Professor Wendy Parker quoted in The Atlantic about school district integration
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The Atlantic via ProPublica
May 2, 2014
Professor Wendy Parker, former Justice Department lawyer, is quoted in the article “School Districts Still Face Fights—and Confusion—on Integration” published by ProPublica and The Atlantic on Friday, May 2, 2014. Parker speaks in regard to the topic of the article, 60 years after Brown v. Board, the federal government’s enforcement of desegregation has all but disappeared. The full text of the article is below.
For decades, federal desegregation orders were a potent force against Jim Crow laws in the South, helping to make the region’s educational systems the most integrated in the country.
Federal judges, often facing death threats and violence, issued hundreds of court orders that set out specific plans and timetables to ensure the elimination of racial segregation. Federal agencies then aggressively used the authority of the courts to monitor hostile school systems, wielding the power of the 1964 Civil Rights Act to deny federal dollars to districts that refused to desegregate.
The pace of the change wrought by the federal courts was breathtaking. In 1963, about 1 percent of black children in the South attended school with white children. By the early 1970s, the South had been remade—fully 90 percent of black children attended desegregated schools. Court orders proved most successful in the South, but were also used in an attempt to combat de facto segregation in schools across the country, from New York to Michigan to Arizona.
Today, this once-powerful force is in considerable disarray.
A ProPublica examination shows that officials in scores of school districts do not know the status of their desegregation orders, have never read them, or erroneously believe that orders have been ended. In many cases, orders have gone unmonitored, sometimes for decades, by the federal agencies charged with enforcing them.
At the height of the country’s integration efforts, there were some 750 school districts across the country known to be under desegregation orders.
Today, court orders remain active in more than 300 districts. In some cases, that’s because judges have determined that schools have not met their mandate to eliminate segregation.
Desegregation orders were meant to guarantee black and Latino children the right to an equal education. They addressed a range of issues, including the diversity of teaching staff, racial balance in schools, curriculum, discipline and facilities.
The orders uniquely empower parents to fight actions by school districts that might lead to greater segregation or inequality. In districts under court order — having been found in violation of the constitutional rights of black children — parents do not have to prove intent, only that black students could be harmed.
Since the 1990s, the Supreme Court has sharply curtailed the power of parents to challenge racial inequities in schools. Districts not under court orders are largely prohibited from considering race to balance schools. And parents in these districts must show that school officials are intentionally discriminating when they make decisions that adversely affect black and Latino students.
And so, as desegregation orders are ignored, forgotten, or lifted, black parents are losing the ability to effectively challenge school inequality.
Over the course of months, ProPublica has compiled the nation’s most comprehensive and accurate data on active desegregation orders. We used legal databases and academic studies and contacted more than 160 school districts across the country. This effort uncovered confusion, neglect and inaction.
For example, the lawyer for the school district in Hollandale, Mississippi, said he didn’t know if the desegregation order that had long ago been imposed on the district was still in effect.
“I haven’t looked at anything or researched it. I’ve never read the order,” the lawyer, Bennie Richard, said.
The order is, in fact, in place, but it has been 30 years since the school district submitted the required reports detailing its efforts at furthering integration.
In Washington, Georgia, court records show the school system remains under a federal mandate to desegregate. This was news to the district’s lawyer, who, in an interview, told ProPublica the order had been lifted in 2000.
The U.S. Justice Department provided ProPublica with its list of active desegregation orders, but even this data was a bit off: At least two orders on it had ended and a few more are in dispute.
The department would not allow its officials to be interviewed for this article. And it refused to respond to a dozen written questions concerning how it monitors, enforces, and litigates desegregation cases.
A department spokeswoman sent a one-paragraph response that said the department will “continue to use all tools available to ensure equal educational opportunities for all students.”
The U.S. Department of Education, whose Office of Civil Rights also is charged with monitoring desegregation efforts, would not allow its officials to be interviewed.
The agency initially refused to provide a list of desegregation plans that it oversees, saying in an email that “students and communities feel sensitivity” about being categorized by race and by the fact that their schools remain “subject to ongoing legal oversight regarding desegregation obligations.”
A few days later, after ProPublica said it would push for the information, the press secretary for Education Secretary Arne Duncan said the agency could provide a list, but required time because officials needed to “do some final checks on our end to be sure everything is correct.” Two weeks later, ProPublica has not yet received the list.
Wendy Parker, a former Justice Department lawyer who now teaches at Wake Forest University School of Law, said she found the general confusion about the orders “stunning.”
The superintendent of the Yancey County Schools in North Carolina, for instance, asserted that a court order had never been imposed on its schools. But court records at the federal archives in Atlanta show not only was Yancey County placed under a desegregation order in 1960, but the order remains in force.
In response to additional questioning, the district’s lawyer, Donny Laws, said the district was placed under court order but that, “I can safely tell you that’s the first time it’s been mentioned in Yancey County in 45 to 50 years.”
Some school officials interviewed by ProPublica said they had been frustrated in their attempts to simply determine the status of any ongoing federal oversight. A school board lawyer for Warren County, North Carolina, said he contacted the federal courthouse in Raleigh to see whether that district’s court order had ended, but said court officials told him the records had been shipped to the federal archives, and thus they couldn’t give him an answer.
The lawyer asked ProPublica to send him the court records if we found them. We did find the archived case docket for Warren County and it appears the order remains active.
But confirming the status of desegregation orders is not easily done.
The bulk of orders predate the Internet, so many can’t be found online.
Across the country, original court orders and their underlying records have been destroyed by fire, shipped to a central archive center, or lost in the dusty parchment graveyards of courthouse basements. Some orders have lain dormant for so long that everyone involved, including judges and lawyers, are either retired or dead.
The federal government was not a party to all of these cases, many of which originated with civil rights organizations. In some instances, these agencies, too, have not closely monitored districts’ progress.
The desegregation order for St. Martin Parish in Louisiana sat idle for more than 30 years. In 2010, a federal judge who was cleaning up his roster of old desegregation cases determined the order had ended in 1976.
But the judge soon heard from the Justice Department, which insisted that the order was operative and necessary. The St. Martin Parish school board disagreed.
“The Clerk of Court in Shreveport couldn’t even find all of the records,” said Jack Burson, the board’s attorney. “I’ve been in law practice for 49 years, and I’ve never seen a silent case sort of resurrect.”
For now, the order remains active. The parties are waiting for an appellate-court ruling.
Brian K. Landsberg, a law professor at The University of the Pacific, who worked as a Justice Department civil rights lawyer in the late ’60s, said he was dismayed by the lack of action.
“This is not the way it’s supposed to work,” Landsberg said. “It is the job of both the school district and the civil rights division to monitor these cases. There is an obligation of the law enforcement agencies to enforce these orders.”
Fred Gray was once a driving force behind the effective use of federal desegregation orders.
Sitting in his Tuskegee, Alabama, law office—located along the dilapidated downtown circle that bears his name—Gray, 83, recently explained how as a child he had made a secret vow to become a lawyer and to then “destroy everything segregated” in his state.
At the time, no Alabama law school admitted black students, so Gray headed north to Ohio to earn his degree. Then, in 1955, at age 24, he took his first case, that of a teenager named Claudette Colvin who had challenged Alabama’s segregated buses months before Rosa Parks. Gray went on to represent Parks, as well as Dr. Martin Luther King, Jr., and helped to banish segregation on buses and to ensure voting and other rights for black Americans.
But the fight for fair and integrated schools proved longer and harder, much to the consternation of black parents eager for their children to realize the promise of the landmark Brown v. Board of Education case in which the Supreme Court struck down the doctrine of separate but equal schools. By 1963, for example, Alabama schools remained utterly segregated.
That year, Gray sued the Macon County Board of Education. The case wound up before U.S. District Court Judge Frank Minis Johnson, Jr. His rulings in favor of civil rights had led to death threats, cross burnings on his lawn, and the firebombing of his mother’s home.
Not surprisingly, Johnson ordered Macon County schools to desegregate. Ultimately, Johnson served on a three-judge panel that granted Gray’s subsequent petition to place the entire state of Alabama under federal order to desegregate its schools and universities.
The orders had real muscle, for the federal government had recently been authorized to withhold money from school districts that resisted integration.
“After the Civil Rights Act, if you didn’t comply you would actually lose aid and still be sued by the Department of Justice,” said Gary Orfield, co-director of The Civil Rights Project at UCLA. “And the Department of Justice never lost.”
At the time, no one knew how long the orders would or should last, but it was clear from the outset that their potential to bring about change was entirely contingent on the willingness of officials to enforce them.
By the 1980s, the will to do this was buckling under what some civil-rights experts call integration fatigue. President Ronald Reagan, upon taking office in 1981, immediately cut federal financial support for desegregation efforts. The head of the Justice Department’s civil rights division under Reagan, William Bradford Reynolds, said the department would not “compel children who do not want to choose to have an integrated education to have one.”
Reagan’s Justice Department worked to curtail and end court orders. The trend continued and accelerated dramatically under George W. Bush. The ideological shift had implications even for those school districts that remained under order to sustain or improve their integration efforts. The power of orders withered for lack attention and regular enforcement.
Wendy Parker, the former Justice Department lawyer now at Wake Forest, examined just how much of an afterthought many of the country’s standing desegregation orders had become. Parker studied all the written school desegregation opinions from 1992 to 2002, figuring that such opinions would reflect meaningful activity in the cases.
Though hundreds of desegregation orders remained active, Parker could find published opinions for cases in just 53 school districts.
Federal judges once wielded the considerable power bestowed on them by the nation’s highest court to oversee school desegregation. The high court even empowered them to write desegregation plans themselves if necessary. But Parker concluded that contemporary judges have largely left school districts to police themselves.
This was the case in Buncombe County, N.C. Even though a judge had never dismissed the local school district’s 1965 desegregation order, the lawyer for the Buncombe schools essentially called the order moot this year because of “the passage of time.”
In emails, the lawyer, Chris Campbell, told ProPublica the district had been ordered to eliminate a policy of sending its black students to a black high school operated in another district, which it had long ago done.
“There has been no further court action and no plan to take further action by the school district since the issues were resolved nearly 50 years ago,” he wrote.
But it’s hard to know if the district has been fully compliant, as Campbell does not have a copy of the desegregation order and neither does the federal court or its archives. However, an entry on an archived copy of the case’s court docket makes it appear that the district was at the very least mandated to desegregate its teaching staff as well. Campbell declined to answer questions about how he knew what was required without a copy of the order or to specifically address the teaching staff issue.
In Alabama, where the entire state was once under order to desegregate schools, two federal judges in the late 1990s decided to do something about the dozens of desegregation orders that had become dormant in their part of the state.
The life stories of the two judges—Myron Thompson and William Harold Albritton III, both of whom are still on the bench—could not be more different. Albritton came from three generations of lawyers and had attended all-white schools in Andalusia, Alabama. His father had strongly opposed Judge Johnson’s civil rights rulings. Thompson attended all-black schools in Macon County and knew the students involved in the case that led Johnson to order the entire state desegregated. Thompson’s stepfather was a field secretary for the NAACP.
If the school districts under court order were totally desegregated, Albritton said in an interview in his chambers last fall, it was time to return control to the local school boards.
“And if they weren’t,” he said, “it was time for them to get with it and get that way after 25 years.”
Albritton said he and Thompson split up the cases in their region, called in all the parties to determine what the remaining issues were, and then worked towards a way of solving them. Albritton said the process was hampered by the fact that many districts didn’t realize they were still under court orders.
But Thompson and Albritton did not simply accept claims by the school districts that they’d met their obligations. They assigned a magistrate judge to work closely with the parties to address racial disparities. Before dismissing the orders, they made sure the districts worked—often over the course of years—to address inequities across a range of issues, including the disproportionate placement of black children in special education.
“I wanted to look at the statistics, I wanted to look at discipline, I wanted to look at all these factors,” said Thompson. “I was calling status conferences every three to four months, and I would have them file status reports and we would talk.”
“I was unwilling to just sign off on them,” he said.
Still, Thompson often wonders how much of an impact his hands-on approach had on integration in the long run. He invoked William Faulkner and said that it was better to have tried than to have done nothing.
“Faulkner said ‘between grief and nothing, I’d rather have grief,”’ he said.
Other judges have not been nearly as rigorous in overseeing active desegregation orders. Parker found that when cases come before the courts, judges almost always rule against the interests of minority students seeking greater integration.
In 2000, a judge released the Gadsden, Alabama, school district from its desegregation order, even though court records show the district still operated a 90-percent black high school, hadn’t adopted any specific policies to address segregation, and had refused to consider removing the name of Ku Klux Klan founder Nathan Bedford Forrest from one of its schools. Among other things, the district had been ordered to develop a multicultural curriculum, hire more minority teachers, increase access to advanced courses for black students, and eliminate curriculum disparities between schools.
According to court records, U.S. District Court Judge William Acker said he had considered ordering the district to do more to comply with its court order, but decided against it because it would “only invite another dispute.” He said the district had “done a pretty good job of meeting the standards it agreed to.” He offered that the “level of cooperation, open mindedness and acceptance” in Gadsden “beats by a mile” the situations in Northern Ireland and Kosovo. Acker did not respond to an interview request.
An appellate court overturned Acker, and ultimately the district agreed to an extensive settlement agreement that led to the termination of the district’s order in 2005.
Rulings by lower courts with the most direct supervision of desegregation orders, Parker said, have generally been discouraging.
“The court still requires a commitment to the elimination of vestiges of discrimination that are caused by the defendant and can be practically addressed. Yet the district courts have ignored this responsibility,” Parker wrote in her study. “Today courts are willing to accept lingering segregation that the Supreme Court’s jurisprudence prohibits.”
Gray, whose family firm is still battling for racial equality in schools, is frustrated by the unwillingness of the courts, federal agencies and local school boards to seriously address the segregation he’d vowed to end.
“I thought at some point they’d begin to do something because it is the right thing to do, but that has never happened and that is one of the most disappointing points,” he said. “We have to keep fighting.”
In 2005, a series of battles began in Pitt County, North Carolina, over the racial makeup of local schools, showing what can happen when desegregation orders go dormant for years.
Initially, the school district adopted a zoning plan that reassigned some white students to heavily black schools. Some white parents took their kids out of the district in protest. Later, the board, in a bid to halt any white flight, reversed course and adopted a plan that actually increased segregation at some predominately black schools.
Black parents were outraged and turned to the strongest legal weapon at their disposal: a 1970 desegregation order that was still in effect and that barred what the district was then proposing.
The order’s existence had come as a surprise to many. It had been idle for 35 years, resurfacing only when the district used it to defend its initial plan to reassign white kids.
“Communities get caught sort of unaware about what they have a right to challenge and what is going on,” said Elizabeth Haddix, a staff attorney at the University of North Carolina Center for Civil Rights.
The black parents’ lawsuit to enforce the long-idle order wound up before U.S. District Judge Malcolm Howard.
The district sought to have the order lifted, arguing that it had long ago achieved the mandate to integrate. It offered evidence that it had racially balanced its schools within a few years of being placed under court order and had maintained that balance for a period of years, repeatedly rejiggering attendance zones to ensure integration. Because there had been no recent activity in the case, the district declared that it had met its legal obligations decades ago.
“The board no longer operates any school that could be accurately labeled a ‘one race’ school,” the school system said in a brief filed with the court.” Pitt County Schools did not respond to interview requests.
Black parents, represented by the UNC Center for Civil Rights, claimed the order was still necessary. They insisted that racial inequities continued to exist and that the district hadn’t met the conditions the Supreme Court requires for orders to be dismissed.
Howard sided with the district and lifted the order. An appellate court overturned that decision, and sent the case back to Howard for an additional hearing. Last year, Howard once again declared federal involvement with the district over.
“Times have changed since the 1960s,” Howard wrote in his decision. “The School Board has proven that the vestiges of state-mandated discrimination practiced over forty years ago have been eliminated to the extent practicable.”
The Center for Civil Rights is appealing.
“There is hostility to these claims in some cases, and certainly an incredulity that these things are still out there in 2014,” said Mark Dorosin, managing attorney at the UNC Center for Civil Rights.
After its experience in Pitt County, the Center decided to help educate communities about existing court orders that might be helpful to parents. It requested an up-to-date list of the active orders from both the Justice Department and the Education Department but has yet to receive the file.
“It was surprising that there wasn’t a complete list somewhere,” said Dorosin. “But the conspiracy theorist in me says it’s not surprising because the government has deprioritized integration.”
“It’s a willful neglect,” he concluded. “The promises that were made to these kids have never been fulfilled from 40 years ago.”
View this article on The Atlantic.
View Professor Wendy Parker’s bio.