision in 1954 and Supreme Court decisions in 1991 and 1992, civil rights laws and policies, especially those affecting schools, have undergone dramatic transformations and fluctuations. After the elegantly straightforward but unprecedented principles propounded in Brown, which have not been seriously challenged in their application to schools, the Court entered what might be called the conceptual swamp of remedy. In a series of major school desegregation decisions during the 1970s, the Supreme Court grappled with a host of complex legal issues involving the definition of desegregation, the nature of remedies, the obligations of school districts, and the remedial powers of the lower courts. The period was marked by divided Supreme Court panels; conflict among numerous lower courts; intense debate among political groups, legal scholars, and social scientists; and heated controversy—and sometimes violence—in affected communities. These battles and disputes were not over the basic principles of Brown but over how school segregation should be remedied. In view of the difficult and often emotional questions involved, it is not surprising that the evolution of school desegregation law has followed a tortuous and convoluted path. Given the basic constitutional principle of nonracial classifications promulgated by Brown and related cases, there was little indication that the principle would be turned on its head in 1968 by Green v. New Kent County and the concept of affirmative integration and, even more explicitly, by the 1971 decision in Swann v. Charlotte-Mecklenburg Board of Education, which fostered policies of racial balance and racial quotas—in effect, a race-conscious policy of forced integration. In 1973 many people were surprised, if not shocked, when the Supreme Court applied the Swann concepts of mandatory busing and racial balance to northern school systems, most of which never had the statemandated “dual” school systems of the South (Keyes v. Denver). Then, when mandatory busing appeared likely to become commonplace and permanent throughout the country, the 1974 decision in Milliken v. Bradley severely restricted remedies by excluding the white suburbs surrounding the predominantly black Detroit schools.