Tuesday, May 17, 2016

After Fifty Years of Failed Policies, A Federal District Court Finally Orders District to Desegregate

Chalk one up to the principle that Constitution imposes an affirmative duty on school districts to dismantle segregation and that duty does to evaporate into the ether simply by the passing of years. A district that relies on evaporation can, at some point, finally be held to account.  This is what the new decision in Cowan v. Bolivar stands for. But to appreciate the opinion's significance and not think the new order to desegregate is not crazy, one most know something of the history in the district.

On July 24, 1965, African American students sued the Bolivar County Board of Education and numerous of its members, alleging that the defendants “have pursued and are presently pursuing a policy, custom, practice and usage of operating the public schools of Bolivar County, Mississippi, on a racially segregated basis.” The district court agreed in 1969, "permanently enjoin[ing the district] from discriminating on the basis of race or color" and directing the district to “take affirmative action to disestablish all school segregation and to eliminate the effects of the dual school system.” 

What followed was a long history of the district never taking that affirmative obligation seriously.  Sixteen years later in 1985, the United States felt compelled to enter the case to pursue further relief for students.  The United States alleged that  the district had "actively pursued the . . . policies and practices [to] frustrat[e] the implementation of the Court’s [July 22, 1969] Order." Among the most egregious practices were  allowing students to attend schools in zones outside of their residence, assigning faculty and staff to schools on the basis of race, and building new schools in locations designed to maintain those schools as 100% African American. The district court granted the United States intervention and another two and half decades of fighting with the district to desist from segregative practices and reverse their effect followed.

As late as 2011, the district court cited the district's “lack[ of] will to meaningfully integrate its schools.” To that day, according to the United States, the district continued to maintain schools that were all-black or nearly so, and assigned teachers to those schools that reinforced their racial identity.  The best that appears to be said of the district was that it had developed magnet school programs that simply did not work.  This is no surprise.  In a community where school officials had resisted desegregation, why would the district expect parents to voluntarily desegregate the schools for the district?

Thus, nearly fifty years after the United States Supreme Court held in Green v. New Kent County that districts have an obligation to come forward with plans that work and "work now" to eliminate the vestiges of segregation, and that freedom of choice plans that do not work are unconstitutional, the federal district court in Mississippi has ordered Bolivar to take affirmative steps to redraw its attendance zones and finally bring integration to the district.  More specifically, the district is to consolidate its high schools and middle schools. The court in Bolivar wrote:

In this case, the constitutional violation at issue is decades of state-sponsored segregation which existed at the point Judge Keady issued his initial order in 1969. The District has not cited, and this Court has not found, authority standing for the proposition that court-ordered desegregation plans that fail to achieve the desired desegregation absolve a school district of responsibility for remedying the effects of the initial state-sponsored segregation. To the contrary, the law is clear that, “[u]ntil [a school board] has achieved the greatest degree of desegregation possible under the circumstances the Board bears the continuing duty to do all in its power to eradicate the vestiges of the dual system.” Davis, 721 F.2d at 1435. Thus, where a court-ordered plan fails to achieve desegregation, a school district or board remains obligated “to come forth with a more effective plan.” Penick, 443 U.S. at 459–60. There is no dispute here that, in violation of the Constitution, the District has operated a dual system and that, as observed by Judge Davidson’s January 2013 order, the District has failed to achieve the greatest degree of desegregation possible under the circumstances. Accordingly, the District “bears the continuing duty to do all in its power to eradicate the vestiges of the dual system.” Davis, 721 F.2d at 1435. If the District fails to discharge this duty, this Court “has broad power to fashion a remedy that will assure a unitary school system.” Penick, 443 U.S. at 459. Put differently, Judge Keady’s implementation of attendance zones places no restriction on this Court in fashioning a desegregation remedy.

A tremendous amount of credit goes to the United States and this district court.  The last decade has seen  other desegregation cases dismissed under similar circumstances.  School districts had learned to run out the clock on desegregation.  After decades of never taking steps to eliminate segregation, they would argue that demographic shifts were now the cause of segregation. Even to the extent this claim might contain a nugget of truth, it is an odd thing to suggest a district's obligation to remedy segregation could vanish if the district stalled long enough for demographics in the district to change.  Yet, this is exactly what some district courts have permitted schools to do.  

I have always argued that the issue of taking affirmative steps to desegregate must precede any analysis of demographic shifts.  Demographic shifts should become logically relevant only at the point at which the shifts overcome the affirmative efforts of districts.  Both the U.S. Department of Justice and the federal district court firmly understood and appreciated this distinction. And from this perspective, the court really had no reasonable choice but to finally force Bolivar to desegregate.

Get the full opinion here.

 

 

http://lawprofessors.typepad.com/education_law/2016/05/after-fifty-years-of-failed-policies-a-federal-district-court-finally-orders-district-to-desegregate.html

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