Opinion: The road (to school) not taken

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During this week’s oral arguments in the Supreme Court over the constitutionality of ‘racial balance’ programs in public schools, Chief Justice John Roberts alluded to a legal distinction that continues to bedevil discussions of racial segregation in schools (and what we mean by ‘segregation’).
Questioning a lawyer for the Louisville schools, Roberts said: ‘So your arguments [for the integraion plan] do not depend in any way on the prior de jure segregation?’ The lawyer agreed that they did not.
If a student in a constitutional law exam were going to cheat, two of the terms he might scribble on his hand would be ‘de jure’ and ‘de facto.’ ‘De jure segregation’ is racial separation of schoolchildren by law (as in South before Brown v. Board of Education). ‘De facto segregation’ is racial separation caused by other factors like housing patterns and economics.
In the 1970s, federal courts upheld integration plans not dramatically different from the ones now before the Supreme Court on the theory -- call it a legal fiction, if you like -- that at some point ‘segregative intent’ on the part of government officials had infected the drawing of district lines or attendance zones. In a 1973 case from Denver, the Supreme Court said ‘proof that the school authorities have pursued an intentional segregative policy in a substantial portion of the school district will support a finding by the trial court of the existence of a dual system.’
The Denver case produced an opinion by the late Justice Lewis Powell, a white Southerner and a former chairman of the school board in Richmond., Va., which operated ‘de jure’ segregated schools before Brown. Powell plaintively asked his colleagues to discard the de fact/de jure distinction and hold school systems in both the North and the South to an ‘affirmative obligation’ to integrate schools.
In Powell’s view, a school system would be considered integrated if ‘the responsible authorities had taken appropriate steps to (i) integrate faculties and administration; (ii) scrupulously assure equality of facilities, instruction, and curriculum opportunities throughout the district; (iii) utilize their authority to draw attendance zones to promote integration; and (iv) locate new schools, close old ones, and determine the size and grade categories with this same objective in mind. Where school authorities decide to undertake the transportation of students, this also must be with integrative opportunities in mind.’
The path suggested by Powell can be dismissed as a variation on the familiar complaint by white Southerners in the 1960s and ‘70s that the North was just as racist as the South but more subtle about it. But Powell had a point. It has been lost to history, however. Now as in the 1970s, a school system with all-white or all-black schools is on firm legal ground if those patterns are produced by happenstance, but it’s in jeopardy -- and subject to elaborate remedies like busing -- if the snipe hunt for ‘segregative intent’ proves successful.
As a result, school officials who believe that racially integrated public schools are socially and educationally desirable have two choices. They can try to muster evidence that racially separated schools are distantly traceable to government action -- in the same way the princess was made uncomfortable by the pea -- or they can try to achieve racial balance through stealth measures like magnet schools. And now the second option is endangered. Things might have been different if Powell’s view had prevailed.