Who has the most racially segregated schools in the US? According to a new report out of UCLA, that distinction falls on New York State. The roots of New York’s segregation go back to a 1974 Supreme Court decision that isnt as infamous as it should be. In Milliken v. Bradley, 5 justices decided that there were really 2 kinds of school segregation. New York’s, as you might guess, is the legal kind – though both kinds suck separately, equally and spectacularly.

The illegal kind of segregation happens when a school board official sits down at a map, and with evil intent sketches out school districts that keep blacks with blacks and whites with whites. This is “de jure” segregation. After review, a Federal Judge will send the miscreant back to his map, with instructions that he sketch out nicely-integrated school districts. He does, the Judge signs off, and life goes on, desegregated.

Years pass and some neighborhoods do better than others. Affluent people buy into better school districts. Poor people get displaced by higher property values, and get pushed into inferior school districts. Since there’s a wide disparity in the US between incomes of whites, blacks and hispanics – and persistent discrimination among landlords, realtors, and other private parties – the result is a return to racially segregated schools. And since schools across the US tend to be locally funded, you dont just get segregated public schools – you get poor minority kids in underfunded schools, and middle-class white kids in well-funded schools.

The kicker comes when the next-generation public school board official gets his arsenio hauled into Federal Court – only to receive a pat on the head. Because y’see this kind of segregation, which just kinda sorta happened (wink wink), is called “de facto” segregation – and it’s been legal as pie since 1974. Under Milliken, a Federal Judge cant force state officials to throw out the old districting map simply because it results in segregated schools. If there were no evil intent when the districts were drawn, the state can kick back and enjoy its aparteid-by-omission. While school board officials arent allowed to create segregated districts with their pencils – they arent required to undo them with their erasers.

The Milliken case came out of Detroit, where poor, black, city school districts abutted affluent, white, suburban school districts. “Milliken” was himself the governor of Michigan – sued by Detroit residents who objected to the state’s school-districting scheme because, by following existing municipal boundaries, it resulted in deeply segregated schools. The plaintiffs argued that the distinction between “Detroit” and “Suburb” was just a line in the dirt – that the state was required to cure racial segregation, or run afoul of Brown v. the Board of Education‘s holding that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The lower court agreed with plaintiffs, and ordered that city and suburban districts be integrated across the city line.

The Supreme Court disagreed. Chief Justice Burger wrote, “The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils.” (Emphasis supplied.) Burger conveniently overlooked another passage from Brown: “Does segregation of children in public schools solely on the basis of race… deprive the children of the minority group of equal educational opportunities? We believe that it does.” The modifiers “state-mandated” and “deliberately maintained” arent there. The distinction between “de jure” and “de facto” segregation isnt there. Under Brown, there was just one kind of segregation: the illegal kind.

Milliken went beyond merely undercutting Brown – it managed to undercut the most infamous case in US history, Plessy v Ferguson, which in 1896 validated the doctrine of separate-but-equal. Milliken succeeded in validating separate-but-UNEQUAL – a step backward from, and more regressive than the Jim Crow South.

In Milliken, the Supreme Court reversed the decision of the lower federal court, which would have required the state to seek an “area-wide” plan to cure segregation, rather than relying on a “city-wide” plan. The lower court’s eminently sensible solution to the segregation problem would have moved some city kids into schools in the suburbs, and some suburban kids into schools in the city. The distances were modest – this “area-wide” plan generally had kids traveling shorter distances than the “city-wde” plan. But the Supreme Court decided there was no problem at all, because “There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort.” Thus the holding of Millken is “Segregation Happens” (with a shrug). Hey, wuddyagonnado….

Justice William O. Douglas – the same guy who gave every American a right to privacy back in 1965 – wrote a brilliant dissent, which we can only hope will become law one day. Douglas is among the most gifted writers the Court ever had, with an exceptional talent for nailing down knotty issues in a few tight paragraphs. You dont have to be a lawyer to enjoy Douglas at his best – though suffering through a few of Kennedy’s or O’Connor’s mangled texts helps speed the appreciation. A link to his full dissent is given below, and it’s worth reading in its entirety. Unable to improve on his eloquence, Douglas closes here, his thoughts as apropos of 1974 Detroit as they are of 2014 New York:

“Today’s decision… means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only “separate” but “inferior.” So far as equal protection is concerned, we are now in a dramatic retreat from the 7-to-1 decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.

“There is, so far as the school cases go, no constitutional difference between de facto and de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system just as surely as did those States involved in Brown v. Board of Education when they maintained dual school systems.

“The issue is not whether there should be racial balance, but whether the State’s use of various devices that end up with black schools and white schools brought the Equal Protection Clause into effect. Given the State’s control over the educational system in Michigan, the fact that the black schools are in one district and the white schools are in another is not controlling — either constitutionally or equitably…. It is conceivable that ghettos develop on their own, without any hint of state action. But since Michigan, by one device or another, has, over the years, created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations.”

 

Refs:

Douglas’s dissent: http://supreme.justia.com/cases/federal/us/418/717/case.html#757 (you have to scroll down a little bit – it begins just below “MR. JUSTICE DOUGLAS, dissenting”)

full text of Milliken: http://supreme.justia.com/cases/federal/us/418/717/

http://en.wikipedia.org/wiki/Milliken_v._Bradley

http://en.wikipedia.org/wiki/Plessy_v._Ferguson

http://en.wikipedia.org/wiki/Brown_v._Board_of_Education

full text of Brown: http://supreme.justia.com/cases/federal/us/347/483/case.html

http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/ny-norflet-report-placeholder

bonus material: http://en.wikipedia.org/wiki/Griswold_v._Connecticut