Cases May Chart Future of School Desegregation

The legal effort to dismantle segregated schools began in this Kansas capital nearly four decades ago. In the next year, it may end here.

The Supreme Court used a lawsuit begun by a group of Topeka’s black parents in 1951 to issue its most sweeping ruling of the 20th Century. Official segregation violates the Constitution, the court declared in 1954 in Brown vs. Board of Education.

The ruling reverberated through the courts and through American society. Because of it, racial exclusion policies in schools and colleges, on buses and railroads, in housing and workplaces and in restaurants and hotels were swept aside.

In follow-up cases, the high court said that not only must blatant segregation end, but that school officials had “an affirmative duty” to eliminate the “vestiges” of the old system.

Now, the Supreme Court and school desegregation are at a crossroads. With official segregation long past, many school officials say, it is time to get the courts out of the business of running schools. In three cases on the court docket this term, school boards are urging the justices to do just that. One of them is the Topeka case (Board of Education vs. Brown, 89-1681).

Today, of course, Topeka has no all-white or all-black schools. Still, more than half of the city’s black students are concentrated in four of its 26 elementary schools. Linda Brown Buckner, the original plaintiff in the Brown lawsuit, has a grandson in a school where more than 70% of the children are black or Latino.

Last year, a federal appeals court said that the Topeka school board had practiced “a form of benign neglect” toward its minority students. It ruled that the school district must do more to desegregate its classrooms. In April, the school board appealed that decision to the Supreme Court.

“We think we’ve satisfied our constitutional obligation,” said K. Gary Sebelius, the school district attorney.

The case comes before an increasingly conservative Supreme Court led by Chief Justice William H. Rehnquist, long a bitter foe of school desegregation. As a parent in Phoenix in 1967, Rehnquist strongly opposed a voluntary integration plan that was being considered by local schools.

“We are no more dedicated to an ‘integrated’ society than we are to a ‘segregated’ society,” he said in a letter to the Arizona Republic.

As a Justice Department official in the Richard M. Nixon Administration, Rehnquist drafted a constitutional amendment to forbid courts from ordering busing for desegregation. And as a Supreme Court justice since 1972, he has dissented every time a desegregation plan has been upheld.

Sitting next to Rehnquist on the bench is Justice Thurgood Marshall, the NAACP Legal Defense Fund lawyer who represented the winning side before the Supreme Court in the original Brown ruling. While Rehnquist thinks that desegregation should be called off, Marshall believes that the courts should push for greater integration and true equality between schools.

But at age 82, Marshall--the last of the court’s old-fashioned liberals--has few allies left.

If Rehnquist can get the votes of his four fellow conservatives--which appears likely--the high court can be expected to issue a decision early next year that could free hundreds of school districts from judicial control.

The Justice Department says that it has a role in nearly 500 still-pending court decrees involving school systems, most of them in the South and in border states. Civil rights attorneys say that they believe another 200 to 300 school districts still operate under federal court decrees.

In the last decade, school desegregation has faded as a national controversy, although busing and “magnet school” plans have continued quietly in many areas. The court decrees stayed in effect in part because the Supreme Court never said whether they could end.

Last year, an appeals court in Denver ruled that the Oklahoma City school board may not end its desegregation plan. In that case, the school board said that it should be allowed to halt court-ordered busing and return to “neighborhood schools.” Civil rights attorneys argued that such a plan would “re-segregate” the schools because blacks are concentrated in one section of the city.

The same appeals court also ruled that the Topeka desegregation order should be kept in effect.

In October, the Supreme Court heard arguments in the appeal of the Oklahoma City case. When the justices rule in that case (Board of Education vs. Dowell, 89-1080), the decision also will govern the Topeka case and a third pending appeal from DeKalb County, Ga. In all three cases the basic issues are the same.

The Bush Administration entered the Oklahoma City case on behalf of the school boards. A brief clash between Justice Marshall and U.S. Solicitor Gen. Kenneth W. Starr highlighted the hearing. Starr, the Administration’s top courtroom attorney, said that school boards should be freed from court control if they have fully complied with a busing order for several years.

Marshall objected. By “dismantling” the busing plan, “poor Afro-American kids” will be back in the same schools where they were before the court order, he said.

“Does it still stay a Negro school?” Marshall asked.

“Not by virtue of state action,” Starr replied.

“But does it still remain a segregated school?” the justice asked again.

“By virtue of residential segregation, it does,” Starr conceded.

“Then it’s still a segregated school and you don’t think segregation is unconstitutional,” Marshall charged.

“With all due respect, Justice Marshall, that is emphatically not our position,” Starr countered.

Starr and the school board attorneys argued that a concentration of black students that results from housing patterns is not the fault of the schools and need not be cured by school officials.

Marshall and the civil rights attorneys countered that “residential segregation” is a “vestige” of the old system and, therefore, must be remedied by school officials.

An examination of the Topeka school system shows both how things have changed and how they have stayed the same.

In 1951, Oliver Brown was a lay minister and a welder for what was then known as the Atchison, Topeka & Santa Fe Railroad. He and his family lived just four blocks from Sumner School, a grand 1930s-era building with carved wood paneling and Art Deco styling. But it was reserved for white children.

Brown’s 10-year-old daughter Linda had to walk five blocks to a main street, then take a bus 20 blocks to the aging Monroe School, which was attended only by black students.

At that time, 17 states, most of them in the South, required that black and white children be educated separately. Four others, including Kansas, permitted segregation by school boards.

The Topeka lawsuit was one of five school cases before the Supreme Court in 1953 when California Gov. Earl Warren was named chief justice. On May 17, 1954, Warren spoke for the court when it unanimously ruled that separate schools for black children are “inherently unequal.”

The decision was based on the 14th Amendment, which was enacted just after the Civil War to stop discrimination against blacks. It specifically prohibited states from denying any person “the equal protection of the laws.”

In the late 19th Century, however, the Supreme Court had nearly wiped this amendment from the books. It repeatedly upheld state laws that excluded blacks from schools, colleges, trains and boats so long as “separate but equal” accommodations were provided.

The Brown decision reversed that doctrine. In response, the Topeka school board closed its four aging all-black schools and reassigned the pupils to neighborhood schools. Oliver Brown’s younger daughter, Cheryl, attended the Sumner School which had excluded Linda. The junior high and high schools already were integrated.

But the court decision did not change housing patterns. Less than one-fourth of Topeka’s 122,000 residents are black, but they are concentrated on the east side of town.

Richard Jones, a local civil rights attorney, revived the Brown case in 1979 because black children still were concentrated in a handful of schools.

“Nothing much had changed,” Jones said. “They have not eliminated the vestiges of segregation.”

Certainly, Topeka today has no “segregated” schools in the old-fashioned sense but neither are they fully integrated.

For example, the northeast section of the city is an area of tiny white-frame homes that includes two subsidized housing projects. It is served by the Belvoir School, a cramped, one-story brick facility. Approximately 72% of its students are black or Latino, including Linda Brown Buckner’s grandson. The school’s test scores are among the city’s lowest.

The Whitson School is a 15-minute drive away on the other side of the city. It is in a neighborhood of solid brick homes and broad lawns. An immaculate, two-story school, Whitson has a top academic reputation. Fewer than 5% of its pupils are black.

What happens next depends on the Supreme Court. If the justices turn down the school board’s appeal, the district will be obliged to come up with a remedy for the racial imbalance between schools such as Belvoir and Whitson.

If, however, Rehnquist’s historic view prevails in the pending Oklahoma City case, the court would issue a brief order granting the Topeka school board’s appeal and ordering that court control of the schools be ended.

Regardless of the outcome, no one in Topeka, black or white, seems enthused about cross-town busing as a remedy.

“We have not discussed mandatory busing,” said school Supt. Gary Livingston. “The debate should be about quality and equality of education, not just the dispersement of students.” He added that the Topeka district “has consciously done more in resources and in support for the high-minority schools.”

Livingston said that the school system has used its federal funds to reduce class sizes in its predominantly black schools.

Linda Brown Buckner, now a Head Start teacher, does not favor busing either. “I have a stigma about it because of what I went through. But I’d like to see them try magnet schools,” she said.

Others who have supported the continuing lawsuit say that it has succeeded in pushing the school district to hire more minority principals and to upgrade the curriculum in black schools. For example, Dale Cushinberry, the new principal at largely white Whitson, began his education in one of the all-black elementary schools before the Brown decision.

“We’re trying to keep the issue of school desegregation alive because we care about education,” said Cheryl Brown Henderson, now an official in the Kansas State Department of Education. “It’s not just a question of who sits next to you at school. We want educational equality.”