Anurima Bhargava is assistant counsel for the NAACP Legal Defense & Educational Fund. Brian is a student at Yale Law School.
On December 4, the Supreme Court will hear two cases from Louisville and Seattle that consider whether to limit public school districts’ ability to fulfill the promise of school integration enunciated in Brown v. Board of Education over a half-century ago. The court would do well to consider the words of a former U.S. president: “Racial isolation ... has an adverse effect on education. Conversely ... desegregation is vital to quality education—not only from the standpoint of raising the achievement levels of the disadvantaged, but also from the standpoint of helping all children achieve the broad-based human understanding that increasingly is essential in today’s world.”
Was it President Clinton? No. President Carter? Not even close. This was President Richard Nixon, speaking in 1972, urging passage of the Emergency School Aid Act, which established racial integration as an issue of paramount national importance, and provided local school districts with incentives and support to maintain integrated schools. In the decades since, presidential administrations and Congresses of all political stripes have repeatedly and unambiguously reaffirmed these objectives, and given school districts assistance to combat segregation, no matter what its cause. (Briefs filed with the Supreme Court in the Seattle and Louisville cases by current members of the Senate and the House of Representatives detail such congressional acts since the early 1970s.)
Federal agencies have been similarly committed to ensuring racially integrated schools for all students. By 1953, even prior to the court’s decision in Brown, the Department of Defense had fully integrated its military schools “to ensure a cohesive fighting force and to secure for military dependents the significant educational and other benefits of integrated schools.” (Read more on the integration of military schools here.) And, as a brief from a bipartisan group of secretaries of education who served in five different administrations over the past three decades explains, the Department of Education has “deliberately supported voluntary school efforts to eliminate racial isolation and to develop integrated, racially diverse schools” and “consistently concluded that children of all races, and society as a whole, benefit from the voluntary desegregation and diversification of segregated school districts.”
In designing these policies over the past three decades, the executive and legislative branches have relied on a long line of Supreme Court decisions that have consistently encouraged school districts to voluntarily adopt policies that promote racial integration. (Read more on the long line of Supreme Court desegregation cases in a brief filed by the NAACP Legal Defense Fund.) While the court has only forced school districts to desegregate upon a showing of prior intentional discrimination, it has, since Brown, clearly recognized that the harms of racial segregation occur “regardless of cause,” and deferred to the judgment of local school districts about remedying such harms. In a North Carolina desegregation case, the court explained that “[s]chool authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.”
The current administration seems to believe that this unbroken, multi-decade commitment of the executive, legislative and judicial branches of the U.S. government to racial integration in public schools is a mere aberration. In briefs filed by the U.S. Solicitor General on the Seattle and Louisville cases, the administration argues that racial integration of public schools has never been an important enough goal to justify school districts’ use of race-conscious measures in their communities.
This suggestion flies in the face of not only history, but this administration’s own practices. The centerpiece of this administration’s education policy, the No Child Left Behind (“NCLB”) Act, affirms that “it is in the best interest of the United States ... to continue the Federal Government’s support of ... local educational agencies that are voluntarily seeking to foster meaningful interaction among students of different racial and ethnic backgrounds; and . . . to continue to desegregate and diversify schools.”
No Child Left Behind acknowledged that to pursue racial integration and close the racial achievement gap, it is not only appropriate but at times necessary to take account of race. NCLB itself includes a number of race-conscious provisions aimed at tracking minority student achievement, and provides financial incentives for school districts that take account of their students’ race in efforts to achieve more diversity. Indeed, as President George W. Bush remarked in commemorating the 50th anniversary of Brown, NCLB is necessary because, “while our schools are no longer segregated by law, they are still not equal in opportunity and excellence.”
In 1972, President Nixon gave voice to a conservative movement aimed at empowering local school districts to combat segregation on their own, through voluntary integration measures as an alternative to court-ordered desegregation and “busing.” As school districts across the country now seek to employ such voluntary measures to realize Brown’s promise of equal, integrated public education for all their students, they should be congratulated, not sued. These school districts have done nothing more than follow the path towards racial integration that has been outlined and explicitly supported by each branch of government for over three decades. When considering the fate of these school districts this term, the Supreme Court should not lose sight of this history and the decades-long good faith efforts of many school districts to promote meaningful integration in their schools.
