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?!?"
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.
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.
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.
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
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?
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
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.
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.
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.
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.
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.
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.