School Desegregation Law: How the Supreme Court Went Colorblind

Rowan McGarry-Williams (PO ’21)

The integration of American public schools, once at the center of education reform, today tends to be overshadowed by debates over charter schools, accountability, and funding. Despite extensive research on the widespread benefits of integration, our schools are more racially and economically segregated now than they have been in decades, with grave consequences for poor and nonwhite students. More than perhaps any other institution, the Supreme Court has played a central role in fights over the segregation of American schools. Its 1954 decision outlawing “separate but equal” facilities in Brown v. Board of Education is generally considered the decisive intervention against school segregation and evidence of the Court’s commitment to integration. However, two later cases—Milliken v. Bradley (1974) and Parents Involved in Community Schools v. Seattle School District No. 1 (2007)—tell a different story. In both cases, the Supreme Court overlooked the history of state-sponsored segregation in favor of a de-structuralized or “colorblind” view of America’s racial divisions, thereby erecting barriers to effective integration in the public school system.

In Milliken, the Court rejected the notion of school segregation outside of the South as a structural reality rooted in public policy, casting it instead as the result of individual choice and private action. The question before the Supreme Court in 1974 was whether it could order the integration of students across school districts around Detroit, rather than simply within them. This question was unresolved by Brown due to its focus on the South: in the former Confederacy, school districts tended to comprise an entire metropolitan area, including the urban core and its suburbs. During Jim Crow, these districts adopted laws that explicitly sanctioned racial segregation within each district—what the Supreme Court called de jure (by law) segregation. Brown’s purpose was to strike down those laws. 

On the other hand, school districts were far more fragmented in Detroit (and outside of the South in general). In these areas, the urban core often comprised one district, and each suburb had its own. In Detroit, as in much of the country, the suburbs were almost exclusively white, while the city had a higher black population. Thus, the lower courts concluded that “Detroit schools could not be truly desegregated” unless each school’s racial composition reflected the “metropolitan area as a whole.” In other words, true desegregation within a school district was meaningless if that district was itself segregated. The Supreme Court disagreed. It ruled that “a federal court may not impose a multi-district, area-wide remedy… where… there is no claim or finding that the school district boundary lines were established with the purpose of fostering racial segregation.” This ruling meant that all-white suburbs could not be compelled to participate in a city’s desegregation plan unless they had adopted a law that explicitly required all-white schools, a rarity outside of the South.

Yet the racial composition of neighborhoods, and thus neighborhood schools, was, in fact, the result of explicit government policies. In The Color of Law, Richard Rothstein outlines these policies, which included segregated public housing, racially motivated zoning ordinances, redlining, and subsidies for all-white suburbs. This latter tactic was particularly pervasive. The Federal Housing Administration (FHA) and Veteran’s Administration (VA) backed suburban construction loans and mortgages contingent on the explicit exclusion of black buyers, thereby minimizing the risks of development and making homeownership affordable for middle-class whites, and whites alone. The effects of this policy were striking: by 1950, Rothstein finds, “the FHA and VA together were insuring half of all new mortgages nationwide.”

This policy fueled segregated suburbanization across the country, from the Bay Area to Chicago to New York and, of course, to Detroit itself. In Thomas Sugrue’s classic study of the city, Origins of the Urban Crisis, he writes that “every Detroit neighborhood with even a tiny African American population was rated ‘D,’ or ‘hazardous’ by federal appraisers… The FHA regularly refused loans to black homebuilders while underwriting the construction of homes by whites of a similar economic status a few blocks away.” Government officials did not pretend to be race neutral, instead explicitly segregating public housing and loan financing. Yet even this context did not convince a majority of the Supreme Court. Milliken, in effect, halted the spread of court-ordered desegregation plans outside of the South. 

Over forty years later, the decision in Parents Involved invoked similar myths of de facto segregation and advanced colorblindness as a Constitutional doctrine. Rather than forced desegregation, Parents Involved centered on the legality of voluntary integration. Seattle and Louisville were among the few cities who maintained voluntary integration programs even after the court released much of the South from desegregation orders. A group of parents brought forward a lawsuit that claimed these integration plans violated the 14thamendment by taking race into account as an admissions factor. Generally speaking, both Seattle and Louisville used race as a “tiebreaker” in cases of high demand or as an impetus for reassignment in cases of racial imbalance, with the intent of making each school broadly reflect the racial composition of the metropolitan area as a whole.

The Supreme Court, led by Chief Justice John Roberts, ruled these systems unconstitutional. In Roberts’s opinion, he interprets Brown’s rejection of policies dictating racial segregation as a rejection of any race-based school assignment policy. “Racial balancing,” he writes, “is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” He thus conflates the “racial balancing” of Jim Crow with that of integration plans in Seattle and Louisville. Throughout, he argues that the Seattle school district has “never segregated on the basis of race,” while Louisville has “removed the vestiges of past segregation.” This is an extension of the logic of Milliken, in which the absence of a statute mandating total school segregation is taken as the absence of state-sanctioned segregation in any form.

Finally, in what is perhaps the most explicit statement of a colorblind, de-structuralized vision of racial inequality in the Court’s recent history, Roberts argues: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This worldview conceives of racism as simply individuals judging individuals differently on the basis of race. However, it fails to take into account structural racism—the systems and institutional practices that are embedded within public and private policy to maintain white supremacy, such as those outlined by Rothstein and Sugrue. Every American could suddenly become “colorblind,” but it would do little to remedy the racial segregation of housing or narrow the black-white wealth gap.

The application of this worldview to school desegregation law massively complicates race-conscious integration efforts at a time when schools are rapidly resegregating. A recent study of districts with voluntary integration plans found that “school racial segregation is substantially lower in districts using race in their student assignment policy than in those districts not using race, even with relatively similar levels of racial residential segregation.” Justice Kennedy’s concurrence in Parents Involved did tentatively leave room for some race-conscious measures that “address the problem… without treating each student in different fashion solely on the basis of a systematic, individual typing by race.” To help clarify this vague language, the Obama administration in 2011 released a document providing guidance on potentially acceptable race-conscious policies such as considering race in school siting, zoning, and admissions decisions. However, the Trump administration has rescinded this document and replaced it with a Bush-era guidance stressing race-neutral options.

In all, Milliken and Parents Involved show a reluctance to locate the roots of residential and school segregation in public policy. Yet it was public policies that subsidized all-white homeownership while leaving black (and many immigrant) neighborhoods to the whims of displacement and a predatory real estate industry. Segregation in neighborhoods and education today results from the legacy of these policies as well as laws that continue to lock low-income and nonwhite Americans into inferior homes and schools. Indeed, research shows that when given the means and the ability, residents living in low-income, segregated neighborhoods choose to move elsewhere. Yet the Supreme Court continues to understand segregation as a de facto matter of individual choice and private action. The reality is far harsher: in every corner of the country, segregation was built de jure through public policy and continues to this day as a public policy decision, driven by our collective failure to remedy it.

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