A Second Redemption

Introduction The court-ordered desegregation of America's public schools is nearly over. In the last ten years, an increasing number of federal district courts have relinquished jurisdiction over formerly segregated school districts and returned control to local officials.1 Consequently, scores of school districts have abandoned desegregation plans and returned to neighborhood attendance policies, resulting in a substantial degree of resegregation.2 This retreat has been fueled, at least in part, by three recent Supreme Court decisions - Board of Education v. Dowell,3 Freeman v. Pitts,4 and Missouri v. Jenkins.5 Although not altering any fundamental legal principles, the decisions evinced a clear hostility to the continuation of court-ordered desegregation remedies. In each opinion, the Court emphasized that the judicial supervision of formerly segregated school districts was intended to be temporary, and that federal district courts should return control over public schools to politically accountable local officials as soon as practicable.6 The Court also stressed that the permissible objectives of a desegregation plan are quite limited; desegregation remedies are legally justifiable only to the extent that they address conditions that are proximately traceable to the original constitutional violation, even if other racial inequalities or imbalances remain.7 To many, the Court's recent decisions are premature and ill-conceived.8 Perhaps the most prominent critic has been Gary Orfield, director of the Harvard Project on School Desegregation.9 In his recent book, Dismantling Desegregation,10 Orfield, Susan Eaton, and several of their colleagues at the Harvard Project contend that the Court's decisions over the past twenty-five years have betrayed the promise of Brown v. Board of Education.11 This betrayal began with the Court's 1974 decision in Milliken v. Bradley (Milliken 1,12 in which the Court struck down a metropolitan-wide desegregation remedy in Detroit, and has continued through Dowell, Freeman, and Jenkins. Specifically, in ending or curtailing desegregation remedies, the Court has made no effort to ensure that the essential command of Brown - that the victims of past discrimination receive equal educational opportunities - has been fulfilled.13 This abandonment of school desegregation, contends Orfield,14 is reminiscent of the period following Radical Reconstruction, when the federal government, in conjunction with several important Supreme Court decisions, abandoned the cause of civil rights to facilitate regional reconciliation and southern "home rule."15 Today, federal courts, fatigued by the perceived ineffectiveness and futility of their efforts, are withdrawing from the cause of racial equality in public education for the purposes of respecting the sovereignty and political accountability of state and local authorities, despite those authorities' proven history of discrimination. Orfield contends that, despite forty years of court-ordered desegregation, public education remains largely separate and unequal. American public schools are as segregated today as they were in 1972, when desegregation was just beginning in earnest. Moreover, minority students (specifically African American and Latino children) continue to lag well behind whites in every measure of academic achievement. Orfield therefore concludes that, contrary to the Court's recent decisions, federal courts should require the continuation or expansion of desegregation remedies in formerly segregated school districts. Dismantling Desegregation is probably the definitive expression of the traditional liberal defense of school desegregation, and it makes some salient points. First, a well developed body of research supports Orfield's basic premise that desegregation, at least under certain circumstances, has produced tangible educational benefits for minority children with no detriment to whites. Controlling for the relevant measurable variables, school desegregation appears to increase educational achievement for minority students and enhance their "life chances" as measured by a variety of social indicators. …