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December 1, 2001
Vol. 59
No. 4

Beyond Brown: The New Wave of Desegregation Litigation

In the aftermath of historic legal action challenging racial segregation at the federal level and school funding at the state level, a series of cases demanding socioeconomic integration is seeking new solutions to the persistent problems of inequity and poverty in schools.

Nearly 50 years after Brown v. Board of Education (1954), the conventional wisdom is that school desegregation is dead. As a matter of federal law, this view is essentially correct: There are no new court orders to desegregate schools, and even school districts wishing to take steps to integrate voluntarily are being challenged in federal courts. But as a matter of state law, the picture could turn out to be quite different. Building on the well-established principle in many states requiring "equity" or "adequacy" of education funding, a number of state-level cases may reshape desegregation law in the 21st century.
Litigation for equity in education has followed three waves: federal cases involving desegregation and equity; state cases involving financing; and a new wave of state-level desegregation cases emphasizing integration by socioeconomic status as well as by race.

The First Wave: Federal Racial Desegregation

The landmark 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ordered an end to legalized racial school segregation in the United States, brought great hope to proponents of equity in education. The decision spoke in sweeping terms not only about the need to eradicate segregation but also of a federal right to equal education: Where states provide education, the Court said, education "must be made available to all on equal terms."
Today, however, the broad promise of Brown has withered. In the 1970s, the Supreme Court limited the reach of Brown to de jure segregation—segregation that is state-sponsored and purposeful. Segregation that stems from numerous private decisions about where people chose to live—a kind of de facto segregation, or segregation caused by individuals and not by the government—was beyond the Court's jurisdiction. As a result, in the 1974 decision in Milliken v. Bradley, the Court held that because suburban jurisdictions were not normally legally responsible for segregation in cities, court-ordered desegregation remedies would be confined to city limits. In the 1980s and early 1990s, courts began declaring jurisdictions to be "unitary"—released from desegregation orders because they had removed the vestiges or remnants of a dual system—even if racial groups remained isolated. In the latter half of the 1990s, the courts began to use strict scrutiny of racial classifications to strike down even voluntary efforts by local communities to address de facto racial segregation. In Eisenberg v. Montgomery County Public Schools, for example, the U.S. Supreme Court let stand a 1999 decision striking down the use of race in a student transfer policy aimed at reducing white flight. The U.S. Constitution, which was once seen as requiring desegregation, is now seen by some courts as prohibiting race-conscious integration in the absence of findings of past discrimination.

The Second Wave: State Financing

The second wave of equity litigation, beginning in the early 1970s, focused on financial resources rather than integration. If school integration was unlikely to be achieved, at least schools educating low-income and minority children should receive equal resources.
Some hoped that the broad language of Brown, which suggested a constitutional right to equal opportunity, could be used to require equality in education spending. But the Court explicitly rejected the notion of such a right to equal education opportunity in San Antonio Independent School District v. Rodriguez (1973). The Court also noted, however, that although the federal Constitution provides no such right, many state constitutions may provide for education opportunity. And so plaintiffs' attorneys turned to state constitutional challenges. In the past three decades, almost all states have seen legal action seeking an overhaul of the funding of education to reduce the reliance on local property taxes because such a system results in tremendous inequality in spending.
Whereas in the early cases, lawyers used language in state constitutions to push for educational "equity," in more recent years they have sought an "adequate" education, which provides an absolute, rather than a relative, vision of what is educationally required. The equity and adequacy arguments have prevailed in about half the nation's states. In California, for example, the equity principle has been invoked to require equality in education spending. In New Jersey, the state supreme court has required even greater funding in low-income districts to satisfy the adequacy principle.

The Third Wave: State Lawsuits Seeking Integration

Although efforts to reform state spending on education have often been successful and have improved opportunities for children living in low-income districts, performance of students in these districts continues to lag. The average low-income 12th grader reads at the same level as the average middle-class 8th grader (National Center for Education Statistics, 1999). Money is only part of the problem.
  • Wise expenditures of money, focusing on the classroom rather than on bureaucracy. In low-income areas, pressure is intense to make education a jobs program, so bureaucracies are more likely to be bloated (Powell, 1997; Ryan, 1999).
  • An orderly environment. Low-income schools report disorder twice as often as middle-class schools (Birman et al., 1987; Puma, Karweit, Ricciuti, Thompson, & Vaden-Kiernan, 1997).
  • A stable student and teacher population. High-poverty schools have more than twice as much student mobility as low-poverty schools, and teacher mobility is four times as high (Puma et al., 1997).
  • Well-qualified teachers trained in the subject they are teaching. Teachers in high-poverty schools are more likely to be unlicensed, to teach out of their field of expertise, to have low teacher test scores, to be inexperienced, and to have less formal education. Even when paid comparable salaries, teachers consider it a promotion to move from poor to middle-class schools, and the best teachers usually transfer out of low-income schools at the first opportunity (Darling-Hammond, 1990, 1998; Education Week & Pew Charitable Trusts, 1998; Kain & Singleton, 1996; Lippman, 1996; Ravitch, 1998).
  • A meaty curriculum and high expectations. Curriculum in high-poverty schools is more watered down, and expectations are so low that a grade of A in a low-income school is the same as a C in middle-class schools, as measured by standardized tests results. Many low-income schools do not even offer advanced placement classes or high-level math (Mosborg, 1996; Puma et al., 1997).
  • Active parental involvement. In low-income schools, parents are four times less likely to be members of the PTA and much less likely to participate in fund raising (Barton & Coley, 1992).
  • Motivated students who value achievement and encourage it among classmates.Peers in low-income schools are less academically engaged, less likely to do homework, more likely to watch TV, more likely to cut class, and less likely to graduate—all of which have been found to influence the behavior of classmates (Barton & Coley, 1992; Entwisle, Alexander, & Olson, 1997; Epstein, 1983; Lippman, 1996; National Center for Education Statistics, 1998; Urban Institute, 1999).
  • High-achieving students who share knowledge informally with classmates all day. In low-income schools, peers come to school with about half the vocabulary of middle-class children, so any given student is less likely to expand his or her vocabulary through informal interaction (Cottle, 1998).
  • Well-connected students who will help provide access to jobs later on. Students attending high-poverty schools are cut off from access to the informal connections that serve middle-class students well in finding jobs after graduation (Wells & Crain, 1994).
Because middle-class schools tend to have many of the ingredients required for success, it is not surprising that research has found that low-income students do better in middle-class schools than in schools with high concentrations of poverty (Kahlenberg, 2001). One national study for the U.S. Department of Education found that low-income students attending middle-class schools perform better, on average, than do middle-class students attending high-poverty schools (Kennedy, Jung, & Orland, 1986). Indeed, several studies—involving schools in St. Louis (Missouri), San Francisco (California), and Norfolk (Virginia)—suggest that students do better in integrated schools than in high-poverty schools that spend extra compensatory resources (Kahlenberg, 2001).
This literature forms the basis for a new wave of legal action to require states to take steps to promote socio-economic integration. The argument is that state policies that assign students in a way that perpetuates socioeconomic segregation are denying the affirmative right to an equal or adequate education. So far, Connecticut, New York, and Minnesota have seen claims of this sort, and more such suits may be in the offing. The leading case is the 1996 Connecticut Supreme Court decision in Sheff v. O'Neill.
Beginning in 1977, the Connecticut Supreme Court held, in the case of Horton v. Meskill, that the state constitution contained a right to equal education opportunity—and that this right required a rough equality of education spending. As in other states, however, money alone proved insufficient to providing equal opportunity. A decade after Horton, students in Hartford city schools received more per-pupil spending than those in the suburbs, but the schools' high concentration of poor students was associated with difficulties typical of such schools nationally: fewer advanced course offerings and teachers who were less experienced and less educated. Experts including Mary Kennedy, William Trent, and Gary Orfield noted that concentrations of school poverty have a negative effect on any given student's achievement, education attainment, occupation attainment, and future income (Plaintiffs' Brief, 1995).
In 1989, the plaintiffs filed suit in Sheff v. O'Neill, charging that de facto racial and economic segregation violated the Connecticut constitution's obligation to provide equality in education opportunity. The case was novel in part because it went after de facto segregation—and in part because it led with the issue of poverty concentrations. The plaintiffs' attorney John Brittain noted, "The most signal fact about Hartford is not that it's 92 percent nonwhite but that it's 63 percent poor" (Traub, 1994, p. 41).
The state of Connecticut pointed to federal precedents to argue that the state could not be held responsible for de facto segregation. But, in its 1996 decision in Sheff v. O'Neill, the Connecticut Supreme Court held that allowing de facto racial concentrations to persist in schools violates the state constitution's obligation to provide "a substantially equal educational opportunity." The court also noted that the antisegregation clause in Connecticut's constitution "informs" the equal opportunity provision. The court expressly left open the question of whether de facto poverty concentrations are unconstitutional.
Although the court deferred the question of poverty concentrations, it set the stage for a ruling on the matter with its landmark holding that de facto segregation (by race) is unconstitutional—a holding that conflicted with the longstanding federal holding that only de jure segregation is unconstitutional. The Connecticut court distinguished the state issue from the federal holding on two grounds. First, whereas Brown spoke only to a prohibition against segregation and the 1973 Rodriguez decision concluded that the federal Constitution contains no fundamental right to equal education opportunity, the Connecticut constitution does contain an affirmative obligation to provide students with "substantially equal opportunity." This provision requires the state to take affirmative steps (promoting integration), as well as to refrain from certain activities (like segregation). Second, although the federal courts are wary about intruding on state education practices, state courts are not so constrained.
Because the legal theory in Sheff v. O'Neill extends to de facto segregation, it fixes two important defects in federal desegregation law: The remedy can reach across district lines to the suburbs, and the remedy is permanent. Whereas the Milliken case limited racial desegregation to the cities (because suburbs were not guilty of de jure segregation), the affirmative right to an equal or adequate education cannot be limited by district lines. Likewise, because integration involves an ongoing affirmative right, there is no built-in "self-destruct" mechanism inherent in racial desegregation plans, no declarations of "unitary" status once the vestiges of discrimination are addressed.
The Connecticut Supreme Court did not spell out a remedy in Sheff; instead, it directed the state legislature to draw a plan to reduce racial isolation. So far, the legislature has enacted a modest plan that includes interdistrict school choice, magnet schools, and financial incentives for integration. Plaintiffs are now back in court seeking a more aggressive remedy.
If the remedy in Sheff had involved student assignment that considers socioeconomic status, not race itself, the state constitutional remedy would not have raised an issue of federal constitutional law. Although the equal protection clause in the U.S. Constitution has been interpreted in such a way that racial classifications—even those that are benign—come under strict scrutiny, classifications by income come under the most relaxed scrutiny. Even the most conservative justices, Antonin Scalia and Clarence Thomas, have suggested that race-neutral, economically defined classifications are constitutional.
In 1998, plaintiffs in Rochester, New York, filed a case (Paynter v. New York) challenging school poverty concentrations as a denial of the established right to a "sound basic education." The suit said that school boundary lines that result in concentrated poverty are unconstitutional and proposed that the state education commissioner "be required to develop a plan to ameliorate the effects of concentrated poverty." Noting that the city of Rochester had a 90 percent free and reduced-price lunch population, compared with 16 percent in the suburbs, plaintiffs cited research showing that concentrated poverty has a negative effect on student achievement above and beyond individual family poverty.
An appeal in the Rochester case is still pending. In a related case, however, Judge Leland DeGrasse of the New York Supreme Court issued his opinion in January 2001 in the case of Campaign for Fiscal Equity v. State. The plaintiffs in the case challenged unequal and inadequate school funding in New York City on the grounds that it violated the education clause of the New York State constitution and Title VI of the 1964 Civil Rights Act. Judge DeGrasse found the current provision of funding to be a violation of both the state constitution and federal statute, but he also raised the larger issue of school integration. The court directed defendants "to examine the effects of racial isolation on many of the City's school children" and noted "significant social science research" indicating that this isolation has a negative effect on student achievement," as well as "some nascent research" indicating that steps to increase racial and socioeconomic integration may be more cost effective in raising student achievement than simply increasing funds allocated to high percentage minority schools. (Campaign for Fiscal Equity v. State, 2001, at 551)
Judge DeGrasse's decision has been appealed. If his order to defendants regarding racial and socioeconomic integration is sustained, it could have enormous significance in shaping the remedies to state violations of educational equity and adequacy. If courts are hesitant to call for an overhaul of district boundaries, they may be more amenable to providing a right to transfer to less economically segregated school settings.
Alongside the Hartford and Rochester cases, the other major challenge to de facto economic and racial concentrations occurred in Minneapolis in 1995. In Minneapolis Branch, NAACP v. State, plaintiffs charged that the state's guarantee of a fundamental right to an adequate education was violated by economic and racial isolation. Plaintiffs noted that 66 percent of Minneapolis students were eligible for free or reduced-price lunch, compared with 26 percent statewide. The plaintiffs cited state data showing that in 1998,low-income students who attend[ed] suburban schools [were] . . . twice as likely to have high achievement levels as low-income students attending school in Minneapolisas well as extensive national data on the topic (Shulman et al., 1999, p. 1). Plaintiffs sought an interdistrict remedy involving the city of Minneapolis and the surrounding suburbs. In March 2000, the case was settled, with the state agreeing to make transportation available for low-income students to attend suburban schools and suburban communities agreeing to set aside at least 500 seats for low-income city students each year. The settlement also provides for a city magnet program to promote socioeconomic integration.
Beyond Connecticut, New York, and Minnesota, a number of other states appear ripe for the Sheff-type argument. As the New York Times has noted, Sheff's argument of "improving the education of poor children by breaking up their concentration in urban districts" is "widely seen as the next step for school-financing cases" because existing spending litigation has "won more money for city schools without improving results" (Judson, 1996, p. B1).
Some critics may object that court decisions seeking to equalize financial resources should not be extended to equalize the types of resources associated with economic integration—such as positive peer influence and active parental involvement—because that would put courts in the position of evaluating education research and acting like unelected school boards.
The language in most of the existing decisions, however, already opened the door to education questions beyond financing when courts began moving from the procedural question of "equity" to the substantive concept of "adequacy." In 1989, in Rose v. Council for a Better Education, for example, the Kentucky Supreme Court held, in very specific and substantive terms, that the constitution required that each child must be provided with a specific seven-part education, from oral and written skills to grounding in the arts. The Rose court also made clear that it was not limiting the constitutional obligation to money: "Lest there be any doubt, the result of our decision is that Kentucky's entire system of common schools is unconstitutional" (Rose v. Council for a Better Education, 1989, at 215). Likewise, in its 1990 decision in Abbott v. Burke, the New Jersey Supreme Court held that the legal requirement was not "a constitutional mandate governing expenditure per pupil, equal or otherwise, but a requirement of a specific substantive level of education" (at 371). The substantive adequacy requirements used by the supreme courts of Kentucky and New Jersey—which go beyond equal spending inputs to require substantive results—have also been established in Alabama, Maryland, Massachusetts, Missouri, New Hampshire, Ohio, West Virginia, and Wyoming.
It is also important to note that a number of court decisions specifically refer to the important role that public schools play in fostering social cohesion and promoting citizenship—an area in which integration clearly plays a more direct role than equal spending. In its 1971 decision in Serrano v. Priest, for example, the California Supreme Court emphasized the importance of the public schools in "unifying" a "diverse society" and "promoting cohesion among heterogeneous democratic peoples" (at 1258). In New Jersey, although the Abbott court's remedies have not yet directly taken on the issue of socioeconomic integration, the decisions have explicitly noted the problem of poverty concentration. In concluding the decision, the court stated:Clearly, we are failing to solve . . . the problem of bringing this important and increasingly isolated class into the life of America. . . . This substantial segment of our population is isolated in a separate culture, in a society they see as rich and poor, for to the urban poor, all other classes are rich. . . . They face, through no fault of their own, a life of poverty and isolation that most of us cannot begin to understand or appreciate. (Abbott v. Burke, 1990, at 411–412)
As the nation grows increasingly diverse, the argument for integrated public schools grows stronger. As the evidence regarding the limitation of spending remedies piles up, the rationale for directly attacking the fountainhead of inequality—the separation of poor and middle-class students in U.S. schools—becomes more compelling. Just as litigators moved a generation ago from federal courts to state courts on the important issue of school financing, so they are finding a more receptive audience at the state level for the even more pressing issue of economic school segregation.

Abbott v. Burke, 119 N.J. 287, 575 A.2d 359 (1990).

Barton, P., & Coley, R. (1992). America's smallest school: The family. Princeton, NJ: Educational Testing Service.

Birman, B., et al. (1987). The current operation of the Chapter 1 program: Final report of the national assessment of Chapter 1. Washington, DC: U.S. Department of Education.

Brown v. Board of Education, 347 U.S. 483 (1954).

Campaign for Fiscal Equity v. State, 716 N.Y.S.2d 475 (2001).

Cottle, M. (1998, July/August). Who's watching the kids? Washington Monthly, 30(7/8), 16–18.

Darling-Hammond, L. (1990). Teaching quality and equity. In J. Goodlad & P. Keating (Eds.), Access to knowledge (pp. 237–358). New York: College Entrance Examination Board.

Darling-Hammond, L. (1998). Unequal opportunity: Race and education. Brookings Review, 16(2), 28–32.

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Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4th Cir. 1999), cert. denied, 120 S. Ct. 1420 (2000).

Entwisle, D., Alexander, K., & Olson, L. (1997). Children, schools, and inequality. New York: Westview Press.

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Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977).

Judson, G. (1996, August 15). Civil rights lawyers hope to use Hartford schools case as a model. New York Times, p. B1.

Kahlenberg, R. (2001). All together now: Creating middle-class schools through public school choice. Washington, DC: Brookings Institution Press.

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Kennedy, M., Jung, R., & Orland, M. (1986). Poverty, achievement, and the distribution of compensatory education services: An interim report from the national assessment of Chapter 1. Washington, DC: U.S. Department of Education.

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Milliken v. Bradley, 418 U.S. 717 (1974).

Minneapolis Branch, NAACP v. State, No. 95-14800 (Hennepin County District Court, filed Sept. 19, 1995).

Mosborg, S. (1996). How money matters to school performance. Portland, OR: Northwest Regional Educational Laboratory.

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Paynter v. New York, 720 N.Y.2d 712 (1998). [Appeal pending.]

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Powell, M. (1997, July 21). School funds have gone for bureaucrats rather than books and boilers. The Washington Post, p. A13.

Puma, M., Karweit, C., Ricciuti, A., Thompson, W., & Vaden-Kiernan, M. (1997). Prospects: Final report. Cambridge, MA: Abt.

Ravitch, D. (1998, February 25). Teachers to the test. Washington Post, p. A17.

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Ryan, J. E. (1999, November). Schools, race, and money. Yale Law Journal, 109(2), 249–316.

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241 (1971).

Sheff v. O'Neill, 238 Conn. 1, 678 A.2d 1267 (1996).

Shulman, J., et al. (1999, March). State admits that integration improves student achievement. Unpublished document prepared by plaintiffs for mediation. Minneapolis Branch, NAACP v. State, No. 95-14800 (Hennepin County District Court, filed Sept. 19, 1995).

Traub, J. (1994). Can separate be equal? Harper's Magazine, 288(1729), 36–47.

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Wells, A. S., & Crain, R. (1994, Winter). Perpetuation theory and the long-term effects of school desegregation. Review of Educational Research, 64(4), 531–555.

Richard D. Kahlenberg has contributed to educational leadership.

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