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THE DESTRUCTIVENESS OF CONTINUING DESEGREGATION ORDERS:
What Happens When The School You Go To Depends On The Color Of Your Skin By ROGER CLEGG Thursday, Sep. 05, 2002

Millions of children are returning to school after summer vacation, but for many of them, where they will go depends on their skin color and ancestry. If this sounds to you like a serious civil rights issue, you are correct.

Required Discrimination: Ancient Desegregation Orders Have Outlived Their Use

Here's a shocking statistic: Approximately 400 school districts in the United States are still under court order from desegregation cases.

While most school districts are forbidden by the Constitution from taking race or ethnicity into account in assigning children to schools, in these districts they are allowed and sometimes even required to do so.

Consider this example: A family recently moved from California to a town in Texas. The mother is Anglo; the father is Latino. They were told by the school district that they could not send their children to the school nearest their home and attended by their children's neighborhood friends.

Why? Because their children are not labeled "white." And because of a court order issued 34 years ago, in 1968, their children's race determines where they must go to school.

Perhaps when a school is first being desegregated, a case might be made that the judge should make sure that all schools in the system achieve a particular racial balance. And of course, if there are school districts that can still be said to be running systems that are segregated by law, then judges should by all means desegregate them. Indeed, that should have been done a long, long time ago.

But what about instances when the school district has followed the court order for years? In such cases, the Supreme Court has made clear that the judicial role should end--and children should no longer be assigned on the basis of their skin color. But in many school districts the Court's command is not being followed.

Bad Educational Policy: How Race-Based Assignments Stop School Reform

The continued existence of these court orders is not only unfair to individual children and families, it also hamstrings school districts that want to improve education by trying charter schools, school choice, or other reforms. The parents in these districts should have the same freedom to experiment with these initiatives as parents elsewhere, but the court orders make that difficult or impossible.

The court orders also threaten to throw a wrench into the machinery of Congress's recent "No Child Left Behind" education bill, signed into law by President Bush earlier this year. That legislation provides schoolchildren with the right to leave underperforming schools, but a desegregation order to the contrary would thwart that new freedom. So long as that order is in place, parents and their children cannot exercise their statutory rights.

The Need for Action: Judges, School Boards, Or Parents Can Start The Process

Judges in school districts that are still under desegregation orders should, on their own, call in the parties to the case and demand to know why the districts should not be declared "unitary"--that is, desegregated--immediately.

If there is a good reason for continued judicial supervision, then the districts should still at least be put on track to achieve unitary status. If the school district hasn't been following the court's order, then it should be made to--but if it has, then the time to dismiss the case has come.

In districts where judges do not take the initiative, the school board should do so. If it has a clean, nondiscriminatory record, it can enlist the support of the U.S. Justice Department's civil rights division, which is usually a party to the case, to get the unnecessary and restrictive court order lifted.

What if the school board won't act--as unfortunately is frequently the case, for political and bureaucratic reasons? Then parents should act on their own by intervening in the case on their own behalf and on behalf of their children, since no one is representing their interests. Again, the Justice Department can help. After all, the initial idea of the orders was to benefit children; unless children are heard, through their parents, we undermine that goal.

Ultimately, it may be necessary for Congress to act. For years, judges micromanaged prison policy, and the abuse was eventually--and quite successfully--addressed in 1996 by the Prison Litigation Reform Act. A School Litigation Reform Act along the same lines has been proposed by Michael Greve in his recent book Real Federalism. The idea is to limit the scope and duration of desegregation orders when no existing constitutional violation can be shown. This is a good idea that someone in Congress should sponsor.

Everyone Wins When A School District Responds to Parents, Not A Judge

Terminating the desegregation order does not mean that the school district will be able to revert to a segregated system, of course. The Constitution forbids any school district from turning back the clock in that way.

Everyone wins: Children are no longer assigned to schools because of skin color and where their ancestors came from, and parents and educators--not judges and lawyers--will run the schools. Now, when our educational systems so desperately need reform, it is the right time to lift the restraints that prevent it, and in doing so harm children.


Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia. From 1987 to 1991, he was a deputy in the Justice Department's civil rights division.