What Can't Brown Do for You?

After a half-century, Brown v. Board of Education has a bittersweet lesson to teach us: there are some problems courts can solve, and there are some they can’t. The trouble is, we aren’t listening.

Legally mandated racial discrimination was always a violation of the letter and spirit of the Fourteenth Amendment, which guarantees to all people "the equal protection of the laws." Today, anyone reading the 1896 Plessy v. Ferguson decision that established the "separate but equal" doctrine, or the 1849 Massachusetts school segregation case on which Plessy relied, will be tempted to scream: "what part of the word ‘equal’ did you not understand?!?"

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Because mandatory public school segregation violated the Bill of Rights, it was a legal problem amenable to a legal solution. But the unanimous Supreme Court victory in Brown was so momentous that some of its champions lost sight of its limitations. In the wake of Brown, many people came to believe that the courts could do more for American education than just interpret law. They began to think that the courts could bring about specific social and educational outcomes with the stroke of a judge’s pen.

Civil rights advocates wanted to ensure that the education offered to black students was every bit as good as that offered to whites, and they doubted that this could happen so long as public school classrooms were not fully integrated.

But Brown did not require, or produce, integration. What Brown did was to strike down compelled segregation. Any district that treated students in a race-blind fashion, and that provided avenues for desegregation to occur (such as parental choice of school), was deemed to be in compliance, whether or not students of different races actually intermingled as a result.

Given their dramatic success in Brown, civil rights attorneys returned to the Supreme Court in 1968, and argued in Green v. County School Board of New Kent County that a lack of racial mixing should be considered unconstitutional whether or not it was the product of compulsion. They won.

But what Brown could not do for America, Green was equally incapable of achieving. Public schools are little more integrated by race today despite decades of court-ordered busing, and the nation’s racial and economic achievement gaps remain tragically broad. According to the National Assessment of Educational Progress, black children are two, three, or even four times as likely to lack a basic understanding of reading and mathematics as white children. A similar chasm separates the achievement of low-income students from their middle- and upper-income peers.

Brown and Green undeniably failed to realize the dream of public education, but there are still many who believe that litigation can solve our educational problems. Only the tactics have changed. Instead of trying to bridge the education gap by litigating for integration, they have sought to do so by litigating for higher funding.

Over the past two decades, numerous lawsuits have been fought, many of them successfully, to achieve spending parity between poor and wealthier districts, or even to secure higher spending for districts serving low-income families. But have these efforts fared any better than their predecessors?

In the 1980s, the most promising test case looked to be that of Jenkins v. Missouri. As part of a court-ordered desegregation program, federal Judge Russell Clark ordered the state of Missouri to spend almost $2 billion on Kansas City schools over a twelve-year period, over and above its normal budget. The goals of this ruling were to improve integration, raise the scores of minority students, and diminish the racial achievement gap. On every count, it failed and Judge Clark terminated his order in despair in 1997.

Michigan itself has been another case in point. This state greatly reduced spending disparities between districts with the passage of Proposal A ten years ago. About three quarters of all public school funding now comes directly from the state, diminishing the effect of widely varying local wealth. Nevertheless, the public school achievement gap between Michigan’s black and white students is larger than the national average, as is its gap between poorer and wealthier students.

And public schools in Metro Detroit remain the nation’s most segregated, according to a study by the New York-based Lewis Mumford Center. A recent Detroit News story reported that 5 of 71 Detroit-area districts educate 81 percent of the black students living in those districts; 8 out of 10 white students attend schools that are, on average, 3 percent black; and 8 out of 10 black students attend schools that are, on average, 4 percent white. Racial integration statistics for Detroit-area schools go all the way back to 1968, the year Green struck down de facto segregation, and they show no improvement since then.

In light of the mounting evidence of the past 50 years, it is time we realize that the courts cannot fix everything that ails our public school system. They cannot make the institution of public schooling, as it is currently organized, fulfill our ideals of public education. But there are reforms that can.

Though independent schools have never been subjected to court-ordered integration or funding parity plans, they have come to enroll an ever larger share of minority students since the 1960s. Researchers disagree on whether public or private schools are now more physically integrated, but in any event the simple fact that a school enrolls a diverse body of students does not mean that it is integrated in a meaningful way.

A school that is integrated on paper may still have a climate that leads students to self-segregate by race. That’s why a 1998 study of school lunchrooms was so persuasive. Instead of just looking at enrollment numbers, researchers observed the voluntary lunchtime seating patterns of black and white children. What they found is that private school students were more likely to choose to sit with children of other races than public school students.

The achievement gap evidence is also striking. Though public and private schools have a comparable black/white achievement gap in the 4th grade, that gap narrows substantially by the 8th grade in the private sector, while remaining the same size in the public sector. A study of urban Catholic schools has also found that they are dramatically more successful than public schools at helping black students complete high school, gain admission to college, and complete college.

So, five decades after Brown, it’s time for Americans to stop asking what their justices can do for education, and start asking what they can do for educational justice. It’s time to give all families, black and white, rich and poor, the chance to secure the best education they can for their children, whether that education comes from a public school or an independent one.

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Andrew J. Coulson is senior fellow in education policy for the Mackinac Center for Public Policy, a Michigan-based research and educational institute. He is the author of the book Market Education: The Unknown History.