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The Collapse of the Post-Brown Dream


This story reminds me of something I’ve been meaning to talk about. Some New Jersey legislators are proposing that the state end “the special financing given to the state’s poor [school] districts.” Since this funding exists because the New Jersey courts found unequal school funding to be unconstitutional this hopefully won’t go through even if they try it, but it reminds us of the depressing situation that exists in far too many states.

Some history here. Earl Warren, as many of you know, resigned in 1968 so that LBJ could appoint his replacement, but LBJ screwed it up by nominating his long-time crony Abe Fortas to the position. (The problem wasn’t that Fortas wasn’t qualified–he was certainly far more able than the man Nixon chose instead–but that he had serious ethical problems.) Because Fortas had to resign soon after that, Nixon got two appointments right off the bat. This had less impact than one might think, partly because Blackmun ended up being a moderate and because Burger was such a catastrophic bungler that Brennan retained more influence that the court’s lineup would suggest. But one one issue it had a massive historical impact: school desegregation and equality.

The Burger Court issued two 5-4 decisions in the early 70s (both of which all 4 of Nixon’s appointees joined) that effectively ended the desegregation that the Court required in 1954 but (except for a brief period at the end of the Warren Court) never followed up on very assiduously. The first, San Antonio v. Rodriguez, upheld Texas’ system of funding its schools through local property taxes, ensuring that affluent areas would have much higher levels of funding (and also creating further incentives for white flight.) Thurgood Marshall’s dissent in this case is almost certainly the strongest opinion of his judicial career. And then, for the coup de grace Milken v. Bradley held a desegregation plan in Detroit could not involve the entire Metropolitan area unless it could be proven that every single individual school district (as opposed to the system in Detroit proper, which everyone conceded had an extensive history of intentional segregation) had engaged in de jure segregation. In a sense, calling this a retreat from Brown is too generous. Combining these two decisions, states were explicitly permitted to maintain school systems that were segregated and unequal. In his dissent, William O. Douglas connected the dots:

If this were a sewage problem or a water problem, or an energy problem, there can be no doubt that Michigan would stay well within federal constitutional bounds if it sought a metropolitan remedy….Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education. he State supervises schoolsite selection. The construction is done through municipal bonds approved by several state agencies. Education in Michigan is a state project with very little completely local control, except that the schools are financed locally, not on a statewide basis. Indeed the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972. Yet the school districts by state law are agencies of the State. State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race.


Today’s decision, given Rodriguez, 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.

This is all correct. The distinction between du jure and de facto discrimination in cases such as this is one without a difference. The state, which is bound by the 14th Amendment, is responsible for drawing largely racially homogeneous school districts, and funding them unequally. And when the sanctity of district boundaries are transcended for countless other reasons the sophistries Burger piled on top of one another are particularly apparent. But, at any rate, the Court had ruled that states could insulate themselves from having to desegregate their schools as long as they had suburban districts that themselves didn’t have a history of explicit segregation (often because residential segregation meant they didn’t have to.)

The result of this is that the school system in Detroit is still essenitally segregated today. Make sure to scroll to the numbers at the end. Keeping in mind that the Dissimilarity Index of schools in the South in 1968 was about 83, these numbers are a national (and, to me, local) disgrace. Detroit, Chicago, New York, Cincinnati, Newark, and Cleveland remain above 80, even higher scores than Birmingham (and in many of these cases the trends are getting worse, not better.) New York state, at least, has a court order requiring equal funding, but it hasn’t been implemented yet. More than 50 years after Brown, American schools in many cities remain largely segregated, and in many cases there are egregious disparities in resources and other measures of quality as well.

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