Judiciary
HomepageI would like to thank you, Mr. Chairman and members of the Subcommittee, for inviting me to testify on the issue of school desegregation, otherwise known as school busing. Many persons I meet are quite surprised when I tell them that I spend a lot of time in federal courts testifying on school busing issues. They say, "I thought that problem was over a long time ago." I assure them, as I assure you today, that the school busing issue is very much alive in America and promising to survive well into the 21st century, fifty years after the Supreme Court decided Brown v. Board of Education.
I am pleased to be here today to give you a brief overview of the current status of school desegregation in this country, where some of the current problems are, and what Congress might do to help resolve the problems. My comments are based on nearly thirty years of research, writing, and court testimony in this field, including on-site consulting with more than forty different school districts. I will also draw on the results of a national survey of school desegregation conducted in 1990 by the Department of Education, for which I was a Co-Principal Investigator.
Current Status
According to this 1990 survey, almost 700 school districts nationwide have formal desegregation plans, and the majority of these plans are either court-ordered or mandated by a state or federal agency. Most of the court cases are at least twenty years old, and many are far older. About 60 percent of our largest 150 school districts have desegregation plans of some type.
Although we do not see much publicity about this, the great majority of desegregation plans today still use some form of mandatory busing to attain racial balance requirements or quotas. In its 1971 Swann decision, the Supreme Court said that busing for racial balance was only a starting point--a means to an end of dismantling the dual school system. In fact, however, these racial balance requirements have instead become a rigid bottom-line goal for nearly all desegregation plans. And, despite the Supreme Court's repeated insistence that court supervision should be temporary, and that local control should be reinstated once compliance with court orders has been demonstrated, many court-ordered busing plans are still in place.
This is not to say that there has been no progress. As recently as ten years ago, mandatory busing was even more prevalent than today, and very few school districts had been granted "unitary status" (which means termination of the court order). In the past ten years, however, voluntary desegregation plans have become more commonplace, especially with the use of magnet schools, and a growing number of school districts have been granted unitary status.
The major impetus for unitary status has been two Supreme Court decisions, Dowell v. Oklahoma City and Pitts v. Freeman for DeKalb County, Georgia, which clarified exactly what a school district had to do to attain unitary status. Before these two decisions, most school districts were under the impression--reinforced by a lot of lower court decisions--that their court-ordered plans were more or less permanent. Most of these school districts adjusted their student assignment practices every few years to maintain racial balance in all schools.
After the successful petitions by Oklahoma City and DeKalb County, a number of other school districts followed their lead and have received unitary declarations from lower courts. For example, during 1994 I testified in four unitary hearings unitary, all of which were successful to some degree:
-Savannah, Georgia, had converted a failed mandatory busing plan to a voluntary plan in 1988; the voluntary plan with magnet schools was a success, and they filed for unitary status in 1993. It was opposed by the Justice Department but was granted by the District Court in 1994. Justice did not appeal.
-Columbus, Georgia, maintained mandatory busing for racial balance between 1970 and 1980. After they stopped making annual adjustments to attendance zones, demographic changes led to greater imbalance, and the NAACP Legal Defense Fund petitioned for additional relief. The school district then filed for unitary status in 1992, and it was granted by the District Court in 1994. LDF has appealed to the 11th Circuit Court of Appeals.
-Dallas, Texas, maintained a desegregation plan for twenty years, and it finally filed for unitary status in 1993 after tiring of continued intervention in school policies by plaintiffs and the federal court. The District Court granted partial unitary status (including student assignment) in 1994
. -Wilmington, Delaware, is the only metropolitan consolidation and mandatory busing plan ordered by a federal court. After maintaining a very high degree of racial balance for about 14 years, the State of Delaware filed a motion for unitary status in 1993. Although the motion was nearly withdrawn in favor of a consent decree that would have continued mandatory busing for many years, a successful intervention by the Delaware Legislature led to a unitary declaration by the District Court in 1994. It is on appeal at the present time.
During 1995 a number of additional unitary status declarations have occurred, including those for Denver, Colorado; Buffalo, New York; and Broward County, Florida. I have just finished testifying in a unitary hearing in St. Louis, Missouri, and I am currently consulting with several other school districts who are petitioning for unitary status. I believe that most of these districts will also receive unitary status within the next year or two.
Given these experiences, I am convinced that the majority of school districts who are currently under court-ordered desegregation plans have satisfied the legal requirements for unitary status. What has come to concern me, however, are the number of school boards that do not want unitary status, now that it is within reach.
The Problem of Unitary Status
I believe there are three major reasons why school districts fail to seek unitary status, even when it appears that they have satisfied the legal requirements.
The first and most important reason is money. The best examples in this regard are St. Louis and Kansas City, Missouri, who have received well over $2 billion from the State Treasury to implement the most expensive school desegregation plans in the country. In these two cases, the federal courts have profoundly altered the normal school financing process and have created unrealistic and unsustainable levels of funding (example: their pupil-teacher ratios are among the lowest in the country at about 13 to 1). Given this unprecedented amount of state funding, it is understandable why these two school boards will not voluntarily give up their state revenues. But it is also understandable why the voters and taxpayers in Missouri have repeatedly elected state officials committed to ending the court orders. Fortunately, the State is a defendant in these two cases and can (and has) filed for unitary status.
Money has been a large factor in a number of other cases. State funding for desegregation (or the prospect of such) has been an obstacle to unitary status in Phoenix and Tucson, Arizona; Indianapolis, Indiana; Yonkers, New York; and Cleveland, Ohio, just to mention a few. Unlike the Missouri cases, however, in these cases either the state is not a party to the litigation, or it has joined with the local district in opposing unitary status.
The second type of reason is political or ideological. Some school boards find that a court order offers a convenient shield for a variety of actions that might otherwise be unpopular or controversial, such as closing schools, locating schools, or reassigning faculty and administrators for the purpose of racial balance. In other cases, some school boards believe that mandatory busing for racial balance benefits the academic performance of minority students, and a court order is the only feasible way to maintain such an unpopular policy. As I show in my book, Forced Justice, modern evidence contradicts this benefit thesis, but it remains a powerful dogma in many education and civil rights circles to this day. School districts that fall into the political/ideological category include San Francisco and San Jose, California; Orange County (Orlando), Florida; and Charlotte-Mecklenburg, North Carolina. I believe that there are many more school districts than those listed here that fall into this category.
Finally, the third reason is fear of the unknown. I have consulted with a number of school boards who would like to seek unitary status but who are not confident about the outcome. This is either because the local federal judge is opposed to it, or the case has been inactive for so long that the board would rather leave "a sleeping dog lie." I prefer not name these districts for the sake of confidentiality.
Possible Improvements
Although I do not have specific legislative proposals in mind, there might be several things that Congress could do to increase the prospects of unitary status for reluctant school districts that have met their federal obligations.
First, borrowing an idea from a recent District Court order in Tampa, Florida, a school board should have only two options: either file a motion for unitary status and have a hearing, or implement whatever policies plaintiff says are necessary to attain unitary status. Not surprisingly, faced with these options, Tampa filed a unitary motion. I believe it would be useful if the Justice Department were required to list all of its non-unitary desegregation cases, and to indicate on the list what each school district must do to attain unitary status. I think such a list would generate a lot of petitions for unitary status, particularly by school boards who are avoiding unitary status for political reasons.
Second, Congress might assist the unitary process by making it possible for official intervention by a broader array of persons or agencies with a stake in the outcome of unitary status, such as parents, taxpayers, city governments, state legislatures, and so forth. This would be especially helpful in those desegregation cases where state funding is the obstacle. For example, I believe that the Cities of Phoenix, Indianapolis, and Cleveland would have filed unitary status motions for their school systems, if they had the standing do so, because of the adverse impact mandatory busing has had in those cities.
Finally, Congress should conduct a careful review of all federal funding programs to make sure that court-ordered desegregation plans are not receiving some type of priority. For example, the Magnet School Assistance Program (MSAP) gives priority points for school districts operating under court-ordered plans. I have had a number of school board members tell me that one reason they oppose unitary status is that they would lose their priority for magnet school funding.
Closing Comments
If Congress takes action in this area, some people will criticize you for trying to "turn back the clock" by ending court-ordered desegregation plans, which will in turn lead to re-segregated schools. I would like to offer three suggestions for responding to such criticisms.
First, in my experience, most school districts that have been declared unitary still maintain desegregation plans; the difference is that they usually convert to voluntary techniques--such as magnet schools--and adopt more flexible racial balance goals.
Second, Congress is merely facilitating what the Supreme Court itself has been saying for many years, that ultimately school policy in a democracy must be determined by local authorities, not by the federal courts.
Finally, if school districts do return to neighborhood schools, I would point out that the Supreme Court has said repeatedly that the only illegal school segregation is that intentionally caused by school boards, and that neighborhood schools that reflect de facto housing patterns are not now, nor never have been, unconstitutional.
Thank you for the opportunity to offer my opinions about this important issue.
. Brown v. Board of Education, 347 U.S. 483 (1954)
. See David J. Armor, Forced Justice: School Desegregation and the Law, New York,
Oxford University Press, 1995, for a more detailed analysis of school desegregation issues.
. See Lauri Steel, Roger E. Levine, Christine H. Rossell, and David J. Armor, Magnet Schools and Desegregation, Quality, and Choice, Palo Alto, American Institutes for Research, May 1993. Also, Christine H. Rossell and David J. Armor, "The Effectiveness of School Desegregation Plans, 1968-1991," American Politics Quarterly, forthcoming July 1996.
. Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971)
. Dowell v. Oklahoma City, 111 S. Ct. 630 (1991); Pitts v. Freeman, 118 L. Ed. 2d 108 (1992)
. David J. Armor, Forced Justice, Chapter 2.