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Residential Segregation and School Resegregation in America There is significant support for the notion that a diverse student population is a vital element of a successful school1. This sentiment has been echoed by the United States Supreme Court on several occasions, but most notably in a 2003 case called Grutter v. Bollinger. In Grutter, while upholding the University of Michigan Law School’s race-conscious admissions policy, the Court stated that a diverse student body is a benefit to all students2. The majority opinion explained that diversity creates a more enlightened and interesting classroom discussion, and fosters better preparation for professional careers3. In particular, the Court found that “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints.”4 Therefore, the question remains why the integration of public schools in America has been such a slow and inherently unsuccessful operation. It is evident that there have been a multitude of factors that have contributed to the problem, but a historical analysis of school desegregation in America shows that the principal factor has evolved from overt racial prejudice to covert racist housing practices, which have resulted in a racially segregated populace. This paper will try to demonstrate the complexity of the issue through an analysis of pivotal court cases, followed by a study of the government’s failure to black students in the city of Chicago. Throughout it’s history, public education in America has been primarily a state and local matter. The system was established so state and local governments would have 1 Michael J. Kaufman & Sherelyn R. Kaufman, Education Law, Policy, and Practice: Cases and Materials 3-4 (2d ed. 2009). 2 Grutter v. Bollinger, 539 U.S. 306, 321 (2003). 3 Id. at 321 4 Id. practically unlimited control over the education of their children as long as they did not violate constitutional prohibitions5. However, inequalities and segregation have existed between white and minority students long before any sort of standardized public education was established in the country. Racial Prejudice and Segregation in Colonial Times Since the beginning of slavery, local laws in most Southern colonies either limited or prohibited the teaching of both free and enslaved blacks6. Although most Southern whites did not believe that blacks had the mental capacity to learn, they were aware that education would lead to unrest among the enslaved people7. As a result, in response to numerous slave revolts in the early 1800’s, several Southern states passed stringent laws further restricting the education of blacks8. For example, in 1831 North Carolina enacted the Act to Prevent All Persons from Teaching Slaves to Read or Write9. The law stated that any white person convicted of teaching blacks would be imprisoned, and that any enslaved black person convicted of the crime would receive thirty-nine lashes on their bareback10. These types of laws were not exclusive to slaves, as some states passed laws that even denied free blacks the opportunity to learn how to read and write11. However, in colonial New England, where the codes governing slavery did not prohibit the teaching of blacks, some slave owners provided a limited education to their 5 Michael J. Kaufman & Sherelyn R. Kaufman, Education Law, Policy, and Practice: Cases and Materials 8 (2d ed. 2009). 6 National Historic Landmark Survey, Racial Desegregation in Public Education in the U.S. United States Department of the Interior National Park Service, 2 (August, 2000), http://www.cr.nps.gov/history/school.pdf 7 Id. 8 Id. 9 Id. 10 Id. 11 Id. slaves12. For the most part, this practice was done for religious purposes, because many of the educators believed that the enslaved people could be saved through salvation13. This idea led Samuel Sewall, a Massachusetts Bay Colony Judge, to recommend that masters give religious instruction to their servants, which resulted in the establishment of several church-related black schools14. Although education opportunities in the North increased following the Revolutionary War, most of the black schools remained religious institutions, because free Northern states either refused to allow blacks to attend public schools or segregated them15. Even when states established black-only public schools, they tended to be underfunded and overcrowded16. In 1849 a free black Bostonian by the name of Benjamin Roberts filed the first case challenging segregation in public schools17. In Roberts v. City of Boston, Roberts challenged segregation within the Boston public school system, because his daughter had to walk past five all-white schools on her way to class18. He argued that segregation violated the Massachusetts Constitution’s principle that all men are born free and equal19. The Massachusetts Supreme Judicial Court sided with the Boston public school system, holding that the guarantee of equality was met if black and white students had access to an equal education20. This decision had a profound effect on desegregation within 12 Id. Id. 14 Id. 15 Id. at 5-6. 16 Id. at 6. 17 Id. at 7. 18 Id. 19 Id. 20 Id. 13 American public schools, because it created the doctrine of “separate but equal,” which was used to uphold segregation for over a hundred years following Roberts. Shifting Sentiments in Post-Civil War America In 1865, in the aftermath of the Civil War, Congress created the Bureau of Refugees, Freedmen, and Abandoned Lands, which was established to help the emancipated slaves adjust to a life of freedom21. One of the Bureau’s many goals was to provide the newly freed slaves with the foundation of an education22. In order to accomplish this goal, the Bureau coordinated the many religious educational programs already in existence, and began to build black schools23. Although the Bureau was the federal government’s first proactive push towards the education of African Americans, the perceived inherent inferiority of blacks led to vastly inadequate schools24. The curriculum was focused on reducing illiteracy and teaching basic manual skills instead of an extensive liberal education25. Around the same time, Congress passed the Civil Rights Act of 1866, which guaranteed civil rights for all United States citizens and adopted the Fourteenth Amendment, which promised all citizens the equal protection of the laws. However, it remained apparent that racial discrimination still flourished within the country. School integration remained almost nonexistent outside of a few northern states, and Southern whites largely ignored these new policies26. In addition, the great migration of African Americans into the northern states following the Civil War created new problems for northern blacks. 21 Id. at 11. Id 23 Id. 24 Id. at 12. 25 Id. 26 Id. at 15. 22 As a result of the large migration of blacks northward, most northern states passed legislation that prohibited school segregation27. However, many of these communities, including areas in Illinois, maintained separate schools in direct violation of the laws28. In the first real showing of racially motivated housing practices, it became custom for school officials to gerrymander district lines in order to create a dual school system29. In addition, some schools separated black and white students into separate classrooms or put them in separate buildings on the same plot of land30. In response, several suits were brought against this de facto segregation and courts often sided with the black petitioners, however enforcement of these verdicts proved to be nearly impossible31. The rapid flood of southern blacks into the northern states shifted the majority opinion on integration, and deceitful residential manipulation decreased the number of integrated schools in the north32. This shifting sentiment coincided with the Supreme Court showing support for segregation in its landmark decision in Plessy v. Ferguson. In Plessy v. Ferugson, the Supreme Court upheld the constitutionality of state segregation laws33. The majority opinion held that it was a reasonable exercise of state legislative authority to provide “separate but equal” facilities for white and black citizens34. In effect, the Court upheld the reasoning used in Roberts v. City of Boston, even though that decision was made prior to the enactment of the Civil Rights Act of 1866 and to the adoption of the Fourteenth Amendment guaranteeing all citizens equal 27 Id. at 52. Id. Id. at 54. 30 Id. 31 Id. 32 Id. at 52. 33 Plessy v. Ferguson, 163 U.S. 537, 543 (1896). 34 Id. 28 29 rights35. Furthermore, it was apparent that public schools in the United States were far from equal. Statistics show that in 1890, less than one percent of black students attended high school, and only one of every three of those students went to a public school36. The obvious inequality that existed between black and white public schools, combined with the increased centralization of African American power during the mid-20th century, led to several court cases that eventually invalidated the reasoning used in Plessy. A Move Toward Desegregation During the 1930’s and 1940’s the NAACP took an aggressive stance against racial discrimination, especially within the area of public education37. Their first success came in 1935, when a black student challenged his denial from the University of Maryland Law School38. In Murray v. Pearson, Murray argued that the University of Maryland was in violation of the Fourteenth Amendment for denying him admission based solely on race, because there was not a separate law school for black students within the state39. The Baltimore City Court agreed and ordered that Murray be admitted to the Law School40. Although the Supreme Court of the United States did not decide the case, thus limiting its application to similar cases, it created a framework that could be used to achieve social change through litigation41. 35 National Historic Landmark Survey, Racial Desegregation in Public Education in the U.S. United States Department of the Interior National Park Service, 31 (August, 2000), http://www.cr.nps.gov/history/school.pdf 36 Id. at 32. 37 Id. at 55. 38 Id. at 59. 39 Id. 40 Id. 41 Id. at 60. In the aftermath of Murray, NAACP lawyers challenged segregation policies within the public school systems of Oklahoma and Texas. In 1948, the Supreme Court ruled in Sipuel v. Board of Regents that the University of Oklahoma Law School must admit a student whose application was denied on racial grounds in order to comply with the equal protection clause of the 14th Amendment42. This decision was followed by Sweatt v. Painter, which proved to be a crucial turning point in the NAACP’s plight for segregation. In Sweatt, the Supreme Court determined that a newly established law school for black students did not satisfy the constitutional requirement of equality because of the disparity in facilities and intangible factors43. The logic applied in these decisions eventually led to the pivotal holding in Brown v. Board of Education, which completely changed the landscape of public education in the United States. In the aftermath of World War II, the overall outlook of minorities in America changed due to their role in the war effort44. Many African Americans believed that their involvement in the war would lead to better opportunities, and this hope came to fruition in 1954 in the Supreme Court’s landmark decision Brown v. Board of Education (Brown I). In Brown I, the Court found that school segregation was inherently unequal, thus killing the doctrine of “separate but equal” established in Plessy45. The following year, the Court issued Brown II, which stated that racially segregated schools should integrate “with all deliberate speed,” and that the federal district courts would handle the 42 Sipuel v. Board of Regents, 332 U.S. 631 (1948). Sweatt v. Painter et al., 339 U.S. 629, 631-32 (1950). 44 National Historic Landmark Survey, Racial Desegregation in Public Education in the U.S. United States Department of the Interior National Park Service, 68 (August, 2000), http://www.cr.nps.gov/history/school.pdf 45 Id. at 77. 43 enforcement of desegregation46. However, the decree was ambiguous, and many school systems found ways to circumvent the mandate in order to maintain segregation. Many districts implemented “freedom of choice” plans that allowed students to choose which school to attend and resulted in de facto segregation. As a result, in 1968 in Green v. County Board of Regents of New Kent County the Court found against these “freedom of choice” plans, and demanded that dual systems be replaced “root and branch” with unitary ones47. In addition, the Court set out categories in which a school system had to be free from racial discrimination in order to be relieved of judicial supervision. Consequently, immediate success was accomplished. Statistics show that only 32% of black students in the south attended integrated schools in 1968-69, however by 1970-71 the number jumped to 79%48. In spite of this transformation, the success was short lived. Modern Resegregation In 1991 in Dowell, the Supreme Court stated that a desegregation order should be removed once a school system had arranged itself into a unitary system, even if that would lead to resegregation49. Furthermore, in 1992 the Court held in Freeman v. Pitts that district courts have the authority to use their discretion in ordering partial withdrawal of judicial supervision when there has been compliance with a desegregation decree50. More importantly, the Court stated that once a school district showed a “good-faith” commitment to the court’s decree, it was no longer in the district court’s authority to interfere with any resegregation that occurred as a result of independent demographic 46 Id. Id. at 89. 48 Id. 49 Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991). 50 Freeman v. Pitts, 503 U.S. 467, 482 (1992) 47 shifts51. Therefore the Court ultimately legalized de facto segregation within the public school systems, and as a result, over the past twenty years a swift resegregation trend has occurred across the country. According to a 2004 study conducted by the Civil Rights Project at Harvard University, since Dowell public schools have become more segregated in all regions of the United States 52. This is extremely detrimental to African American students due to the inequality that still exists in largely black schools. During the 2001 – 2002 school year, 88% of public schools with less than 10% white students had concentrated poverty, which studies have linked to a lack of resource and lower achievement levels53. As expected, this trend has been witnessed in the once de jure segregated south, but has also occurred in the north. In fact, the most segregated school systems are located in big cities in the Northeast and Midwest54. This is often a result of demographic shifts caused by housing segregation, which makes it no surprise that the Chicago Public School (CPS) system is one of the most segregated school systems, because Chicago has always been one of the most segregated metropolitan areas in the United States55. 51 Id. at 469 – 471 Gary Orfield & Chunmei Lee, Brown at 50: King’s Dream or Plessy’s Nightmare? The Civil Rights Project at Harvard University, 2 (January, 2004), http://www.eric.ed.gov/PDFS/ED489168.pdf 53 Id. at 21. 54 Amanda Paulson, Resegregation of U.S. Schools Deepening: Districts in Big Cities of the Midwest and Northeast Undergo the Most Change, The Christian Science Monitor, (January 25, 2008), http://www.csmonitor.com/USA/Society/2008/0125/p01s01-ussc.html 55 Gary Orfield & Chunmei Lee, Brown at 50: King’s Dream or Plessy’s Nightmare? The Civil Rights Project at Harvard University, 6 (January, 2004), http://www.eric.ed.gov/PDFS/ED489168.pdf 52 The Chicago Problem Although the CPS has been desegregated since 1875, in the years following World War II, school officials in Chicago redrew boundary lines to assure that school districts remained as segregated as the housing market56. As the black population increased in the city, schools in black neighborhoods became overcrowded, but demands for better desegregation were ignored and portable classrooms were added instead57. This practice led to protests and threats by the U.S. Department of Health, Education, and Welfare to withhold federal funds until a desegregation plan was implemented58. In 1966, the city attempted to develop an integration plan that would send black students to white schools, but hostile demonstrations in predominantly white neighborhoods killed the initiative59. As a result of local failure, the state and federal government intervened and implemented a court-mandated desegregation plan in 1980, but the plan was too late to create any sort of real segregation within Chicago’s public schools60. By the time the plan was implemented, “white flight” had created a drastic loss in white students from the school system61. Between 1970 and 1990 the white population of Chicago’s public schools fell by 75%, and by 1990 nearly 2/3 of white school-aged children attended private school62. Although magnet schools have achieved some integration within the city, heavy segregation remains the norm in Chicago’s public schools. 56 John L. Rury, School Desegregation, Encyclopedia of Chicago, http://www.encyclopedia.chicagohistory.org/pages/1121.html (last visited April 19, 2012). 57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 62 Id. African American students represent 42% of Chicago Public School enrollment63, but the city ranks fourth in the nation in school segregation64. In addition, 30% of the public schools in Chicago are 100% African American, and 47% are 90% or more African American. Furthermore, inequality remains in resources allocation, because most school funding in Illinois is derived from local taxes65. In fact, Illinois ranks 49th nationally in the amount of funding provided by the state66. This, along with other socioeconomic factors, leads to high levels of failure among black students. Nearly 60% of the African American high school freshmen in the CPS do not graduate with a degree in four years67. Black students are also less likely than white students to take Advanced Placement (AP) exams in high school with 70% of AP exams being administered to Caucasian students, as compared to only 4% by African Americans68. The disparity in education can also be seen in standardized testing results. The average scores on the Prairie State Achievement Exam for African American’s are 31.8 for reading and 19.2 for math, in comparison Caucasian student’s average 66.1 and 62.8 respectively69. Likewise, Caucasian students average higher scores on the ACT and SAT70. Much of this racial segregation resulted from covert governmental tactics to keep homogeneous neighborhoods. In response to the great migration of African Americans to 63 Jesse Jackson, School Suspension Policy in Chicago Brutal, Unfair, Chicago SunTimes, (April 2, 2012), http://www.suntimes.com/news/jackson/11671379-452/schoolsuspension-policy-in-chicago-brutal-unfair.html 64 Loyola University Chicago’s Center for Urban Research and Learning, Segregation in Chicago 2006: Executive Summary, Loyola University Chicago, http://www.luc.edu/curl/cfm40/data/minisynthesis.pdf (last visited April 19, 2012). 65 Id. 66 Id. 67 Id. 68 Id. 69 Id. 70 Id. the industrial north, both the federal and local governments used public housing and urban renewal programs in order to accomplish racial segregation. On the federal level, the Federal Housing Administration (FHA) used discriminatory practices to deny mortgage loans to African Americans71. For example, between 1930 and 1950 three out of every five homes were purchased with an FHA loan, but less than 2% of these loans were made to minority homebuyers72. In addition, the federal Neighborhood Composition Rule required that tenants of public housing be of the same race as the area in which it was located73. In Chicago, this resulted in most of the housing projects being built in predominately African American neighborhoods. As a result, the FHA lending practices and the homogenous urban renewal projects succeeded in creating segregated neighborhoods and thus deny blacks a real “free choice” as to where they want to live. After reviewing the history of public school segregation in the United States and Chicago, it is evident that many factors have contributed to the failure of integrating school systems. Although school segregation was once caused by racial prejudice, it is apparent that the principal factor is now racial residential segregation. In modern America, the real issue lies in the government’s ploys to segregate communities, and the Supreme Court’s allowance of de facto segregation created by these practices. Although, the Court was correct in Freeman that it is not within the government’s authority to control independent demographic shifts, the Court was flawed in applying this concept to 71 Marc Seitles, The Perpetuation of Residential Racial Segregation in America: Historical Discrimination, Modern Forms of Exclusion, and Inclusionary Remedies, Florida State University College of Law Journal or Land Use & Environmental Law, (Fall 1996), http://www.law.fsu.edu/journals/landuse/vol141/seit.htm. 72 Id. 73 Harvey M. Choldin, Chicago Housing Authority, Encyclopedia of Chicago, http://encyclopedia.chicagohistory.org/pages/253.html, (last visited April 19, 2012). school desegregation. This is because de facto resegregation has not been created by “independent” demographic shifts, but has resulted from unconstitutional governmental practices that have pervaded the very fabric of the American system. As a result, unless policies are implemented to assimilate our society as a whole, it is evident that public schools in America will never truly integrate.