‘Brown v. Board of Education at 65: A Promise Unfulfilled’

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The landmark civil rights U.S. Supreme Court decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was handed down on May 17, 1954, 65 years ago this week.

The Court’s unanimous opinion holding that “separate educational facilities are inherently unequal” and therefore violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, and ordering states to desegregate “with all deliberate speed” has never been fully realized.

In fact, there has been so much backsliding that a new study finds America has regressed to the point where public schools are still segregated. Education reporter Valerie Strauss of the Washington Post writes, The promise of historic Brown v. Board school desegregation ruling is ‘at grave risk,’ report says:

Sixty-five years ago, the Supreme Court declared that segregated public schools were “inherently unequal” and unconstitutional, smashing a 1896 ruling that permitted “whites-only” and “Negroes-only” schools. The historic Brown vs. Board of Education decision ordered that public schools must be integrated, launching a decades-long struggle to end systemic inequality in American life.

After all these years, a new report says that while Brown vs. Board may have led to desegregation in other parts of American society, it has been unsuccessful in its stated mission: to integrate public schools.

Now, the promise of the ruling is “at grave risk,” according to the report titled “Harming our Common Future: America’s Segregated Schools 65 Years after Brown.”

The report was issued by the Civil Rights Project at UCLA and the Center for Education and Civil Rights at Pennsylvania State University, with input from researchers at Loyola Marymount University and North Carolina State University.

It says that while intense levels of segregation markedly decreased for black students after the 1954 court ruling, they have been rising again since Supreme Court decisions in the 1990s led to the end of hundreds of desegregation orders and plans across the country. It says:

The growth of racial and economic segregation that began then has now continued unchecked for nearly three decades, placing the promise of Brown at grave risk.

These trends matter for students, and for communities whose futures are determined by how the public schools prepare their students for a diverse future. Research shows that segregation has strong, negative relationships with the achievement, college success, long-term employment and income of students of color.

The report measures segregation based on how much exposure groups of students have to each other, regardless of the demographics of the districts in which they live. It says:

    • Public school enrollment stands at nearly 50 million. White students are less than half of the student population: 48.4 percent in 2016. Latinos were 26.3 percent of the student population; blacks, 15.2 percent; Asians, 5.5 percent; multiracial, 3.6 percent; and American Indian, 1 percent.
    • Despite the increase in diversity, segregation has intensified and expanded. Over the last three decades, black students have been increasingly segregated in intensely segregated schools (which are defined as being 90 to 100 percent nonwhite). By 2016, 40 percent of all black students were in schools with 90 percent or more students of color. New York, California, Illinois and Maryland are the four states in which a majority of black students attend intensely segregated schools.
    • New York remains the most segregated state for African American students, with 65 percent of African American students in intensely segregated schools. California is the most segregated for Latinos, with 58 percent of those students attending intensely segregated schools. The typical Latino student attends a school in which only 15 percent of students are white.
    • White students continue to attend schools in which nearly seven out of 10 classmates are also white, a much higher percentage than their overall share of the enrollment.
    • In 2016, Latino students on average attended a school in which 55 percent of the students were Latino. The states in which they were most likely to attend intensely segregated schools were California, New Jersey, New York and Texas.
    • In suburban schools in the country’s largest metropolitan areas, 47 percent of students were white in 2016, a 10 percentage point decline in a decade. About one-seventh of suburban students were black, and more than one-fourth were Latino. Considerable segregation exists within the suburbs, where African American and Latino students typically attended schools that were about three-fourths nonwhite. White students in these same large suburbs attended schools where, on average, two-thirds of the enrolled students were white.
    • In rural schools, the typical white student went to a campus on which 80 percent of students were white, while the typical black or Latino student went to a rural school with 57 percent nonwhite enrollment.
    • Charter schools, which are publicly funded but privately operated, are even more segregated than schools in the traditional public systems. Typically, they have no integration policies. School choice plans without policies to ensure equity often end up with the most-connected and best-educated families getting the best choices, actually increasing inequality.

The report makes recommendations for policymakers, including:

    • Creating a better way to measure economic segregation and its connection to racial segregation in schools.
    • Creating and supporting diverse educational institutions inside polarized communities.
    • Training for school faculties, leaders and staffs to respond to growing racial, economic and linguistic diversity.

Richard Rothstein, a longtime research associate at the Economic Policy Institute who has written extensively on segregation in American society, has said housing policies are actually the most important school policies. On the 60th anniversary of Brown v. Board, he wrote:

Schools remain segregated today because neighborhoods in which they are located are segregated. Raising achievement of low-income black children requires residential integration, from which school integration can follow. Education policy is housing policy.

Federal requirements that communities must pursue residential integration have been unenforced, and federal programs to subsidize movement of low-income families to middle-class communities have been weak and ineffective.

Correcting these policy shortcomings is essential if the promise of Brown is to be fulfilled.

Concern about the lack of progress with school desegregation was sounded in Congress last month by Rep. Robert C. “Bobby” Scott (D-Va.), chairman of the House Committee on Education and Labor, who said: “After four decades without federal support for desegregation, we are right back where we started.”

“As we mark [its] 65th anniversary, the promise of Brown appears a distant vision in our dangerously polarized society,” Gary Orfield, co-director of the UCLA Civil Rights Project and one of the report’s authors, said in a press release. “We have to do more.”

Joe Davidson writes in an op-ed at the Washington Post, Brown v. Board of Education: After 65 years, still seeking to make a promise a reality:

It’s a shame to grow old and not achieve a long-sought goal.

But circumstances sometimes thwart ambitions.

That’s the case for the Supreme Court’s 1954 decision in Brown v. Board of Education. The seminal civil rights ruling outlawing school segregation — at least in theory — turns 65 on May 17.

As can happen when reaching old age, this birthday comes with some disappointment. Equality in education remains more a pledge than reality, in part because of obstructing federal policies.

That was the issue at a House Education and Labor Committee hearing this week. Its title tells the tale: “Brown v. Board of Education at 65: A Promise Unfulfilled.”

Chairman Robert C. “Bobby” Scott (D-Va.) set the stage with this opening statement: “The Court’s historic ruling was not the end of school segregation, it was the beginning of a long and difficult struggle to unwind centuries of systemic inequality that have influenced every aspect of American life. Today’s inequity in education, housing, economic opportunity, criminal justice, and other policy areas are the legacy of our history. … The federal government contributed to racial segregation and inequality, so the federal government must be part of the solution.”

School segregation lives, as do disparities, inequalities and discrimination.

Over time, there has been a large increase in schools that are the most isolated by poverty and race,” according to a Government Accountability Office report released on Brown’s anniversary in 2016. The growth in K-12 public schools with high percentages of poor black or Hispanic students “has been dramatic,” the report added, surging 143 percent from the 2000 school year to 2013.

Linda Darling-Hammond, president and CEO of the Learning Policy Institute in Palo Alto, Calif., said the number of African American students in integrated schools has dropped by half since the late 1980s. She and others at the hearing criticized Trump administration policies, saying they exacerbate educational disparities.

Administration “efforts to roll back civil rights protections,” she said, “extend beyond school integration efforts and are likely to result in further challenges to realizing the promise of Brown.”

Scott listed some of those efforts. He said that under President Trump, the Education Department has:

· “Rescinded an Obama-era guidance that provided recommendations to schools seeking to boost diversity in classrooms and campuses.

· “Tried to delay the implementation of a long-overdue rule designed to address racial disparities in the identification, placement, and discipline of children of color with disabilities. A recent court decision found that attempt to be illegal.

· “Dismissed more than 1,200 civil rights investigations that were started under the Obama Administration.

· “Produced a final School Safety report that cited bogus ‘research’ and blamed federal civil rights enforcement — without evidence — for school shootings.

· “Eliminated a 2014 guidance package that was issued to help schools address the clear evidence that Black boys and students with disabilities receive harsher treatments than their classmates in punishments. The guidance showed how you could reduce those disparities without jeopardizing school safety.”

The department was not represented at the hearing and did not respond to a request for comment. But when Education Secretary Betsy DeVos testified before the committee earlier in April, she refused to say segregated schools hurt students and education.

Even more shocking are the conservative judicial appointments Donald Trump is nominating to the federal bench. Trump’s Nominees Won’t Say if Brown v. Board of Education Was Decided Correctly, and Trump Judicial Nominees Are Refusing to Endorse Brown v. Board of Education:

Neomi Rao is one of at least 10 Trump nominees to the federal courts in the past year who have refused to offer an opinion on Brown. Several of those nominees have been confirmed or approved by the Senate Judiciary Committee and set for a full Senate vote. Among them is Wendy Vitter, wife of former Sen. David Vitter (R-La.), whom Trump nominated to a district court seat in Louisiana. In April, she told the judiciary committee, “I don’t mean to be coy, but I think I get into a difficult, difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with.”

Until Trump took office, refusing to endorse Brown as a judicial nominee would have been unthinkable. Both of former President George W. Bush’s Supreme Court appointees, Chief Justice John Roberts and archconservative Justice Samuel Alito, had no trouble answering the question in the affirmative during their confirmation hearings, nor did Justice Elena Kagan when she was nominated to the court by former President Barack Obama. But times have changed.

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Before Trump took office, you would have to look back to failed Supreme Court nominee Robert Bork to find a judicial candidate who suggested the historic decision was anything but universally accepted. As New York Times columnist Linda Greenhouse wrote after Bork died in 2012, “the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate.”

As Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund writes today, If judicial nominees don’t support ‘Brown v. Board,’ they don’t support the rule of law:

Since April 2018, more than two dozen executive and judicial nominees have declined to endorse the Supreme Court’s unanimous decision in Brown v. Board of Education. This week — one that marks the 65th anniversary of the landmark ruling that struck down legal apartheid in this country — the Senate is poised to confirm three of those judicial nominees to lifetime seats on the federal bench.

That is simply unacceptable.

Few of us — no matter our race, color or creed — would recognize our democracy or legal system without the changes touched off by this momentous civil rights case. For nearly 65 years, the legal consensus around Brown was unequivocal. With its transformational opinion eviscerating segregation and codifying the modern contours of equal justice, Brown remained above partisanship, ideology and everything else.

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But in April 2018, Trump judicial nominee Wendy Vitter bucked more than a half-century of unanimity by failing to offer support for the Brown decision. In response to Sen. Richard Blumenthal’s (D-Conn.) request for her position, Vitter said, “I don’t mean to be coy, but I think I get into a difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.” Judicial nominees such as Andrew Oldham, Neomi Rao and Michael Park followed Vitter’s lead.

This response simply doesn’t pass muster. The reluctance to speak about Brown cannot be explained by the rationale frequently offered by nominees who refuse to answer questions about Citizens United, for instance, namely that the case is one that might come back before the court. But no serious legal analyst thinks the issue of segregation will be relitigated ever again. In 2005, Roberts deemed Brown as unlikely to come back before the court as Marbury v. Madison, the 1803 case that established the principle of Supreme Court judicial review.

More recently, and more perplexingly, President Trump’s nominee for deputy attorney general also refused to answer the question. This is unprecedented territory for a Justice Department nominee during the Trump administration, and it appears to be new ground for a Justice Department nominee in any administration since the watershed decision. Jeffrey Rosen said he could not be expected to go through “thousands of Supreme Court opinions and say which ones are right and which ones are wrong.” But the deputy attorney general oversees the Justice Department’s Civil Rights Division, whose mandate is to enforce the nation’s civil rights laws and precedent, including Brown. We do, in fact, have a right to know his position.

So, what’s the real reason these executive and judicial nominees are suddenly demurring on Brown? The ugly truth is that declining to offer approval of Brown signals a willingness to question the project of democracy that Brown created — one in which African Americans and other marginalized groups compelled the federal courts to honor the spirit of equal justice embodied in the words of the 14th Amendment. And this isn’t just deeply troubling; it’s also downright dangerous.

Once positioned near the center of the canon of Supreme Court jurisprudence, it’s hard not to conclude that a move is afoot to move Brown to the margins. If distancing oneself from Brown becomes an accepted marker of conservative legal bona fides, something monumental will have shifted in American legal thinking and values.

But there has been little public outrage about this clearly orchestrated response by Trump nominees. That is a colossal mistake. Perhaps we have blown past so many norms and guardrails over the past two years that we have become numb to the onslaught. But we must awaken from this paralysis. This year, when so much is at stake, we must reclaim Brown. We must demand that all nominees to the federal bench offer their support of this central feature of the rule of law in the United States.

If we are to pass down to our children a system that will protect their rights for decades to come, we must reject nominees who reduce Brown to merely one among “thousands of Supreme Court opinions” rather than as a seminal case that anchors our very conception of modern American democracy.

Support for Brown should be regarded as a low bar to clear for any judicial or Justice Department nominee. That scores of Trump nominees have been confirmed despite a refusal to even approach this simple question is a shameful reminder of how far we have moved away from principles that once enjoyed broad consensus in this “new normal.” Nominees either support Brown, the rule of law and equality under the law, or they do not. And if they do not, they put our very democracy at risk.