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Show AFTER BROWN: THE CHALLENGE TO ATTAIN AN EQUAL UNITARY EDUCATION SYSTEM Jessica Shulsen This case marks a retreat by the Supreme Court on educational segregation. The decision greatly limited the possibility of any lasting city/suburban desegregation, at a time when fewer and fewer whites were living in the city, while minorities were becoming concentrated in central cities (Orfield et al. 1996, 3). This case opened the door for increased de facto segregation in public schools. Justice Thurgood Marshall states it best in his dissent: Desegregation is not and was never expected to be an easy task.... But just as inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution' s guarantee of equal justice than it is the product of neutral principles of law (Fisher 1999,! Unfortunately, Justice Marshall was correct. Swann was the last major initiative to foster desegregation in the education system. From this point on, the Court began to narrow its previous decisions, particularly Swann. The most important decisions limiting desegregation came in the 1990s. By the late 1980s, three Reagan appointees and one Bush appointee had created a conservative majority. That majority was solidified in 1991 with the appointment of Clarence Thomas (Goldman 1996a). This majority would decide Board of Education of Oklahoma City v. Dowell in 1991. This case actually began in the early 1970s. The district court in Oklahoma City, holding that the school board had not effectively removed de jure segregation, imposed a desegregation plan. It appeared to be successful, as indicated by the district's achieving unitary status in 1977 (Board of Education of Oklahoma City v. Dowell 1991). However, in 1984 the school board adopted a new plan, which made a number of schools one race, on the grounds of alleviating the burdens of busing young black children. The parents of some children protested, maintaining that the school district never achieved unitary status. Yet, the district court denied the motion to reopen the case, noting that the 1972 desegregation injunction was terminated in 1977 (Board of Education of Oklahoma City v. Dowell 1991). The Tenth Circuit Court of Appeals reversed, holding in 1986 that while the 1977 order finding the district unitary was binding on all parties involved, nothing in that order indicated that the 1972 injunction itself was terminated. The district court was, therefore, required to hear the parents' complaints against the new student assignment plan (Board of Education of Oklahoma City v. Dowell 1991). A year later, the district court held that the old plan was no longer feasible and that the board had complied in good faith since the original 1972 injunction. Furthermore the plan did not intentionally segregate; therefore it was permissible. Once again, the Court of Appeals disagreed with the district court. In 1989, it reversed the lower court's decision by relying on United States v. Swift & Co., which deals with the "proper application of federal law on injunctive remedies." Employing the so called "Swift test," the higher court held that "a desegregation decree remains in effect until a school district can show 'grievous wrong evoked by new and unforeseen conditions[,]' and 'dramatic changes in conditions unforeseen at the time of the decree that...impose extreme and unexpectedly oppressive hardships on the obligator'" (Board of Education of Oklahoma City v. Dowell 1991). A few years later the case came before the U.S. Supreme Court. The Court upheld (5-3) the district court. The Court of Appeals test "for dissolving a desegregation decree is more stringent than is required either by this Court... or by the Equal Protection Clause of the Fourteenth Amendment" (Board of Education of Oklahoma City v. Dowell 1991), and the test would "improperly condemn a school district to judicial tutelage for the indefinite future" (Board of Education of Oklahoma City v. Dowell 1991). The Oklahoma City school board had complied with the equal protection clause, and it was unlikely the board would go back to discriminating against black students (Board of Education of Oklahoma City v. Dowell 1991). In essence, a school board that has complied with desegregation orders for several years could return to de facto segregated neighborhood schools. The Court made it easier for school boards to be considered in compliance with a desegregation order in 1992. Freeman v. Pitts dealt with a desegregation order for the school board of DeKalb County, Georgia. A district court relinquished partial control on the grounds that the school board briefly achieved unitary status and that subsequent racial imbalances were due to demographic changes. It found that the board still needed to work on faculty assignments and resource allocation (Freeman v. Pitts 1992). The Court of Appeals overruled the decision on the grounds that the school board must meet all factors of a unitary system. It went on to say that the board could not disregard its constitutional duties by citing demographic shifts (Freeman v. Pitts 1992). In other words, de facto segregation did not excuse such duties. The Supreme Court, on the other hand, had a different opinion of de facto segregation. It held that a district court could relinquish control even if not all of the factors of a unitary school system had been met. It would be far too rigid if schools had to meet all of the so-called Green factors. Finally, "racial balance is not to be achieved for its own sake but is to be pursued only when there is a causal link between an imbalance and the constitutional violation" (Freeman v. Pitts 1992). The Court was telling the lower courts that segregation is to be remedied only if it is de jure and even the courts' options are limited. UNDERLYING CAUSES OF SCHOOL SEGREGATION: RESIDENTIAL SEGREGATION The Supreme Court's decisions regarding segregation are only part of the complex challenge of achieving racially integrated public schools. The second element that must be examined |