I n 1954 the U.S. Supreme Court issued one of the most monumental decisions of its

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2 Note Reclaiming Brown s Vision: A New Constitutional Framework for Mandating School Integration By Anne Randall [Editor s note: This article is reprinted with permission from 10 GEORGETOWN JOURNAL ON POVERTY LAW AND POLICY 363, copyright 2003 by Georgetown Journal on Poverty Law and Policy.] Anne Randall J.D., Georgetown University Law Center, I n 1954 the U.S. Supreme Court issued one of the most monumental decisions of its existence. Brown v. Board of Education (Brown I) declared that state imposed segregation of public schools violated the Fourteenth Amendment. 1 During the next twenty years, the Court actively mandated integration with decisions that called for school boards to dismantle affirmatively the segregated systems that had been erected for so many decades. As opposition to school integration increased, especially opposition to busing, and the political makeup of the Court changed, the mandate from Brown I and its progeny began to be altered and restricted. The Supreme Court began to restrict the remedies that lower courts could order to achieve integrated schools 2 and reduce the level of scrutiny used when determining a school board s role in school segregation. 3 The Court has adopted the position that past discrimination has been cured, current segregation is caused by personal choices, and control needs to be returned to the local school districts. 4 Because of this retreat by the Court, parents and students are not able to use the court system to remedy the increasing resegregation of schools. The Court has always drawn a line between de jure segregation, which it may remedy, and de facto segregation, which it will not. In school desegregation cases, the Court usually scrutinizes school board actions for the necessary legal component to fit into the de jure framework. If the Court does not believe that current school segregation is caused by affirmative steps taken by state officials, i.e., the school board, it will not authorize a remedy. In the early desegregation cases, the Court was not so absolute in its focus on school board action alone, and in Swann v. Charlotte-Mecklenburg Board of Education 5 the Court left open the possibility that school segregation caused by other state actions could constitute a constitutional violation requiring remedial action by a school desegregation decree. 6 The Court also looked at the effect school board 1 Brown v. Board of Education, 347 U.S. 483 (1954) [hereinafter Brown I]. 2 Milliken v. Bradley, 418 U.S. 717 (1974). 3 Missouri v. Jenkins, 515 U.S. 70 (1995); see also Board of Oklahoma City v. Dowell, 498 U.S. 237 (1991); Freeman v. Pitts, 503 U.S. 467 (1992). 4 Gary Orfield, Housing and the Justification of School Segregation, 143 UNIVERSITY OF. PENNSYLVANIA LAW. REVIEW 1397 (1995). 5 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). 6 Id. at 23. Clearinghouse REVIEW Journal of Poverty Law and Policy January February

3 action, like the choice of a school site, had on residential segregation because of its ability to perpetuate school segregation. 7 This perspective of school board action and residential segregation was also abandoned when the Court began its retreat from the school integration fight. The Court should not have dismissed the connection between school segregation and residential segregation or the possibility that other state actions besides those by the school board could have contributed to the present state of school segregation. In this note, the author offers a new constitutional framework that would allow parents, students, and even some school boards an avenue to pursue further remedies for segregated schools from the court system. 8 While remaining in the de jure framework of the current doctrine, the Supreme Court should consider if other state actions and policy decisions have led to current school segregation or resegregation by creating residential segregation. Specifically the Court needs to examine whether zoning, urban planning, highway construction, incorporation, and lack of funding for affordable housing have contributed significantly to school segregation. State governments and local governments have both played a role in causing and perpetuating residential segregation. State legislatures have allocated zoning power, urban planning, and the ability to incorporate municipalities without maintaining much of a check on how these powers are used. Small communities have used these powers to zone out certain land uses like affordable housing and, in the North and West, 9 create its own school district. Besides using the power allocated from state governments, local governments also have been allocated money and power from the federal government over highway construction and affordable housing administration. Cities used this money to separate poor, minority, inner-city neighborhoods from wealthy, white, suburban neighborhoods. Because school boards are either tied to neighborhood attendance zones or operating one-race systems, the actions by the state and the city have had a direct impact on the present state of school segregation. Students and parents suffering in segregated schools and neighborhoods could use the unconstitutional state actions mentioned above to file lawsuits seeking remedial orders mandating school integration. Plaintiffs would need to present evidence that residential segregation, caused by state action, has caused school segregation. The court would then require the state to prove that either it has not caused the residential segregation or the residential segregation has not caused school segregation. If the state is unable to do so, then the court would order the school board to remedy the present school segregation. I. Integration s Dead End With the Court s current doctrine favoring returning control to local school districts and its liberal review of school board action, parents and students are unable to turn to the courts for help as urban schools become more segregated. A. Are Integrated Schools Even Important? There is a growing body of literature that advocates other solutions than integration to remedy the country s education problem from equalized spending to voucher programs. However, integration improves our educational system considerably and should remain a goal among politicians, educators, and parents. When urban students are integrated with suburban students there is a mixture of races and usually a mixture of socioeconomic backgrounds. Economic integration is an important and valuable 7 Id. at 7 9; see also Keyes v. Denver School District, 413 U.S. 189 (1973). 8 In Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 405 (4th Cir. 2001), the Charlotte-Mecklenburg System (CMS) actually argued that the system was not unified and that it still needed to be able to take action to remedy past discrimination. The Fourth Circuit was not swayed by the school board s argument and removed from CMS the court order, which had been in place since Swann. 9 James E. Ryan, Schools, Race and Money, 109 YALE LAW JOURNAL 249, (1999). 652 Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

4 byproduct of integration. Poverty, not race, is the biggest cause of the achievement gap, but in the urban areas the poor are usually minorities who have been relegated to the inner cities. 10 In 1995 the schools with the highest minority enrollment also had the highest incidence of student poverty. 11 James Ryan believes that poor schools cost more to run due to the increased needs of the students, that the difficulties caused by poverty might not be cured with increased spending, and that inner-city schools are poorly run. 12 Ryan also believes that inner-city schools breed an oppositional culture among their students a culture that discourages educational achievement. 13 As proof of this theory, he discusses the Kansas City, Missouri, School District, which was unable to improve its students scores on statewide tests in comparison to other students in the state, despite spending $7, per pupil. 14 Ryan s article offers strong support that integration tends to help poor students close the achievement gap. The Gautreaux Program also provides strong support for the theory that integrated schools are beneficial for students regardless of race or class. 15 The program was the result of the Supreme Court decision in Hills v. Gautreaux, 16 which held that the Department of Housing and Urban Development had used racially discriminatory policies in its administration of low-rent public housing in Chicago. 17 The program gives Section 8 housing certificates to residents of public housing and those on the waiting lists for public housing since These certificates enable the residents to move into private apartments either in mostly white suburban neighborhoods or in the city. 19 Because of the way the program is designed, it created an opportunity to test the effect of helping low-income people move to better schools. 20 The Gautreaux students that attended suburban schools received higher grades, had a lower dropout rate, attended college in greater numbers, and were employed in higherpaying jobs if not attending college. 21 The suburban students also reported having more contact with white students, whether academically or socially. 22 Although the city movers also raised their performance level, the suburban students seemed to be succeeding in school in greater numbers. The Gautreaux Program and the success of the suburban students illustrate what an integrated, academically challenging school can do for its students. As schools remain segregated or become resegregated, examples such as Gautreaux give glimpses as to what is possible and show the need to fight for the fulfillment of the Supreme Court s mandate in Brown and its progeny. 10 Id.; see generally DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993). 11 Ryan, supra note 9, at Id. at Id. at Id. at James E. Rosenbaum et al., Can the Kerner Commission s Housing Strategy Improve Employment, Education, and Social Integration for Low-Income Blacks? 71 NORTH CAROLINA LAW REVIEW 1519 (1993). 16 Hills v. Gautreaux, 425 U.S. 284 (1976). 17 Rosenbaum, supra note 15, at Id. 19 Id. 20 Id. 21 Id. at Id. at Clearinghouse REVIEW Journal of Poverty Law and Policy January February

5 B. All Deliberate Speed Forty-eight years ago the Supreme Court in Brown I 23 abandoned the doctrine of separate but equal 24 in regard to public education and ushered in the era of desegregation. In the unanimous opinion, Chief Justice Earl Warren declared that [s]eparate education facilities are inherently unequal and held that state imposed segregation deprived the plaintiffs of equal protection of the laws. 25 A year later, after arguments to determine appropriate relief, the Court remanded the cases to the district courts, which were to oversee the admittance of the plaintiffs to public schools on a nondiscriminatory basis with all deliberate speed. 26 Deliberate is defined as characterized by or resulting from careful and thorough consideration or slow, unhurried, and steady as though allowing time for decision on each individual action involved. 27 After Brown II, desegregation was more deliberate than speedy. By 1964 only 2.25 percent of all African American school children in the South were attending desegregated schools. 28 Thirteen years after the mandate of Brown II, the Supreme Court held that the time for mere deliberate speed had run out and placed the burden on school boards to come forward with plans that promised realistically to work, and to work now. 29 In Green Justice Brennan penned the well-known order for the school boards to convert to a unitary system in which racial discrimination would be eliminated root and branch. 30 Green also instructed district court judges to examine every aspect of school operations including faculty, staff, transportation, extracurricular activities and facilities to determine if a school board was operating a discriminatory system. 31 District courts adopted these criteria as a test when determining whether mandated integration was necessary. C. Remedial Measures Established The Supreme Court s first decision concerning an urban school system was decided a few years after Green. In Swann v. Charlotte-Mecklenburg Board of Education the Supreme Court established remedial measures for district courts to use in the desegregation process, including the limited use of racial ratios as a starting point, the pairing and grouping of noncontiguous zones, and the use of cross-district busing. 32 The Court did not allow the school board to blame segregated schools on segregated neighborhoods and discussed for the first time the influence that the location of schools has on residential development of a metropolitan area, especially inner-city neighborhoods. 33 The Court s decision in Swann was groundbreaking for its remedial measures and application to a city. Although the case was about a metropolitan region, it was still a southern city with a history of government-imposed segregation. In Keyes v. School District No. 1, Denver 23 Brown I, 347 U.S. 483 (1954). 24 Plessy v. Ferguson, 163 U.S. 537 (1896). 25 Brown I, 347 U.S. at Brown v. Board of Education, 349 U.S. 294, 301 (1955) [hereinafter Brown II]. 27 MERRIAM-WEBSTER S COLLEGIATE DICTIONARY (10th ed.). 28 John Charles Boger, Willful Colorblindness: The New Racial Piety and the Resegregation of Public Schools, 78 NORTH CAROLINA LAW REVIEW 1719, 1733 (2000). 29 Green v. County School Board, 391 U.S. 430, (1968). 30 Id. at Id. at Swann, 402 U.S. at Id. at Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

6 Colorado, 34 the plaintiffs were not alleging the existence of a statutory dual system but were seeking an injunction on proposed changes in the school district boundaries and an order directing the school board to desegregate the whole district. 35 In the first nonunanimous school desegregation case, the Court held that the school authorities had carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers and facilities within the school system and gave the district court the authority to place the entire city under a desegregation order. 36 Although the segregative effects of official board action could be found only in part of the system, the Court would presume that the entire system was affected unless the school board was able to show that other forces caused racial separation. 37 D. The Retreat Begins A year after Keyes was decided, the Court retreated from its previous decisions mandating affirmative action by school boards to integrate state-created segregated schools. In Milliken v. Bradley, parents and children from the Detroit school system sought relief from the segregated schools within the city. 38 The Supreme Court held that it was improper to impose a multidistrict remedy for a single district s de jure segregation without a showing of significant violations by the bordering districts. 39 By holding that there must be interdistrict violations to impose an interdistrict remedy, the Supreme Court made it difficult for central cities to extend desegregation plans to the suburbs, especially in the North and the West where school districts are usually the same as municipal boundaries. 40 A number of cases in the 1990s continued the Court s retreat from mandating desegregation in an attempt to remove federal courts from their supervisory role in the school desegregation process. 41 In a trio of cases, Board of Education of Oklahoma City Public Schools v. Dowell, 42 Freeman v. Pitts, 43 and Missouri v. Jenkins, 44 the Supreme Court began focusing on whether a school system had reached unitary status. 45 In Dowell the Green order to eliminate discrimination root and branch 46 became a good-faith test of whether vestiges of past discrimination ha[d] been eliminated to the extent practicable. 47 Although the Court has not overturned the six Green factors or the suggested remedies in Swann, the Court in Freeman did adopt the local school board s suggestion that judicial oversight may end one factor at a time. 48 The Court s most recent restate- 34 Keyes v. School District No. 1, Denver Colorado, 413 U.S. 189 (1973). 35 Id. at Id. at 201, Id.; see also Drew S. Days, School Desegregation Law in the 1980 s: Why Isn t Anybody Laughing?, 95 YALE LAW JOURNAL 1737, 1748 (1986). 38 Milliken v. Bradley, 418 U.S. 717 (1974). 39 Id. at Ryan, supra note 9, at Id. at Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991). 43 Freeman v. Pitts, 503 U.S. 467 (1992). 44 Missouri v. Jenkins, 515 U.S. 70 (1995). 45 Boger, supra note 28, at ; see also Leland Ware, Race and Urban Space: Hypersegregated Housing Patterns and the Failure of School Desegregation 2 (on file with Anne Randall). 46 Green, 391 U.S. at Dowell, 498 U.S. at Freeman, 503 U.S. at Clearinghouse REVIEW Journal of Poverty Law and Policy January February

7 ment of the Green test came in Jenkins when Chief Justice Rehnquist wrote, The ultimate inquiry is whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered. 49 The Court has shifted the burden of proof from the school boards, which had to prove that segregation was caused by other forces, to the plaintiffs claiming discrimination to prove discriminatory action by the state. 50 The most recent blow to school desegregation came from the U.S. Court of Appeals for the Fourth Circuit, which declared the Charlotte- Mecklenburg school system unitary, thereby bringing an end to the Swann plaintiffs thirty-six year quest to integrate Charlotte schools. 51 II. A New Constitutional Framework The Court s retreat from actively mandating integration to judicial abandonment of integration is a betrayal of the Court s vision in Brown and its progeny. A. The Unfulfilled Vision of Brown The Brown opinion was short and dealt with the sociology of segregation and the history of education instead of equal protection and due process. Chief Justice Warren deliberately wrote a short opinion in nonlegal language so that when the American public read it in the newspapers, they would understand it. 52 Warren had wanted the opinion to be short, readable by the lay public, non-rhetorical, unemotional and, above all, nonaccusatory. 53 He did not want to sound like he was punishing the South because he knew that shaming the region would bring even greater resistance to the order. 54 Finally, he wanted to make sure the opinion was unanimous, and to do that, he had to limit the scope of the decision. 55 A better guide to what the court was trying to accomplish with Brown is illustrated by the civil rights cases following Brown. A week after Brown was decided, the Supreme Court granted certiorari for Muir v. Louisville Park Theatrical Association. 56 Plaintiff Muir was seeking a declaratory judgment as to his rights to be admitted to the amphitheatre maintained by the city and leased to the association. 57 The U.S. District Court of the Western District of Kentucky held that Muir had not been discriminated against by the city because he had never sought to secure possession of the Amphitheater for the purpose of providing therein entertainment procured and paid for by them without cost of expense to the City of Louisville. 58 In the brief per curiam opinion, the Court vacated the lower court s decision and remanded the case for consideration in light of the Segregation Cases decided May 17, 1954, Brown v. Board of Education, and conditions that now prevail. 59 In 1956 the U.S. District Court for the Middle District of Alabama declared segregation on city buses unconstitutional. 60 In another brief per curiam opinion, the Supreme Court affirmed the Alabama court s decision 49 Jenkins, 515 U.S. at Boger, supra note 28, at Belk v. Charlotte-Mecklenberg Board of Education, 269 F.3d 305 (4th Cir. 2001). 52 RICHARD KLUGER, SIMPLE JUSTICE 898 (1975). 53 Id. 54 Id. at Id. 56 Muir v. Louisville Park Theatrical Association, 347 U.S. 971 (1954). 57 Sweeney v. City of Louisville, 102 F. Supp. 525, (W.D. Ky. 1951). 58 Id. at Muir, 347 U.S. at Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala. 1956). 656 Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

8 and cited Brown I as controlling precedent. 61 In the years following Brown I and Brown II, the Supreme Court expanded the holdings that [s]eparate education facilities are inherently unequal 62 and applied it to other governmentsponsored segregation. In Swann and Keyes the Supreme Court discussed the connection between the location of schools and the racial makeup of neighborhoods. Chief Justice Burger noted that [p]eople gravitate toward school facilities, and schools are located in response to the needs of the people. 63 The policies of building schools only to accommodate a certain neighborhood or locating the school away from the inner city, along with neighborhood zoning, not only promote residential segregation but also further lock the school system into the mold of separation of the races. 64 In Keyes the Court also found a connection among school location, attendance boundaries, and Denver s housing market and noted that, by disturbing one integrated community, the racial makeup of neighborhoods throughout the city would be affected. 65 The Court in both of these cases was not holding that school boards were solely responsible for residential segregation, but it was recognizing that many city neighborhoods were segregated, which is only reinforced and complicated by school board actions. B. Reclaiming the Vision by Shifting the Burden of Proof A principle in the early school desegregation decisions, especially Swann and Keyes, was that the courts were attempting to correct violations with deep roots in both school and housing discrimination. 66 Building from this principle that was abandoned by the Milliken Court, if a school is segregated because of residential segregation, the Court should not assume that the residential segregation was caused by choice but instead should require the state and the city to prove that their actions did not contribute to the current level of segregation. Although this section of this note is entitled A New Constitutional Framework, the theory is actually not a drastic divergence from established constitutional doctrine. However, in order for a constitutional theory requiring school integration based on state-imposed residential segregation to be feasible, the Court would have to shift the burden of proof back to the state, thus requiring the state to prove that state action did not cause the present segregation in neighborhoods and schools. By shifting the burden, the Court would also have to abandon its notions that residential segregation is caused by private choice and that past vestiges of state-imposed segregation have been cured. As illustrated below, if the Court underwent this examination, it would find ample state action to support a finding of de jure segregation. The theory that both residential segregation and school segregation had roots in state action, which the Supreme Court noted in its previous cases, was forgotten when the Court decided Milliken and has not been reconsidered. 67 In addition to resurrecting the Court s theories about how residential segregation and school segregation are linked, the Court would also need to require the government to prove that residential segregation has not been caused by government action, which would require reshifting the burden of proof. Beginning with Green, the Court placed the burden of proof on the school boards to explain the racial 61 Gayle v Browder, 352 U.S. 903 (1956). 62 Brown I, 347 U.S. at Swann, 402 U.S. at Id. at Keyes, 413 U.S. at 201 2; see also Orfield, supra note 4, at Orfield, supra note 4, at Id. at Clearinghouse REVIEW Journal of Poverty Law and Policy January February

9 disparities in the school system and prove that they were not caused by state action. 68 However, in Justice Rehnquist s opinion in Jenkins, the burden of proof appears to have shifted away from the school board to the plaintiffs. 69 Rehnquist s opinion requires the plaintiffs to show affirmatively that continuing discrimination in the schools is traceable to prior school board actions in order for the district judge to consider the alleged discrimination. 70 The Rehnquist opinion has incorrectly altered almost thirty years 71 of desegregation jurisprudence and betrayed the goals of Brown I and its progeny. Along with the burden reshift by the Court, the reconsideration of its theories about what causes residential segregation would also follow. Besides switching the burden of proof away from the school board as mentioned above, courts have raised extensive barriers to considering the housing and residential segregation issues. 72 Lower courts have used the comment in Swann that a case can carry only a limited amount of baggage 73 to dismiss serious housing issues. 74 The courts have explained away segregation by assuming that past discrimination has been cured by time and that present segregation is caused by natural preferences. 75 If a civil rights plaintiff presents enough evidence to prove that the continuing effects of past state violations cause residential discrimination, which usually requires an extensive history of the region, courts usually reject the exhaustive evidence on the baggage theory. 76 Gary Orfield noted that if the courts require evidence of history of discrimination in housing to integrate metropolitan schools in residentially segregated communities and then dismiss extremely powerful evidence as too complicated for the courts to think about, plaintiffs confront a maze with no exit. 77 Instead of accepting the evidence presented by the civil rights plaintiffs, courts have either excused residential segregation, ignored it, or consigned it to the realm of private choice not subject to a court remedy. Whether from a desire to return or keep schools under local control or from an actual belief in the choice theory, the Court has firmly embraced the notion that present residential and school segregation are de facto and therefore beyond the reach of the court system s remedial power. By shifting the burden back to the state and also abandoning the notion that residential segregation is a product of choice, district courts will be able to judge fully the present state of segregation in a community. When the burden is shifted, civil rights plaintiffs will be able to seek redress for school segregation that is a product of government-created residential segregation. By expanding the definition of state action to include action by municipalities or states and not just school boards, students and parents will have a legal avenue to remedy school segregation. School boards and government leaders will not be able to hide behind Milliken and claim that there is not an interdistrict violation, especially when the suburban, white school districts were created by restrictive covenants, discriminatory exclusionary zoning, or state-created inner-city ghettos. 68 Boger, supra note 28, at Id. 70 Id. 71 Calculating from Green in 1968, when the Court began to require school boards to prove segregation was not caused by state action, to Jenkins in Orfield, supra note 4, at Swann, 402 U.S. at Orfield, supra note 4, at Id. 76 Id. 77 Id. 658 Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

10 C. Counterarguments and Constitutional Speed Bumps An opponent to this linking of residential segregation and school segregation might argue that the remedy to the constitutional violation will be imposed on the school board, an innocent party. Although the trio of Supreme Court cases from the 1990s suggested that school boards were merely bystanders to the increasing resegregation of public schools, 78 Judge Motz notes in her Belk dissent, school boards are hardly innocent considering the political nature of their decisions. 79 In the Charlotte- Mecklenburg System (CMS), twentyseven schools have been built since Judge McMillan s post-swann directive to build schools that can readily serve both races. 80 Despite the court order and CMS s adoption of a policy to build schools located midway between black and white population centers, or midpoint schools, twenty-five of the twenty-seven schools were built in predominately white suburban neighborhoods. 81 The evidence presented at the district court trial suggested that the midpoint policy influenced the site selection for, at most, only four of the twenty-seven new schools. 82 Judge Motz concluded that [t]he Board s school siting policies could well evidence its lack of political will in the face of pressure to abandon desegregative policies. 83 The Fourth Circuit however, affirmed Judge Potter s finding that CMS had not discriminated on the basis of race in selection of school sites. 84 Assuming, however, that school boards have not contributed to residential or school segregation, the school board could still be ordered by a court to remedy school segregation caused by a different state agency. In his concurrence in Keyes, Justice Douglas argued that the Court was looking at state action too narrowly. 85 He believed that if a neighborhood was created along racial lines by the use of restrictive covenants, there is state action in the constitutional sense because the force of law is placed behind those covenants. 86 Another example of state action occurred when government funds were dispersed by urban development agencies to build racial ghettos. 87 Justice Douglas reasoned that the school board should be held responsible for school segregation caused by other governmental institutions. 88 Douglas believed that state responsibility could not be so fragmented as to leave the victims of government-imposed segregation with no remedy. 89 This view of the state is historically an element of Fourteenth Amendment jurisprudence. 90 Adopting this view of government responsibility, imposing desegregation remedies on a school board to correct school segregation caused by other government actions is not too attenuated. 78 See infra Part II. C. 79 See Belk, 269 F.3d 305, 387 (Motz, J., dissenting). 80 Id. at 386 (citing Swann v Charlotte-Mecklenburg Board of Education, 379 F. Supp 1102, 1107 (W.D.N.C. 1974) (Motz, J., dissenting)). 81 Id. (Motz, J., dissenting). 82 Id. 83 Id. at 387 (Motz, J., dissenting). 84 Id. at Keyes, 413 U.S. at (Douglas, J., concurring). 86 Id. at Id. 88 See id. at Days, supra note 37, at Id. at 1746 n.32. Clearinghouse REVIEW Journal of Poverty Law and Policy January February

11 Even if the Supreme Court were to shift the burden back to states to prove that state action has not caused residential segregation thereby creating school segregation, school boards might be able to dodge remedial orders by relying on Washington v. Davis. 91 In Washington v. Davis the Supreme Court held that racially neutral laws with a disparate impact on minorities are not unconstitutional unless the state acted because of not in spite of the disparate impact. 92 Occasionally the Court has found a violation just by looking at the way the law was administered, as in Yick Wo v. Hopkins, where the application of a neutral law concerning what type of building a laundry could be located in was so invidious that the Court held it to be discriminatory despite its purported neutral purpose. 93 An invidious purpose may be inferred from the totality of the facts or from the lack of a nonracial explanation for the law. 94 However, usually the Court looks to whether the law serves ends that, despite their discriminatory impact, are within the power of the government to pursue. 95 This test has become relatively easy for municipalities to overcome when neutral laws are challenged as discriminatory, especially exclusionary zoning laws. 96 Despite the ability of many municipalities to hide discriminatory intent behind legitimate government purposes, residential segregation can still be shown to be caused by unconstitutional state action. The task will be more difficult but not impossible. Not all municipalities will be able to hide the discriminatory purpose behind a zoning law, especially if the exclusionary laws are older. Other causes of residential segregation, such as restrictive covenants and racially discriminatory housing programs, will not fall under the Washington v. Davis test at all. Unfortunately not all residential segregation will be found to have been caused by unconstitutional state action, but in many communities the municipal history and evidence will support such a finding. D. The State of Residential Segregation Civil rights plaintiffs seeking to remedy school segregation by claiming de jure residential segregation have extensive evidence and examples to use. Cities in the United States are segregated by race and class with the inner city housing poor minorities and the suburbs harboring affluent whites. 97 In 1980, 71 percent of northern whites lived in suburbs while only 23 percent of blacks had moved out of the inner city. 98 The Supreme Court explains this spatial isolation of African Americans as a natural and private choice beyond the reach of the courts, but the Court has not relied on empirical data to prove its hypothesis that segregation is caused by natural preferences. 99 Plaintiffs in housing and education cases have presented the courts with evidence of public and private discrimination causing the spatial phenomenon, but the standard of proof by which they review these findings is very demanding, unlike the proof required for the Court s private-choice theory. 100 In the early 1900s the government and the courts sanctioned discrimination in the housing markets against African Americans. 101 Efforts by the NAACP had these laws declared unconstitutional, 102 but state and 91 Washington v. Davis, 426 U.S. 229 (1976). 92 Id. at Yick Wo v. Hopkins, 118 U.S. 356, (1886) (Chinese laundry case). 94 Washington, 426 U.S. at See id. at See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977). 97 MASSEY & DENTON,, supra note 10, at Id. at 67 (in the South, 65 percent of whites and 34 percent of blacks lived in the suburbs). 99 Orfield, supra note 4, at Id. at Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

12 local government law still enables and assists whites in walling themselves off in the suburbs and keeping minorities in the inner-city ghettos The Early Efforts to Separate Separate but equal was the constitutional doctrine of the early twentieth century, and white America used this doctrine to begin legally relegating blacks to certain, welldefined neighborhoods, usually in the inner city. 104 Using violence, restrictive local ordinances, and neighborhood covenants, whites were able to choose the neighborhoods they wanted to live in and to keep blacks far from them. 105 Buchanan v. Warley 106 declared local ordinances, which allowed African Americans to inhabit only certain neighborhoods, unconstitutional in 1917, but neighborhoods were able to continue the use of restrictive covenants until Shelley v. Kraemer 107 in 1948, when they were declared unconstitutional. 108 By the Court s decision in Brown I, cities were already segregated as a result of restrictive covenants and other discriminatory practices. 109 Leland Ware argues that the Supreme Court s reliance on the choice theory is incorrect because when residential patterns were set, only white families had the power to choose where to live, and time and the Fair Housing Act have not eliminated the vestiges of discriminatory local ordinances and covenants. 110 However, even if the Court s misplaced notion about the ability of time to eliminate discrimination was correct, present state and local government law is still allowing wealthy white families to exclude poor and middle-class black families from their neighborhoods State Governments Role in Promoting Segregation The state governments role in residential segregation is one of enabler. Permissive state laws and passive state courts have allowed local communities to wall themselves off from undesirable entrants. 112 The state has granted localities the right to incorporate as separate municipalit[ies], immunity from annexation by the central city; the privilege of engaging in exclusionary zoning; the ability to legislate and provide services solely in their own self-interest; the authority not only to tax the real property located within city boundaries but to spend the revenue collected solely on local residents. 113 These laws have contributed to the creation of homogeneous communities, which has only increased the separation by income and race within cities and their suburbs. 114 While states have granted suburbs the autonomy necessary to exclude themselves from the 101 Ware, supra note 45, at 3 5; see also MASSEY & DENTON, supra note 39, at Ware, supra note 45, at Richard Briffault, Our Localism: Part I The Structure of Local Government Law, 90 COLUMBIA LAW REVIEW 1, 5 6, (1990); see also Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism, 88 GEORGETOWN LAW JOURNAL 1985, (2000). 104 See Ware, supra note 45, at 3 5; see also MASSEY & DENTON, supra note 39, at MASSEY & DENTON, supra note 10, at Buchanan v. Warley, 245 U.S. 60 (1917). 107 Shelley v. Kraemer, 334 U.S. 1 (1948). 108 Ware, supra note 45, at Id. at Id. at Cashin, supra note 103, at See Briffault, supra note 103, at 19; see also Jerry Frug, The Geography of Community, 48 STANFORD LAW REVIEW 1047, (1996). 113 Frug, supra note 112, at Id.; see also Cashin, supra note 103, at Clearinghouse REVIEW Journal of Poverty Law and Policy January February

13 city, most states have not allowed central cities the power to adopt legislation, such as an ordinance against discrimination, that would help increase diversity within the city or at least slow the decline of the central city. 115 States are aware of how localities are using these powers, and by passing the laws and witnessing their administration the states have played an important role in causing residential and school segregation. Whether the school district is countywide or by municipality, the creation of homogeneous communities makes integrated schools impossible when neighborhood attendance zones are in place. Under the proposed constitutional test above, to remove or prevent judicial oversight of a school district, a state would have to prove to the court that its actions did not contribute to residential segregation thereby contributing to school segregation. 3. Local Government Action and Residential Segregation Local governments have contributed the most to the current state of residential segregation. 116 Through the administration of federal money for highways and housing, local governments have succeeded in segregating minorities to the inner-city ghettos. 117 Exclusionary zoning has enabled local governments to zone out poor, minority residents by either limiting affordable housing or requiring large lots and floor plans to prevent affordable housing from being built. 118 Finally, incorporation and annexation have allowed local governments to shore up their tax base 119 and avoid a political combination with minority areas. 120 The combination of these government actions have relegated minorities to inner cities while allowing whites to move to the suburbs, thereby creating segregated schools, even in a countywide system. Local governments were able to segregate minority neighborhoods geographically with federal highway money. 121 When deciding where to place highways, local governments were swayed by the politically powerful suburbs that did not want highways going through their neighborhoods. 122 The cities were also able to separate physically many of the inner-city neighborhoods from the first ring of suburbs by building highways in between. 123 In Miami, I-95 was built right through the middle of an inner-city neighborhood that had been scheduled for urban renewal. 124 The placement of highways has been a politically motivated decision for local governments and one that has been used further to isolate minorities in the inner cities. Local government housing authorities have also used federal money to segregate poor minorities. 125 The most documented example of this practice was in Chicago Frug, supra note 112, at Id. at Id. at ; Raymond A. Mohl, Race and Space in the Modern City: Interstate-95 and the Black Community in Miami, in URBAN POLICY IN TWENTIETH-CENTURY AMERICA (Arnold R. Hirsch & Raymond A. Mohl eds., 1993); see also Hills v. Gautreaux, 425 U.S. 284 (1976) (finding that the Chicago Housing Authority and the U.S. Department of Housing and Urban Development (HUD) had engaged in racial discrimination in public housing by deliberately keeping blacks in housing projects and out of white neighborhoods). 118 Briffault, supra note 103, at 21 22; see also PAUL KANTOR, THE DEPENDENT CITY REVISITED: THE POLITICAL ECONOMY OF URBAN DEVELOPMENT AND SOCIAL POLICY (1995). 119 Cashin, supra note 103, at Richard Briffault, Our Localism: Part II Localism and Legal Theory, 90 COLUMBIA LAW REVIEW 346, 365 (1990). 121 Mohl, supra note 117, at Id. at Id. at Id. at Hills v. Gautreaux, 425 U.S. 284, (1976); see also Days, supra note 37, at Hills, 425 U.S. at Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

14 In Hills v. Gautreaux the Chicago Housing Authority and the U.S. Department of Housing and Urban Development were found to have violated federal statutes and the Fourteenth Amendment by deliberately placing black families in public housing in Chicago to avoid placing the families in white neighborhoods. 127 The practice of discriminatory placement succeeded in creating poor, black, isolated communities in the inner city. Even without other government action, discrimination by the housing authority creates vast residential and school segregation necessitating a remedy from the court. Exclusionary zoning is another tool used by local governments to separate poor minorities from middle- and upper-class whites. Suburban localities have worked to keep public or publicly subsidized housing from their communities. 128 By having minimum-lot requirements or floor-plan requirements, suburbs are also able to exclude affordable, multifamily housing. 129 Part of the motivation behind these zoning requirements is to keep the tax base high and keep down the cost of public services. 130 However, another motivation is to keep the percentage of minority families to an acceptable level. 131 The latter purpose behind exclusionary zoning has contributed to the residential segregation of minorities. Annexation and incorporation are used by localities in conjunction with exclusionary zoning. A homogenous community can protect itself from the inclusion of undesirable residents by incorporating as its own locality. Under the proposed theory, these actions by local governments that cause residential segregation will provide the necessary state action for a court to order remedial measures to be taken by the school board. III. Welcome to the Real World The U.S. Court of Appeals for the Seventh Circuit followed a very similar theory to the one discussed above in United States v. Board of School Commissioners. 132 A. The Doctrine in Action The Seventh Circuit held that certain state acts had a discriminatory purpose and a segregative effect on the inner city and surrounding suburbs of Indianapolis. 133 The two state acts that the court reviewed were legislation that limited the boundaries of Indianapolis public schools to the old city limits of the city and decisions by the housing authority to locate all public housing within the old city limits. 134 The actions by the state were found to satisfy the tests established by Milliken, Washington v. Davis, and Village of Arlington Heights. 135 Under Milliken analysis, the border legislation and the administration of the housing authority were determined to have been undertaken with a discriminatory purpose and to have been substantial causes of interdistrict segregation. 136 The actions were also found to have been undertaken with a discriminatory intent, thereby satisfying the requirements of Washington v. Davis and Village of Arlington Heights. 137 Because the actions were by state agencies and had an interdis- 127 Id. at 289; see also Young v. Pierce, 628 F. Supp. 1037, 1052 (E.D. Tex. 1985) (holding that HUD s funding, regulation, and assistance of local public housing authorities were clearly unconstitutional support of segregation). 128 Briffault, supra note 103, at KANTOR, supra note 118, at Cashin, supra note 103, at See MASSEY & DENTON, supra note 10, at 79, United States v. Board of School Commissioners, 637 F.2d 1101 (7th Cir. 1980). 133 Id. at Id. at Id. at Id. at Id. Clearinghouse REVIEW Journal of Poverty Law and Policy January February

15 trict effect, the district court s interdistrict remedial order for the area school boards was found to be proper and within its discretion. 138 The court recognized the effect these nonschool board actions would have on schools and ordered the most appropriate and timely remedy for the violation. B. What Could Have Been The Supreme Court has been advocating the conclusion of judicial control over school districts and for handing control back to the school boards. One would imagine that most school boards would embrace this idea, but in Belk the school board actually argued to remain under judicial scrutiny. 139 In Belk the white plaintiffs challenged the magnet school program established as part of the desegregation plan adopted by CMS. 140 Attendance at the magnet schools was determined by lottery, with a black lottery and a nonblack lottery in order to achieve racial balance within the school. 141 First, the Fourth Circuit found that CMS was a unitary system that had remedied all past vestiges of segregation and therefore was no longer under court order to desegregate. 142 The Fourth Circuit then held that the magnet school program s assignment policy was an equal protection violation because it was not narrowly tailored to serve an important government purpose. 143 After the Belk decision, CMS is limited in how it can approach school integration because it no longer has the protective cover of the court order. Now the board s decisions are under even greater political scrutiny due to the simple facts that the board is no longer required to try to integrate the schools and that the Fourth Circuit has declared that the system is not in need of integration. Under the proposed constitutional doctrine discussed above, CMS would not have been found to be unitary, and the board would be allowed greater latitude in its remedial plans. During the Swann proceedings, the Supreme Court wrote that the district court had been presented with extensive evidence illustrating segregated residential patterns in the city and county that resulted from federal, state, and local government action other than those by the school board. 144 This evidence included public laws that affected the choice of dwelling sites by black and by white purchasers or rentals and zoning laws that follow the pattern of low-cost housing and industry in one quadrant of the city and high-cost housing and office space on another quadrant. 145 Charlotte-Mecklenburg County s residential history is evidence of Ware s opinion that residential patterns were established before the decision in Brown I. Thirty-six out of one hundred twenty-six schools in the CMS system are racially identifiable, and the racial imbalance has been increasing over the years. 146 Because of the residential segregation in Charlotte, the schools are segregated because assignments are based on neighborhood zones. Under the proposed doctrine, CMS and the Swann litigants would have been able to present evidence that the residential segregation in Charlotte had been caused by government action. The government would then have to prove that either its 138 Board of School Commissioners, 637 F.2d at Belk, 269 F.3d at Id. at Id. at Id. at Id. at Swann, 402 U.S. at Swann v. Charlotte-Mecklenburg Board of Education, 300 F. Supp. 1358, 1365 (W.D.N.C. 1969). 146 Belk, 269 F.3d at Clearinghouse REVIEW Journal of Poverty Law and Policy January February 2005

16 actions did not cause residential segregation or the residential segregation has not caused school segregation. If the government is unable to prove that it has not caused school segregation, the court would still examine the intent behind the laws that led to the segregated neighborhoods and segregated schools to determine if those laws are facially neutral. Because of the long history of residential segregation in Charlotte, it is unlikely that the government actions were racially neutral. Therefore, the court would not find CMS unitary and the board would remain under judicial order. The Supreme Court s current school resegregation jurisprudence is demanding creative solutions to maintain the fight for integrated schools. By expanding the de jure framework of school desegregation to encompass all state actions that could lead to school segregation, children, parents and educators would have a new remedy available. This solution would not reduce residential segregation, but it would quickly allow poor, minority children to attend better schools. The focus on the connection between residential segregation and school segregation would also bring school desegregation doctrine closer to the vision of Brown and its progeny. Clearinghouse REVIEW Journal of Poverty Law and Policy January February