DOCUMENT RESUME

ED 054 261 UD 011 739

AUTHOR Van Loon, Eric E., Ed.TITLE School Desegregation, 1971. Inequality in Education,

Number Nine.INSTITUTION Harvard Univ., Cambridge, Mass. Center for Law and

Education.PUB DATE 3 Aug 71NOTE 35p.

EDRS PRICE EDRS Price MF-$0.65 HC-$3.29DESCRIPTORS Biracial Schools, Classroom Integration, *Court

Litigation, Integration Litigation, *Race Relations,Racial Integration, Racial Segregation, *SchoolIntegration, School Segregation, Southern Schools,*Special Zoning

IDENTIFIERS *Swann vs Charlotte Mecklenburg Board Of Education

ABSTRACTIn this journal are collected articles on school

desegregation in 1971. J. Stanley ?ottinger, Head of HEW's Title v:compliance section, offers the government's position in an essayentitled, "HEW Enforcement of Swann." On the other hand, CynthiaBrown, attorney at the Washington Research Project, takes a moreskeptical view of Nixongs policy towards desegregation. The abuseswithin "integrated schools" in Mississippi are examined by RimsBarber in "Swann Song From the Delta". Other articles are"Segregation, Northern Style" by Paul R. Dimond; "The Sociology ofMultiracial Schools" by Robert L. Green, and others; and, "ChicanoEducation: In Swann's Way?" by Alan Exelrod. (Author/JW)

INEQUALITY IN EDUCATIONNumber Nine; August 3, 1971Published by theHarvard Center for Law and Education38 Kirkland StreetCambridge, Massachusetts 02138

Editor: Eric E. Van Loon

Production and Circulation: Alice B. Shryer

inequality in Education is published six timesannually (the odd numbered months) and isdistributed free to individuals. Librarysubscriptions are $6.00.

The Center for Law and Education is aninterdisciplinary research instituteestablished by Harvard University and theUnited States Office of Economic Opportunityto promote reform in education throughresearch and action on the legal implicationsof educational policies, particularly thosepolicies affecting equality of educationalopportunity.

Director: David L. Kirp

Co-Chairmen: Professor Frank MichelmanHarvard Law School

Professor David CohenHarvard Graduate School of Education

In This Issue:

Introduction (David L. Kirp) 3

Swann Song From the Delta (Rims Barber) 4

HEW Enforcement of Swann (J. Stanley Pottinger) 6

Nixon Administration Desegregation (Cynthia Brown) 11

Segregation, Northern Style (Paul R. Dimond) 17

The Sociology of Multiracial Schools (Robert L. Green,John H. Schweitzer, Donald S. Biskin, and Lawrence W. Lezotte) 25

Chicano Education: In Swann's Way? (Alan Exelrod) 28

Notes and CommentarySpecial Education 33

Student Rights 34

Drugs 34

Title I 35

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Introduction: School Desegregation 1971A casual newspaper reader might think that,

17 years after the landmark Brown decision, theSupreme Court had in Swann finally laid to rest allquestions concerning the obligation to desegregatepublic schools. In upholding a plan which orderedextensive busing in one large Southern metropoli-tan school district while overturning as inadequatea more limited integration proposal, the SupremeCourt seemed determined to do what it has longproposed to eliminate racially separate schools"root and branch." The Court's tart disposition ofthe claimed right to neighborhood schools, and itsapproval of busing and non-contiguous schoolattendance zones as a means of promoting integra-tion give some force to the notion that the battleover race and schools has ended.

For a number of quite different reasons, thatoptimistic conculsion is unfounded. The problemsthat persist, while less dramatic than outrightrefusal to comply with the law of the land, are noless important. This issue of Inequality In Educa-tion draws together those problems in discussionsby lawyers and laymen in the field, people whoknow the problems first-hand.

The post-Brown history suggests that Courtopinions remain noble statements of principle ifthey are not vigorously enforced, by both govern-ment and private litigants. President Nixon'srecent statement on school integration, and thesuit filed in Austin, Texas, indicate that thegovernment intends in some fashion to carry outthe Swann mandate: Yet the government's posi-tion in recent years, most notably its foot-draggingstance in Alexander v. Holmes County (unani-mously reversed by the Supreme Court), givelegitimate cause to wonder how vigorous thegovernme'nt will be in pressing for desegregation.J. Stanley Pottinger, head of HEW's Title VIcompliance section, offers the government's posi-tion; Cynthia Brown, attorney at the WashingtonResearch Project, takes a more skeptical view.

Yet even if school district integration is infact accomplished, a new set of problems moredifficult to address has clearly begun to emerge. AsSouthern school districts become increasingly inte-grated as the number of black children attending

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racially mixed schools grows black students areisolated within schools. So-called "ability group-ing" assigns black students to the lowest tracks;school disciplinary codes are applied with particu-lar harshness to black children; obviously antago-nistic symbols such as the Confederate flag flyover the schoolhouse. Further, black teachers andadministrators who had for many years worked inall-black schools find themselves demoted or firedas school districts integrate. The lame officialexcuse: they're not good enough to teach (white)children. Rims Barber discusses these practices inMississippi. One can only wonder with Barber ifthe story will be very different for the children ofthose just now entering school.

As Paul Dimond's piece indicates, segrega-tion is hardly a phenomenon confined to theSouth; indeed, recent data show that while schoolsin the South have become more integrated duringthe past decade, Northern school districts aremore racially identifiable than ever before. Theflight of whites to the suburbs is one significantcause of this increase in Northern segregation;official practices by school officials in most citiesare arother and legally attackable cause.

School district boundary-drawing; optional zones;teacher assignment; student transfer provisions;school construction; all these techniques have beenemployed by schoolmen to preserve the racialcharacter of urban schools. Further, housing poli-cies including those of the Federal HousingAdministration have locked poor black familiesinto the center city, aggravating racial problems. Itmakes little sense to describe this pattern asadventitious (de facto) and thus beyond judicialpurview. By intent and, more importantly, byeffect, such segregation is de jure, and warrantscorrection. Successful litigation in such cities asDenver, San Francisco, !..ps Angeles, and Pontiacsuggests that judicial relief may be forthcoming;that within the next decade nominal integrationmay be a fact of life in the North as well as theSouth.

Hopefully, courts and schoolmen will learnfrom Southern history that nominal integrationputting black children and White children in the

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same schools is but the beginning of theeducational effort. How integration is carried out

whether black and white children are treated as"citizens," as Tinker puts it, or simply as humanbeings with a sense of themselves and their ownhistory is really the critical racial policy issue ofthe decade. The article by Robert Green and hisassociates at Michigan State University analyzesthese questions by reviewing the social scienceresearch on the effects of interracial education.Alan Exelrod, attorney to the Mexican AmericanLegal Defense and Education Fund, reviews the

particular .reeds of the Chicano community; hiscomments are readily extendable to other minor-ity groups whose native language and experience isnot that of melting pot America.

By and large, the articles are sobering. Theyserve to remind all of us that integration is not atalismanic phrase, but an infinitely complicatedand important social goal. They also suggest thathumane and integrated schools and, necessarily,an integrated society are unlikely to exist nextyear, or even 10 years from now.

David L. Kirp

Swann Song From the Deltaby Rims Barber

A year ago Jerris Leonard, head of theJustice Department's Civil Rights Division, predict-ed that "for all practical purposes the dual schoolsystem as it has existed in the South will beeliminated by September 7th [19701." Again thisyear, the Swann decision holds out hope of finalresolution of this issue. The nagging question inthe minds of Mississippians concerned with schooldesegregation is what next year's sayings about theend being in sight will be.

In the Summer of 1971, we are standing inthe trough of a calm. We have heard the high courtpronounce Swann, and know that 18 or 20 ofMississippi's 150 school districts will have tochange by the opening of school. We know thatthe Justice Department has prepared motions on adozen districts, that HEW has written comprehen-sive reports on another half dozen, and that thecourts are preparing to issue orders on three orfour more. But the school boards go about theirseemingly normal preparatory duties of fixing upthe schools and hiring teachers.

The calm is an anxious one. The whiteestablishment is uneasy, awaiting what it sees asthe coming next blow. Defensive and toughenedby years of rearguard action, the Establishment isstill prepared to fight for its institutions. The blackcommunity is anxious, hoping for the real change

Rims Barber is a member of the staff of theDelta Ministry, an agency of the NationalCouncil of Churches of Christ.

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that never comes, wondering when the wave thatfinally and inalterably changes the schools will hit.Many have lost hope in the long struggle. Forthem, changes in the schools have meant a toughersystem, not better schools for their children.

The New DiscriminationThe past year proved Mr. Leonard right in

one respect: The dual school system as it hadexisted was eliminated. But the legacy is a newdiscriminatory system, hardly a year old, whichincludes the following facts:

"Visible control of the schools is still white;during the past two years, more than half of allblack administrators were fired, demoted, orplaced in tangential positions.

Non-tenured teachers were released for avariety of reasons. The State Department ofEducation reports a 5% decrease in black teachers,while independent surveys show the number to be10 12%. With changes in the law for state

reimbursement of teacher units, the State Depart-ment predicts a 51/2% loss of regular teachers (over1,000 teachers) in the coming year with a dispro-portionate number in majority black districts.

Inside the schools are new policemen, newrules, and a new kind of documentation for minordisciplinary incidents. As a result, hundreds QSblack children have been expelled or suspended, allwith the knowledge that their folder, containingdetails of each time they chewed gum or were lateto a class, is waiting to be used.

HEW Enforcement of Swann

by J. Stanley Pottinger

The Supreme Court's Swann decision, readin light of the specific conditions in Charlotte,North Carolina, is a relatively clear pronounce-ment. Attempting a general assessment of themeaning and applicability of the Swann decisionto former de jure school systems, however, is

another matter. The vast differences which existamong Southern school districts today defy formu-lation of a single definition of the desegregationproblem or an approach to it. Reconciling theneed for uniforMity and clarity of legal standardswith the equally important need for flexibility totake account of vastly different situations is a

constant struggle, and one which in the endprobably can never be fully or neatly resolved. Inorder to understand how the Court's decision is tobe translated into practical results, it is necessaryfirst to have in mind the differing characteristics offormer dual systems, what has happened to themin the last few years, and the kinds of remainingproblems to which Swann may apply.

Although there is tendency to refer to "theSouth" as if it were a single entity of schooldistricts of equal sizes, shapes and rates of prog-ress, it is as divergent and complex in its makeupas any other part of the country. Some districts,like Charlotte-Mecklenburg, are urban centers hav-ing relatively large racially-homogeneous residen-tial patterns too broad to enable school children towalk to integrated schools. Atlanta, Memphis,Miami, Birmingham, Dallas, Richmond and Mobileare other examples. Other school districts are ofmedium geographic size, having a combination ofurban and rural patterns, where some childrenattend schools near their homes and others arebused for miles. Still other school systems arepredominantly rural, where 90 percent or more ofthe children are transported to school and alwayshave been. School populations vary similarly,ranging from cities like Houston, Texas, with

Stanley Pottinger is director of the HEW Officefor Civil Rights, responsible for minority racialcompliance in all HEW-funded programs.

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almost a quarter of a million school children, toschool districts having less than 300 children.

Superimposed on these wide ranges in geo-graphical and population differences is an equallywide range of racial composition. Contrast thesmall, rural district of Claiborne, Mississippi (86percent Negro children) and the Washington D.C.system (95 percent Negro children) with PickensCounty, South Carolina (about 12 percent black)and Nashville, Tennessee (about one-quarter Negroenrollment). The range between all-black and all-white systems is virtually unlimited, making itimpossible to say, for instance, that Swann re-quires a general rule that there be no more major-ity black schools.

Other factors which the Supreme Courtfound relevant in defining a school district'sconstitutional duty also vary from one district tothe next. School sizes and capacities are considera-bly different. The quality of facilities varies, withsome in excellent condition (a number of blackschools were built after the Brown decree with themistaken hope that this would forestall integra-tion), and others, both black and white, in

deplorable shape.Perhaps the most complicating factor of all,

however, stems from the progress that has beenmade in school desegregation over the last coupleof years. Between 1954 and 1968 it was relativelyeasy to identify dual systems since there had beenlittle actual desegregation, and the duality of theschools remained largely intact. (That is not tosay, of course, that there was little federal andprivate civil rights agency activity during this time.The historic effort to achieve freedom of choicefor black children; the failure of that policy onceit had been achieved; and the continuing pressurefor assuring the actual desegregation of schools arewell known).

Desegregation ProgressThat there has been substantial change in the

racial composition of individual schools in theSouth during the last two years is a matter ofrecord, although still too dimly perceived by the

public generally. When school opened in the fall of1968, only 18 percent of the 2.9 million Negrochildren in the 11 Southern states attendedschools which were predominantly white in theirstudent enrollments. In the fall of 1970, thatfigure had more than doubled to 39 percent. Overthe same time period, the percentage of Negrochildren attending 100 percent black schools

dropped dramatically from 68 percent to 14

percent. In 1968, almost no districts composed ofmajority Negro (and other minority) children werethe subject of federal enforcement action. It wasthought up to that time, and perhaps rightly, thatthe limited resources of the government ought tobe focused primarily on the districts which had amajority of white pupils, where the greatesteducational gains might be made, and where actualdesegregation was not as likely to induce whitepupils to flee the system, leaving a virtuallyall-black system behind. Nevertheless, this decisionto reserve enforcement in these districts was amixed blessing, inasmuch as almost 40 percent ofall the Negro children in the South live in systemswhere blacks are in the majority. Obviously, thegreater the amount of desegregation in majorityblack districts, the fewer will be the number ofblack children attending mostly white schools.Ironically, the better the results in such districts,the fewer the number of minority children whowill be counted as "desegregated" under a stan-dard which measures only those minority childrenwho attend majority white schools.

In order to account for this recent anomaly,HEW has begun to extract from its figures thenumber of minority children who live in mostlywhite districts and who attend mostly whiteschools. Last year, approximately 54 percent ofthe Negro children in the South who live in suchdistricts attended majority white schools. Con-versely, nearly 40 percent of the 2.3 million whitechildren who live in mostly black (or minority)districts now attend mostly black (or minority)schools.

These changes do not stand alone, of course,but are a reflection of changes that have takenplace generally in race relations in the South. Invoting rights, in public accommodations, as well asin schools and other areas of life, progress hascome only recently, but it has been substantial.Indeed, the recent census studies showing a sharpdecline in the northward migration of Southernminorities can be attributed in part to a change in

attitudes, behavior, and conditions. James

Meredith's recent departure from New York forMississippi, to live in what he terms a morehospitable environment for Negroes, probablyshould not be considered an aberration.

The purpose of recounting these advances inrace relations and school desegregation in theSouth is not to contradict the need for furthervigorous civil rights enforcement, nor is it to offerup gratuitous commendations. It is merely topoint out that conditions have been altered sub-stantially enough to complicate significantly thetasks of identifying the remaining problems anddevising appropriate remedies,

District-by-District ApproachWhen this general progress is examined on a

district-by-district basis, as it must be for com-pliance purposes, the region's varying degrees ofprogress become obvious. In many districts, thedual system has been fully disestablished, and thecommunities have moved beyond dealing withSwann-type problems to dealing constructivelywith the kinds of educational problems that existwithin any integrated school district, North orSouth. In other school districts, while most of theschools may be integrated, one or more may stillretain racially-identifiable vestiges of the formerdual system. And in a few districts, including theurban districts to which Swann is primarily ad-dressed, although some desegregation has occur-red, additional movement clearly must be made toeliminate substantial remnants of former totalsegregation.

In the first instance, it seems clear that Swanndoes not change the overall objective of the schooldesegregation effort--that is, the elimination of thedual system of schools based on race. In Brown v.Board of Education the Court stated the principleimplicitly in its holding that "in the field of publiceducation the doctrine of 'separate but equal' hasno place." In Green v. County School District, theCourt stated the objective by holding that formerde jure systems have an obligation to operate "notblack schools, and not white schools, but justschools." And in Swann the Court says that, "Theobjective today remains to eliminate from thepublic schools all vestiges of state-imposed segrega-tion." [Slip op. p. 101.

Of course, these generalizations leave manypractical questions unanswered. What is a "blackschool" or a "racially-identifiable school," andhow does one go about identifying one? If a

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school is racially-identifiable, what is the appropri-ate remedy? These and a host of related questionsmust be answered in light of Swann on a case-by-case basis.

Defining Racially-Identifiable SchoolsWith regard to how one identifies a racially-

identifiable school, the Supreme Court in Swannhas provided additional guidance consistent withits previous rulings. Traditionally, the focus of theschool desegregation effort has been on pupilassignment policies. Nevertheless, the Court clearlyindicates that all aspects of a school system mustto be taken into consideration.

In Green, we pointed out that existingpolicy and practice with regard tofaculty, staff, transportation, extra-curricular activities, and facilities wereamong the most important indicia of asegregation system. 391 U. S., at 435.Independent of student assignment,where it is possible to identify a

"white school" or a "Negro school"simply by the racial composition ofteachers and staff, the quality of build-ings and equipment, or the organiza-tion of sports activities, a prima faciecase of [a] violation ... is shown.[Swann, slip op., p. 14] .

Our first administrative step has been tomake a comprehensive analysis of all districts inthe 17 Southern and border states in order toidentify those districts that appear potentiallysubject to Swann relief. Since pupil assignment isthe primary area of concern, we have sought toanalyze districts' pupil enrollment status through areview of the information they have provided us inthe National School Survey.

Having this information in a data bank, wehave compiled a computer print-out revealing thenames and locations of all Southern school dis-tricts having one or more schools composedmostly of local minority students.* More than3600 Southern school districts today do not haveany schools mostly black in pupil composition (or

mostly white in a district composed mostly ofblacks). Of the districts surveyed, about 650 werefound to have one or more schools of this kind (ofwhich only 219 were found to have had one ormore schools between 90 and 100 percent localminority). Of these 650 districts about 350 werefound already to be under court order or in

litigation, leaving about 300 appropriately subjectto further review and potential enforcement actionby HEW.

Our next step has been to look at the rawdata in these 300 HEW districts in order todetermine, as best we can, which ones appearto be required to take additional steps in light ofthe Swann decision. A school system which is 45percent black, and which has only one majorityblack school which is 52 percent black, would beeliminated from the group subject to potentialenforcement. (This assumes that no other com-pliance problems, such as a failure to desegregatefaculty, discriminatory treatment of teachers, etc.,appear in the file.) Of the initial 300 districts,about 75 were eliminated on this basis alone atfirst review, leaving the balance for furtheranalysis.

In making a further analysis, the task hasbeen more complex. Some districts, of course,show a pattern of racial identifiability clearlyindicating the vestiges of the former dual system.In such cases, the need for enforcement action isclear, and steps to this end are currently under-way.

The vast majority of non-court involved,districts, however, have only one or a few schoolsracially identifiable, with most of the schools inthe system already desegregated. In almost all ofthese cases, the student enrollment informationitself cannot tell the story. Hence, it becomes evenmore important to look at other pupil assignmentfactors, and other non student factors, in order todetermine whether the school is still a vestige ofthe dual system and capable of being desegregatedfurther in line with Swann. Is the school whichappears, in the words of Swann, to be "substan-tially disproportionate" in its composition a

former black school? Has it always been a blackschool? If not, why has it become one?

* "Local minority students" means those students who constitute less than half of the student populationof the district, regardless of their race. Hence, in a majority black district, "local minority students" wi'l bewhite-Anglo students. The term "minority student" without the designation "local" refers to a student whois other than white-Anglo--i.e., Negro, Spanish-surnamed, Oriental, or American Indian.

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Eliminating Racially-Identifiable SchoolsThe next series of questions relates to what

can be done to eliminate the racial identifiabilityof the schools. Is the school presently not fullydesegregated because remedies were impossible inthe past, and if so, in light of Swann, are newremedies applicable or still impossible? Is theschool located geographically in a position whereit cannot be paired with other schools in thesystem? Is it a sound facility? What capacityproblems, transportation problems, or otherproblems are there, and are they substantialenough to deter a further remedy? If the pupilcomposition is not clearly racially-identifiable, butonly marginally so, what other considerations areto be identified and brought to bear on a decisionas to whether the school is still part of a dualsystem? Is the school a "second-class" school of akind found when the dual system operated, or is ita full and equally participating member of theschool community at large?

It is the gathering and analysis of informa-tion bearing on these questions which have en-gaged our efforts to a large extent during thesummer months. In order to assist us in this effortwe have sent approximately 65 letters to districtsinforming them that on the basis of the informa-tion on hand, it would appear that the Swanndecision does or may apply. In some cases thedistrict's reply will permit a prompt determinationof the issues, either indicating that the dual systemhas been disestablished, or that further steps areclearly required. In other cases the letter is onlythe beginning of further inquiry. In the caseswhere final analysis establishes a violation, thedistricts are required to submit a remedial desegre-gation plan, or become the target for enforcementproceed ings.

As for the timing of our enforcementefforts, Alexander v. Holmes County and theSwann decision require that where remedial stepsare required, they must be taken immediately. Asa practical matter, this translates to a deadline ofthe opening of school this fall. We are thereforeworking to analyze files, notify districts, negotiatefor voluntary relief and compel compliance withinthis time period. We believe that it can be accom-plished by Fall in most, if not all, of the districtsrequired to take desegregation steps under Swann.

Although the Court leaves the definition ofthe goal of desegregation still in general terms--i.e.

the dismantling of the dual system, the eliminationof racially identifiable vestiges of state imposedsegregation, or the achievement of the "greatestpossible degree of actual desegregation"--the Courtdeals in more specific terms with methods to reachthat goal. While court-order and administratively-enforced desegregation generally did not make useof non-contiguous zoning or the additional trans-portation typically resulting from it, the Court inSwann has now held that these are legitimate tools,and that these devices, as well as rezoning orgerrymandering, contiguous pairings, and theeffective use of existing transportation, must beused if necessary to disestablish the dual system.

Having significantly added to a school dis-trict's tool box for implementing desegregationsteps, the Court has also made clear that thesetools need to be used within the limits of practica-bility. It then leaves to school officials, the execu-tive branch and the lower courts the task ofdetermining what is "practicable" in any particularcase. The Court makes clear, for instance, thatsome all-black or virtually all-black schools, evenwhere they are identified as the vestiges of thedual system, may continue to exist by virtue ofthe practical limits to be placed on non-contiguouszoning and additional transportation.

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In light of the above, it should be cleartnat the existence of some small numberof one-race, or virtually one-race,

schools within a district is not in and ofitself the mark of a system which stillpractices segregation by law. The districtjudge or school authorities ... will ...necessarily be concerned with the elim-ination of one-race schools. No per serule can adequately embrace all the dif-ficulties of reconciling the competinginterests involved; but in a system with ahistory of segregation the need for reme-dial criteria of sufficient specificity toassure a school authority's compliancewith its constitutional duty warrants apresumption against schools that aresubstantially disproportionate in theirracial composition. Where the schoolauthority's proposed plan for conver-sion from a dual to a unitary systemcontemplates the continued existence ofsome schools that are all or predomi-nantly of one race, they have the burden

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of showing that such school assignmentsare genuinely nondiscriminatory.[Swann, slip op. p. 22].

Since no per se rule can be drawn where virtuallyone-race schools are proposed, what constitutesenough to satisfy the school authority's burden ofshowing that such schcols are permissible? Havingindicated on the one hand that remedies may be"administratively awkward," the Court immedi-ately thereafter states that, "No fixed or evensubstaritially fixed guidelines can be established asto how far a Court can go, but it must berecognized that there are limits." [Swann, slip op.p. 24]. Specifically, with regard to transportation,the Court also declines to be more specific than tonote that transportation has been "an integral partof the public education system for years." TheCourt states specifically that, "Thi :ope of per-missible transportation of students as an imple-ment of a remedial decree has never been definedby this Court and by the very nature of theproblem it cannot be defined with precision."[Swann, slip op. p. 25]. The Court is a little morespecific, (although not much) in noting that

an objection to transportation ofstudents may have validity when thetime or distance of travel is so great asto risk either the health of the childrenor significantly impinge on the educa-tional process. District courts mustweigh the soundness of any transporta-tion plan in light of what (has been]said ... above. It hardly needs statingthat the limits on the time of travelwill vary with many factors, butprobably with none more than the ageof the students. The reconciliation ofcompeting values in a desegregationcase is, of course, a difficult task withmany sensitive facets ... [Swann, slipop. pp. 26-27].

Despite the clear thrust of the Swann deci-sion, we are still left with the need to exercisediscretion in defining what limitations on non-contiguous zoning and new busing are appropriate,and what in general constitutes "impracticalities"within the meaning of the Court's qualifyingphrase in the Davis opinion. Of course, thisdiscretion is not without bounds defined by

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experience. Ultimately, giving meaning to thisstandard requires looking at the specific facts inthe district and judging its compliance obligationsby what can actually be achieved, not by inten-tions. Transportation is a traditional and legitimatetool, and should not be regarded as otherwisesimply as a method of avoiding the constitutionalduty to eliminate racially-identifiable schools. Atthe same time, transportation can, as the Courtnoted, be taken to an excess, to the point where thechildren transported, regardless of race, are unableto appreciate or function well in the schools towhich they are assigned. Reconciling these compet-ing interests must of necessity involve a case-by-caseanalysis of what can and must be done.

Local Bi-racial CooperationExperience clearly indicates that this recon-

ciliation is greatly aided when a biracial committeeor other mechanism for bringing the communitiestogether is in operation. When the design of adesegregation plan is influenced by honest bi-racialparticipation, its chances of working in fact, aswell as on paper, are immeasurably improved.Only a few weeks ago in Jackson, Mississippi, withdrama unnoticed outside that city, the blackcommunity (represented largely by the NAACP,

Inc. Fund) and the white community (representedlargely by the school board) were able to develop adesegregation plan of their own making and de-sign. As a result, one can hope with at least somejustification that when school opens this fall theplan will actually fork. Similar kinds of commun-ity involvement appear to have had a legitimateimpact on the plans recently agreed upon inMobile, Alabama; Nashville, Tennessee; and otherlarge districts in the South.

Implementation of the Swann decision mayrepresent the last chapter in the historic effort totransform the dual school structures of the Southinto unitary systems. The need for consistentFederal presence continues, and will be provideduntil the task is complete. With the results thathave already been achieved, and the constitutionalmandate to culminate the process now clearer, thewhite and minority communities of the South canlook forward to the day when the dual system andall its vestiges will be behind us, and the educa-tional needs of children can be served withoutregard to race, color, or national origin.

Nixon Administration Desegregation

by Cynthia Brown

The Supreme Court's landmark school de-segregation decisions in Swann v. Charlotte-Mecklenburg Board of Education and companioncases,' appear to be viewed by the Nixon Adminis-tration as a way out, once and for all, of thepolitical controversy over dismantling the dualschool structure in the South. This is not to say,even with firm enforcement of the Swann stan-dards, that the issue of federal responsibility inproviding equal educational opportunity will havebeen resolved in the South (any more than it hasin the North), but the battleground is shifting.New struggles are emerging such as establishmentof private segregation academies, discrimination infaculty and staff dismissals, in-school segregationof students, and inequities in school finance. Inthe meantime, this article focuses on the NixonAdministration's likely implementation of Swann.

On April 20, 1971, the Supreme Court ruledthat there is a "presumption against schools thatare substantially disproportionate in their racialcomposition"; that the neighborhood school pol-icy is no longer sacrosant; that segregatory schoolsystems must be undone even by arrangementswhich are "administratively awkward, inconve-nient and even bizarre"; and that busing is anacceptable desegregation tool. This ruling shouldhave laid to rest the Nixon Administration's majoraugments, based upon its political priorities, withrespect to school desegregation.

Apparently, few in the Nixon Administration expected the Swann decision. More than twoyears of political oratory had strongly implied thatschool desegregation standards would be weakenedin the South. Bureaucratic in-fighting involvingHEW, the Department of Justice, and the WhiteHouse had resulted in at least a standstill, if not asignificant desegregation retreat.2 The Administra-tion had sustained some stinging setbacks in the

Cynthia Brown is an attorney working at theWashington Research Project.

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courts particularly the Alexander decision order-ing an end to segregation "now" and requiring thedesegregation of most southern districts by the fallof 1970. As a result, the Administration seemed tofeel that the basic issue of segregated studentassignment had been resolved. It was felt that thejob was completed, especially in rural areas andmedium-sized cities, and that problems accom-panying physical desegregation so-called"second generation" problems would be workedout with minimum federal effort and low visi-bility.3 The Administration apparently felt that, atworst, the Supreme Court would rule that theplans in question the Mobile neighborhoodschool plan and the Charlotte racial balance planwere both acceptable on the ground that each gota fair hearing. With two conflicting plans upheld,no matter what the accompanying language, therewould be great room for administrative interpreta-tion and no need to reopen many cases. If this wasthe Administration's expectation, it must havebeen disappointed.

The Administration's initial reaction to theSwann decision was terse. Ronald L. Ziegler, WhiteHouse Press Secretary announced the day after thedecision that

The Supreme Court has acted and thedecision is now the law of the land andit is up to the people to obey it. It isup to local school districts and courtsto carry out the court decision. TheDepartments of Justice and HEW willcarry out their statutory responsi-bilities.

The Administration's position was somewhatclouded a day later by HEW Secretary ElliotRichardson in a speech to an NAACP Legal De-fense Fund dinner in New York City. The Secre-tary seemed to be falling back on the ambiguousrhetoric which had characterized the Administra-tion:

11

The awareness of the indispensablepart played by individual understand-ing and mutual trust is at the heart ofAdministration policies in the field ofcivil rights. We are committed to thefull enforcement of the requirementsof the law. But we are convinced thatthese requirements can now be ful-filled more effectively by cooperationthan by coercion, by persuasion thanby force.

Cooperation and Local ResponsibilityWord emanated from the White House that

two general principles for dealing with the decisionhad been adopted: cooperation, not coercion, asSecretary Richardson had said, would be theapproach; and the burden of new desegregationrequirements would be borne mainly by southern-ers, not the Federal Government. There werereports that the Cabinet Committee on Educa-tion4 and seven State Advisory Committees onPublic Education (formed last summer in Ala-bama, Arkansas, Georgia, Louisiana, Mississippiand North and South Carolina) would be reacti-vated to aid in the local effort. These were alarm-ing signals to those concerned with bringing abouttotal school integration. Politically motivatedhandholding of local officials would be one thing,but to ignore completely a clear Supreme Courtmandate and turn a well-established federal re-sponsibility over to state and local governmentswould be outrageous and totally unacceptable.

Further clues regarding the Administration'sresponse to the decision were not forthcoming.This was discouraging; if meaningful action wereto be required, it would have to be initiated soonbecause of the time required for major reorganiza-tion of large urban school systems. Then on May13, 1971, syndicated columnists, Rowland Evansand Robert Novak reported that a major strugglewas going on between HEW and the Departmentof Justice over implementation of Swann. Attor-ney General John Mitchell was pushing a "go

slow" approach, they reported, while HEW offi-cials were urging vigorous action. Forces in theWhite House were said to be equally divided.Subsequent reports raised questions about theaccuracy of the Evans and Novak interpretation offederal intentions. It is now widely speculated thatthe Evans and Novak article was planted by theAdministration to cover positive federal action.

The Austin Plan*The Administration was forced to respond

one way or the other to the Swann decision onMay 14, 1971. The Department of Justice hadbeen ordered by a federal district judge to submita final desegregation plan for Austin, Texas onthat date. The Austin case had involved the HEWTitle VI and Title IV offices and the JusticeDepartment for several years. After prolonged butunsuccessful negotiations over plans proposed byHEW and the Austin School Board, HEW hadinitiated Title VI enforcement proceedings againstAustin. An administrative hearing had been heldJanuary 20, 1970, and the hearing examiner ruledin HEW's favor on August 7, 1970. But Austinschool officials would not budge, and with the Fall1970 deadline for the completion of Southwidedesegregation fast approaching, the Department ofJustice filed suit against the district.

Austin was not a simple case. Strictly segre-gated housing patterns for blacks and Mexican-Americans made meaningful school desegregationimpossible without substantial busing. The judgedid not order a final plan to be implemented inSeptember 1970, but instead ordered an interimplan for September and called for final plans forthe following September to be submitted later.The Department of Justice did not appeal thistwo-part ruling because it apparently had notdeveloped thoroughly the portion of the casedealing with Mexican-American students. Furtherdelays by the judge and the Justice Departmentcaused May 14, 1971 to be set as the final dale for

* As this article went to press July 19, 1971, Federal District Judge Jack Roberts rejected the HEWdesegregation plan for Austin elementary and junior high schools, and adopted instead the local schooldistrict's plan which would establish fine arts, social science, avocation and science centers to which pupilsof all races would be bused.

The Junior high plan also reassigns all black pupils to schools "that are not identifiable as Negroschools." The senior high plan, agreed to by both HEW and the local district, would close a predominantlyblack school this year and reassign the black pupils to schools not identifiably black. Judge Roberts rejectedthe Government's request to give every school the same racial and ethnic mix as the city at large (65%Anglo, 20% Chicano, 15% black). [New York Times, July 20, 1971, p. 17] .

The question remains whether the Justice Department will appeal this decision.

12/INEQUALITY IN EDUCATION 12

YC

both the school board's and Federal Government'ssubmission of plans.s

The HEW desegregation plan for Austinembraces the most positive principles of theSwann decision. It does not racially balance everyschool, as did Dr. John Finger's plan for Charlotte,North Carolina, but it does use several non-contig-uous zones and requires extensive new busingnecessitating the purchase of perhaps as many as100 buses. Under the district's existing studentassignment plan, 19 schools have over 85 percentminority student enrollment. Under the HEWplan, all high schools and junior high schoolswould have Anglo majorities and only eight of 54elementary schools would remain between 50 and60 percent black and Mexican-American com-bined. (All eight would involve contiguous pair-ing.)

If the Austin case should turn out to be themodel Administration response to the Swanndecision, "cooperation rather than coercion" re-fers more to the politics of desegregation than tothe process itself. The HEW plan was transmittedby letter to the Austin Superintendent with a copyto the judge, rather than directly to the judge as issometimes the case. The letter began by comple-menting Austin school officials on their own plan,in which HEW said they had incorporated the

concepts of the Swann decision and outlined aneducationally sound approach.6 The HEW letterthen detailed the Department's recommendationsfor improvements upon the district's plan.

Questions from AustinWhile the HEW-Justice Department plan for

Austin seems to be a positive interpretation ofSwann, two reservations are in order. HEW devel-oped its plan without accurate and up-to-datepupil locator maps so that some of the boundary

13

00.c

lines appear to be based on erroneous data. HEWofficials have unofficially said they will amend theplan to correct these errors, which so far seem tohave been bureaucratic in origin and not based onpolicy decisions. More importantly, while eightelementary schools will have enrollments of be-tween 50 and 60 percent minority students, thereare schools which are still overwhelmingly Anglo.Even though there are se,..eral non-contiguouspairing arrangements, there are 11 majority Angloschools remaining in single school zones. Of these11, five have over 85 percent Anglo enrollment,including one which is 100 percent Anglo. Thisimbalance may well lead to resegregation of someof the newly desegregated schools. The FederalGovernment's legal responsibility to insure thatresegregation does not occur is, however, not clear.

The Supreme Court concluded Swann byholding that where adpquate remedies for pastsegregation have finally been implemented, federalcourts will not continue to require readjustment ofattendance zones to reflect changing populationpatterns. The possible meaning of this is that oncethe last vestiges of the old system of officialsegregation have been eliminated, Southern schooldistricts will be on the same legal footing as thoseoutside the South in which subsequent racialimbalance resulting from changing residential pat-terns will not be attributed to the old de juresystem. The Administration seems to be readi; gSwann as requiring the elimination of almost all, ifnot all, majority black schools (and Mexican-American schools, in the Austin case) withoutregard for the composition of the white schools. Itis obviously going to use predominantly or all-white schools in non-contiguous pairings withblack schools, but it is not going beyond the issueof predominantly minority schools to the com-

13

bined issues of "tipping points" and racial balanceassignment plans to erase the danger of resegrega-tion. It seems to feel that in Swann the SupremeCourt has said that elimination of identifiableminority schools is the end of public responsibilityfor eliminating the dejure system of segregatedschools, and therefore, the last political contro-versy in Southern school desegregation. In its view,the South then becomes like the North, and thepolitical implications of that are in the future andhave decidedly different dimensions.

While the Administration has gone furtherthan ever before, the fact remains that in theAustin case the Administration reacted defensively

from a direct order of a court outlining thenecessity of some response.

Nashville SoundingsThe Administration has repeated its Austin

posture in a second case Nashville, Tennessee. InNashville, the plaintiffs are represented by theNAACP Legal Defense Fund, but the HEW TitleIV Office was ordered to draft a desegregationplan. On June 1, HEW submitted a plan similar tothe Austin one, eliminating the racial identifica-tion of at least 28 of 29 majority black schoolsand calling for extensive busing. But here too itleft 38 schools (25 percent of all the schools in thesystem) more than 85 percent white, a situationwhich may well result in resegregation.

Most large urban areas in the South areinvolved in suits brought by the NAACP LegalDefense Fund. The Justice Department has inter-

vened in some of these cases, and judges haveoften called upon HEW to develop the plans.Southern judges have tended to rely more on HEWplans than private plaintiff plans, and the Depart-ment of Justice must approve all HEW planssubmitted in court cases. The Nashville action is atleast a precedent for future Government action toeliminate most identifiable minority group schoolsin cases brought by private plaintiffs in which ajudge orders them to draw up a plan. Some critics,however, have said that Austin and Nashville are"one-shot deals" and do not constitute a pattern.That remains to be seen.

Reopening Other Wounds?Austin is a suit still before the courts but

initiated long ago by the Department of Justice.The real question is whether the Justice Depart-ment will file new motions in cases now dormant,

14/INEQUALITY IN EDUCATION

and whether HEW will renegotiate Title VI deseg-regation plans where they conflict with Swann. Atleast three of the HEW districts are large urbanareas: Prince Georges County, Maryland, a suburbof Washington, D.C.; Columbia, South Carolina;and San Antonio, Texas. HEW and the Depart-ment of Justice have several medium-sized citiesfor which they are directly responsible. HEW, forexample, is responsible for Marion County, Flori-da; Gulfport, Mississippi; Kinston City, NorthCarolina; Sumter, South Carolina; and Hamptonand Alexandria, Virginia, while the Justice Depart-ment is responsible for Natchez and Hattiesburg,Mississippi; Florence, South Carolina; and Lub-bock, Ector County (Odessa), Port Arthur, andSouth Park, Texas. The most certain indicationthat the Administration is responding in a consist-ent and comprehensive manner to the Swanndecision will be its decision with respect tocorrecting plans with seriously imbalanced schoolsin small districts, many with majority blackstudent enrollments. Two examples are HumboldtCounty, Tennessee and East Tallahatchie, Missis-sippi.

Humboldt County has approximately 2800students, 43 percent of whom are black. Under thecourt-ordered desegregation plan not appealed bythe Justice Department, 88 percent of blackelementary school students attend a school whichis 83 percent black. The other elementary schoolsare virtually all white. In East Tallahatchie, Missis-sippi, with a 2700 student enrollment which ismore than 60 percent black, a consent decree wasentered into by the school district and theDepartment of Justice. As described in The Statusof School Desegregation in the South, 1970:

14

The plan provides for a single "attend-ance center" for grades 7-12, madeup of the former black and the formerwhite high school. At each grade level,some courses are offered at one schooland some at the other, and studentsare bused back and forth between thetwo "campuses."

At the elementary school level, thedistrict is divided into two zones. Onezone produced a school projected tobe about 84 percent black, but whenour monitor visited the district afterschool opened, the school turned outto be all-black.

The other elementary zone is servedby a single 'attendance center,' made

up of three schools. Each elementarystudent in that zone spends part of hisschool day at each of three schools,and of course, spends another largepart of the day riding around betweenthe schools in a school bus.

This astonishing plan was apparentlyadopted in an effort to appease thelocal white community. White parentswould not stand for their childrenattending formerly black schools forthe whole day, but could toleratethem passing through these schools inthe course of a bus shuttle tour eachschool day.'

If the Administration decides to pursue allthe above types of cases consistently, one furtherquestion must be raised when will it begin thecomprehensive approach? It generally takes severalmonths for HEW to notify a district that furtherchange is required and to negotiate a settlement,and for the Department of Justice to file newactions, set a hearing date, develop a new plan, andget a judge to order it. School opens in less thantwo months. If the government does not act thissummer, is it likely to act any nearer to ElectionDay 1972?

Administration PathwaysAll the returns are not yet in on the question

of how the Nixon Administration is responding toSwann. But if its actions to date are distinguishedfrom its rhetoric, the Administration, at a mini-mum, has apparently started on a positive pathwaytoward eliminating minority group schools but acynical one ignoring the dangers of resegregation.There is nothing to suggest it will deviate fromthat path, but bitter experience has taught cautionabout characterizing this Administration's inten-tions with respect to school desegregation. Thereasons for the Administration's initial positiveposition regarding the requirements of Swann arenot immediately apparent, but may involve thefollowing factors:

1) After closer examination, the Adminis-tration may have found that the problems ofdesegregating student assignment in many schooldistricts has indeed been completed. The Swanndecision deals with little other than the physicalaspects of desegregation, and it probably has lesseffect on the Administration's required perform-ance than the Alexander decision did. Further-more, it sets forth conditions under which the

Federal Government's responsibility is ended, atleast as the Nixon Administration interprets it.The Federal Government has some large urbandistricts in the South for which it is directlyresponsible, but most urban areas are handled byprivate plaintiffs. Inaction of earlier Administra-tions not so much for political reasons as for alack of legal remedy in large southern urban areaswith de jure segregated school assignment patternsreinforced by segregated housing patterns result-ed in private plaintiffs filling the litigant void. TheAdministration may have concluded that it couldweather isolated political storms over the limitedpositive responses to the Swann decision.

2) While it would be a gross overstatementto speak of a wave of liberalism sweeping theSouth, it is not too much to say that the blatantpolitics of race, as practiced throughout the Southin the past, are no longer acceptable in mostquarters. This must have been perceived by eventhe "Southern strategists" within the Administra-tion. Those who have counseled that policiesdesigned to capture the Wallace vote were essentialto a second term for this Administration may notbe calling the shots. Instead, the Administrationmay be reacting politically to some moderatestraws in the wind to the successful campaign ofGovernor John West in South Carolina against hisracist Republican opponent, former CongressmanAlbert Watson; to the public acceptance of themoderate posture of Republican GovernorLinwood Holton of Virginia on the race question;the election of Governor Reubin Askew andSenator Lawton Chiles in Florida, and GovernorJimmy Carter and the appointment of SenatorDavid Gambrell in Georgia; and the reportedproblems of Governor George Wallace in his homestate of Alabama. Much of the moderation on therace question appears to have occurred in theDemocratic Party, the traditional seat of Southernracial politics. If this could happen in the Demo-cratic Party, the Administration strategists mayhave reasoned, perhaps just perhaps theRepublican Party likewise can afford to deal withissues of equal educational opportunity, discrimi-nation in education and segregated schools on thebasis of substance without suffering politically. Asthe conservative columnist and former Mitchellaide Kevin Phillips wrote on June 22:

15

The major ingredient of PresidentNixon's new suburban housing policyappears to be political fakery.

15

Mr. Nixon is following the same pat-tern he has followed in his 'defense' ofthe neighborhood school a heavyopening barrage of conservative rheto-ric followed by a subsequent activityin the other direction.

Actually, Nixon officials knowthey will be moving in liberal direc-tions with a zig-zag or two fromthe moment they completed their cal-culated conservative public relationsbuildup.

If indeed the Administration intends to react torace-related issues in the way suggested by Mr.Phillips, perhaps that may account at least inpart for what appears to be a relatively positiveAdministration reaction thus far to court rulingson school desegregation and particularly to theSupreme Court's Swann decision.

3) There are now other issues in the schooldesegregation/integration struggle which may be orwill be causing greater administrative and politicalheadaches for the Administration than the physi-cal desegregation issues dealt with in Swann. These

include (1) the government's responsibility todesegregate northern schools; (2) the growth ofsegregated private schools as alternatives to publiceducation both North and South, along with thefinancial crisis of traditionally segregated parochialschools; (3) the signs (such as the school suit inRichmond, Virginia) of possible legal requirements

that all metropolitan area schools must be integra-ted; (4) the destruction of black authority figuresin Southern schools through the dismissal anddemotion of black principals and teachers; (5) theproblems of in-school segregation and of discrimi-nation against students, especially through the useof culturally-biased tests and ability grouping; (6)the general nationwide phenomena of racial con-flict and unrest in high schools; and (7) theemerging legal mandates to correct fiscal inequi-ties, at state levels particularly, but also at thefederal levels, in the financing of public schools.

With these issues facing them, the Adminis-tration may have decided to put the easier issuephysical desegregation behind it once and forall.

FOOTNOTES

1. Swann v. Charlotte-Mecklenburg Board of Education,91 S.Ct. 1267 (1971); North Carolina State Board ofEducation v. Swann, 91 S.Ct. 1284 (19711:McDaniel,Superintendent of Schools v. Barresi, 91 S.Ct. 1287119711; Davis v. Board of School Commissioners ofMobile County, 91 S.Ct. 1289 (1971); Moore v.Charlotte-Mecklenburg Board of Education, 91 S.Ct.1292 (1971).

2. Through the early months of the Nixon Administra-tion, the Federal Government attacked school segre-gation on two fronts in court by the Departmentof Justice under Title IV of the Civil Rights Act of1964 and the Fourteenth Amendment, and adminis-tratively by HEW under Title VI of the Civil RightsAct of 1964. Subsequently, the use of Title VI wasabandoned and practically all enforcement responsi-bility was transferred to the Department of Justice.The NAACP Legal Defense and Educational Fund,Inc. is currently suing HEW for failure to enforceTitle VI.

3. "Underlying these problems is the mistaken belief thatdesegregation is simply the mixing of black and whitestudents in schools and no more. Little attention hasbeen paid to the way in which student assignment hasbeen carried out or to what happens to black studentsand faculty in 'desegregated' schools. The latterconcerns are sometimes viewed as 'second generation'desegregation problems which, it is thought, will workthemselves out after the 'primary' task of mixing thebodies is accomplished." The Status of School Deseg-regation in the South, 1970, a Report by the AmericanFriends Service Committee; Delta Ministry of theNational Council of Churches; Lawyers' Committeefor Civil Rights Under Law; Lawyers' ConstitutionalDefense Committee; NAACP Legal Defense and Edu-cational Fund, Inc:; and the Washington ResearchProject; December, 1970; p. 2.

16/INEQUALITY IN EDUCATION

4. The Cabinet Committee on Education, originallychaired by Vice President Agnew, is now chaired byGeorge P. Schultz, Director of the Office of Manage-ment and Budget.

5. The judge had ordered the HEW Division of EqualEducation Opportunity (Title IV Office), the technicalassistance unit under Title IV of the Civil Rights Actof 1964, to draw up the plan for the Department ofJustice.

6. "Having had an opportunity to review that proposal,we note that your Board has put forth a plan ofdesegregation which embraces those concepts of stu-dent assignment, such as non-contiguous zoning, whichhave been recognized by the United States SupremeCourt in the recent Swann decision as legitimate toolsfor achieving stable and educationally sound desegrega-tion in former de jure school systems.

"Although we have not yet completed a definitivereview of your locally developed proposal, we believeit provides the basis for an educationally soundapproach. We, therefore, wish to offer the followingcomments on your proposal which we hope will assistyou and, according to its request, the Federal DistrictCourt in Austin in meeting current United StatesSupreme Court standards. We feel that it would bemore helpful to you and to the District Court for us tostart with the essentially sound elements of your plan,taking into account the judgments of both your schoolboard and the Tri-Ethnic Citizens Advisory Committeewhich it appointed." Letter of May 14, 1971, fromMr. Tom Kendrick, Senior Program Officer, DallasOffice of Division of Equal Educational Opportunity,U.S. Office of Education, to Dr. Jack Davidson,Superintendent, Austin Independent School District,p, 1.

7. The Status of School Desegregation in the South,1970, p. 16.

1G

Segregation, Northern Style*

by Paul R. Dimond

School segregation in the North is pervasiveand, with the exception of a few communitieswhich have implemented system-wide desegrega-tion plans, it is growing.** The question facing thecourts is whether this school segregation violatesthe 14th Amendment. This article describes recentcourt actions which have held that it does andexplains the reasons why.

Examination of Northern school segregationdecisions, and the proof underlying them, suggeststhat in recent years courts have revisited the issuewith far greater sophistication than previously.Courts are coming to understand that for manyyears authorities in almost every community haveassigned pupils and teachers to particular schools.School segregation, therefore, has not just "hap-pened". and is not adventitious, but has resultedfrom the actions of public officials. In suchcircumstances, it is not surprising that schoolsegregation, North as well as South, is viewed as"state-imposed" and unconstitutional under the14th amendment.

The early "northern" school segregationdecisions were few and conflicting. Three circuitsheld school segregation constitutional in Cincin-nati, Gary and Kansas City,' while the 2nd circuitreached the opposite result in New Rochelle.2 Atthe time these decisions were made, "free choice"pupil transfers in formerly dual school systemsseemed permissible, and the affirmative 14thamendment obligations regularly applied to reviewof allegations of racial discrimination3 had not yetbeen clearly applied to any school segregation.4Green v. County School Board [391 U.S. 431(1968)] removed any lingering doubts: the tradi-tional affirmative obligation under the 14thamendment was "in," and any form of "freechoice" which did not end school segregation was"out." Since that time, a spate of decisions has

Paul Dimond, a staff attorney at the Center forLaw and Education, is currently co-counsel in aDetroit school desegregation suit.

consistently held school segregation actionable inmany "Northern" cities: South Holland (Illinois),5Pasadena,6 Las Vegas,' Los Angeles,' Pontiac(Michigan),9 Benton Harbor (Michigan),1° Den-ver,' 1 San Francisco,' 2 and Oxnard County (Cal-ifornia).' 3 Significantly, district and circuit judgeshave used a variety of constitutional theories toget around previous decisions in order to holdschool segregation unconstitutional. Swann' 4with its strong language on faculty assignment,equalization of facilities and resources, and schoolconstruction only lends support to such deci-sions.

Roof in the Segregation PuddingIn the new Northern cases, proof of a

pattern of segregation has also been important tothe judicial review of school segregation. Thisproof usually starts with statistics showing theextent of pupil segregation: the number andpercentage of all or predominantly black andwhite schools, and the number and percentage ofblack and white pupils attending racially separateschools. In a hypothetical school system with5,000 white and 5,000 black pupils, if 4,750 blackpupils are isolated in schools with 250 whites and4,750 white pupils are isolated in separate schoolswith 250 blacks, these figures, standing alone,should speak thunder under any theory of consti-tutional law. Even if a particular judge is strainingto find a Grand Canyon dividing the respectiveblack and white school populations (more than a

*By "Northern," I mean places where racially dualschools were not mandated by explicit statements ofpublic policy as was the case in many places on which Ibestow the under-inclusive appellation "Southern."(After all, Brown / did include cases from Kansas andDelaware.)

"In the Continental United States 68.0% of all blacksattended 80-100% minority schools in 1968; in 1970it had dropped to 49.4%. But in the 32 Northern andWestern states, 57.4% of all blacks attended 80-100%minority schools in 1968; and in 1970 it was still57.6%. Table 2-A, HEW NEWS, June 18, 1971. Thelarge urban areas in these states have even greatersegregation.

:17 17

railroad track presumably would be required),adequate justification for such a school system,dual in fact, will be difficult to find.' 5

In many school systems, however, the racialseparation of pupils is often not that complete;where the statistics on pupil segregation do notspeak so distinctly, other proof may show aconstitutional violation just as clearly. Schoolauthorities have considerable discretion in assign-ing teachers and pupils to schools, constructingand locating schools and attendance boundaries,choosing initial student assignments, and settingtransfer policies and enforcing them. Careful ex-amination will reveal choices and practices, andtheir effects, which operate to segregate schools ona racial basis.

I. Teacher Hiring and AssignmentPerhaps the most obvious, and telling, evi-

dence concerns teacher hiring and assignment.Whenever there are disproportionately few blackfaculty in any community's public schools, relativeto the adult racial mix, there is a considerablelikelihood of racial discrimination in hiring. Per-haps more telling is a pattern of black teachersbeing assigned primarily to schools with highconcentrations of black students and white teach-ers primarily to schools with predominantly whitestudent bodies. Schools are thereby identified as"black" or "white" by the faculty assignment,' 6and the inference of racial discrimination in

teacher assignment is appropriate.School authorities have little basis for assert-

ing that "neighborhood" schools, transportationproblems, or lack of control over the assignmentof teachers are adequate justification for the primafacie racial assignment of the faculty.' 7 Moreover,such racial patterns and practices in the hiring andassignment of faculty, over which school 'authori-ties undeniably have control, compel more carefulscrutiny of patterns and practices of pupil assign-ment and any asserted justification therefore.[See, e.g., South Holland, III. and Pontiac, Mich.]

II. Pupil AssignmentThe assignment of pupils to various schools

often involves many processes. Where schools relyon geographic zoning for pupil assignment, thedrawing of boundaries and the policing of theassignments, the size of schools, the grade struc-ture, and the construction and location of new

18/INEQUALITY IN EDUCATION

schools, additions to old ones, and placement ofportable classrooms all help to determine whichstudents attend particular schools. The pupil com-position of schools is further affected by excep-tions to strict reliance on geographic zoning. Theseinclude transfer policies ("optional zones," "freetransfer," "free choice," "open enrollment," "ma-jority to minority," "to promote integration at thereceiving school"); transportation practices, andschool plant use (i.e., practices relative to over-crowding and undercrowding of school buildings).I include plant utilization over and undercrowd-ing in the set of practices which deviate fromgeographic zoning because administrative practiceto equalize plant use may depart from geographiczoning. Manipulation of geographic attendancezones, of course, is also a possible response.

A. Exceptions to Geographic ZoningThis set of practices often reveals how acts

of school authorities create and perpetuate schoolsegregation. "Optional zones" usually straddle theedges of geographic attendance zones to permitstudents to attend either school. Whenever option-al zones exist between a predominantly black anda predominantly white school, their purpose isusually to allow whites to flee from the "black"school to the "white" one.* The almost invariableeffect is that whites "choose" to attend the"white" school and blacks, with a few exceptions,the "black" school. In many instances, the con-straints on choice inherent in the existence of theoptional zone, and the identifiability of theschools, are further accentuated by the hostilityschool authorities show the few students whoattempt to opt for the school of the oppositerace.** [See, e.g., Hobson 'I, 269 F. Supp., 401,415-17, 499, 501; and Denver].

Similarly, "free transfer" and "open enroll-ment" policies with transportation provided andspace guaranteed at the receiving schools oftenoperate to intensify school segregation. Whilethese policies theoretically allow any student totransfer from his school of geographic assignment

18

*An Identifiably "black" school is defined as a schoolwith a disproportionately black student body anddisproportionately black fdculty relative to the system-wide racial mix; a "white" school has a dispropor-tionately white student body and faculty.

Such hostility includes silent acquiescence in thepressures applied by students and their parents, espe-cially white, to the child of one race that applies to theschool of the opposite race, and simply lying aboutspaces available.

to any other school in the system, purely racialreasons often can be shown to govern the transferchoices. In other instances, subtle pressure byschool authorities may also promote a white flightfrom "black" schools, while discouraging a similartransfer by black students into "white" schools.Invariably, "free transfer" and "open enrollment"policies increase segregation: hordes of whites fleetheir geographically-assigned schools which areperceived as "black"; no whites transfer into"black" schools; very few blacks transfer into"white" schools; and some blacks "transfer" from"white" to "black" schools. [See, e.g., Monroe v.Bd. of Commissioners of Jackson, Tenn., 391 U.S.448 (1968)]. "Hardship" and even "majority-to-minority-transfer" policies must also be closelyexamined, for in practice their enforcement maybe honored in the breach and operate to segregateschools.* [See Pasadena and the May 22, 1971Order of the Massachusetts Commission AgainstDiscrimination] .

Bus Transportation and School UtilizationRegardless of a system's transfer policies, the

actual transportation of children may show howschool authorities segregate schools. Black childrenmay be bused to "black" schools past predomi-nantly "white" schools with space available, orwhite students may be transported to "white"schools past predominantly "black" schools withspace available. This patently "dual" transporta-tion sometimes occurs under the guise of relievingovercrowding and maximizing the efficient use ofthe school plant. Only somewhat less subtle isone-way busing to "white" schools of whitestudents who live much closer to "black" schoolswith available space. [See South Holland] .

The pattern of school plant utilization mayalso provide proof of racial segregation. "Black"schools may be overcrowded while "white"schools have space. Or "black" elementary and"white" secondary schools may be overcrowded,while "white" elementary and "black" secondaryschools are undercrowded. Or there may be a mixof "black" and "white" schools over- and under-crowded. In each case, the equalization of schoolplant use could desegregate schools substantially.Under these circumstances, school authorities arefaced with the choice of equalizing school plantuse to integrate, or to segregate, or not to equalizeplant use at all and perpetuate segregation. Whenover and undercrowding is clear and consistent

over time, the failure to integrate by equalizing useof school plants constitutes a choice to imposesegregation: it is the election of an option whichintensifies segregation. [See Pasadena] .

Under any of these exceptions to geographiczoning, white students will never be transferredfrom "white" schools to "black" schools. [See SanFrancisco, slip op. at 18]. That practice is anarchetype of how school systems cater to theflight of whites and their hostility to associationwith blacks. In determining and enforcing transfer,transportation and plant use policies, school au-thorities diverge from what they claim may be ageneral policy of "neighborhood" zoning. The waythey are implemented may reveal not only howschool authorities have chosen to impose segrega-tion in any particular instance, but also how the"neighborhood" schools are intended to operateto contain blacks in separate schools.I 8

B. Manipulation of Geographic ZonesTo examine geographic zoning as a basis for

school assignment is necessarily to examine therelationship between attendance areas, actualschool assignments, and residential patterns. Theserelationships must be subjected to searching judi-cial scrutiny. Assertions that school segregationresults "from a neutral neighborhood school poli-cy and housing patterns over which the schoolboard has no control" should not be blindlyaccepted. When courts examine school officials'actions, school composition, and housing patterns,the following practices and patterns of state-

imposed segregation in the schools are likely:

School BoundariesContiguous school attendance zones contain

black and white children in separate schools. [Seee.g., South Holland, Ill.].

School boundaries track a sharp demarcationbetween white and black residential areas. [See,e.g., New Rochelle, South Holland, and Pasadena] .

Railroad tracks (or other arguable barriers) areused as school boundary lines when only blackslive on the other side, but attendance boundariescross the tracks freely when both blacks and

19

*Even if the only transfer policy in a school district isthe constitutionally appropriate "majority-to-minor-ity" variety with transportation and space guaranteed,Swann at 1281, and that policy is rigorously enforced,the results are predictably small: a few blacks elect totransfer to "white" schools and no whites elect totransfer to "black" schools.

19

whites live on either side. [See, e.g., Pontiac andSouth Holland].

School attendance zones generally follow resi-dential patterns that maximize school segregation.[See San Francisco and Pasadena].

When black residential areas expand, schoolboundaries are altered or maintained to perpetuatethe containment of blacks and whites in separateschools. [See, e.g., Pasadena; Hobson v. Hansen(supplemental order of Jan. 1971); Branche v.Board of Ed., 204 F. Supp. 150 (E.D.N.Y. 1962)].

Where pockets of one race reside within a largearea of the other race, attendance zones coincidewith the pocket and students living there areassigned to a non-contiguous school of their ownrace or, the equivalent, a school within the pocketjust large enough to serve the students living there.

Where attendance zones encompass a mixedpopulation, schools often remain predominantlyblack because whites are allowed to slip into otherschools. The failure to enforce zone lines strictlymay make every attendance area an "optionalzone" for whites who wish to escape to a "white"school. [South Holland].

Despite this variety of manipulations, the schoolattendance zones of predominantly white residen-tial areas are never altered to feed into a "black"school. [San Francisco, e.g.].

School SizeSchool capacities may vary with the racial

composition of residential areas in a district. Largeschools may serve vast areas which are predomi-nantly black or white, but at the edges betweenwhite and black residential areas, smaller schoolsmay minimize interracial education. Or school sizemay be finely cuned to meet the exclusive needs ofa particular racial pocket.

Grade StructureThe grade structure of schools may also be

varied to segregate schools. Because the area servedby a school varies with the number of grades itserves, schools may be structured (e.g., K-8 and9-12) so that all schools in an area are predomi-nantly of one race. An alternative grade structure(say, K-6, 7-9, 10-12) might lead to substantialintegration in the very same schools. [See, e.g.,South Holland]."If school authorities fail in their affirmative obliga-tions ... judicial authority may be invoked Indefault by the school authorities ... a district court hasbroad power to fashion a remedy that will assure aunitary school system." Swann at 1276.

20/INEQUALITY IN EDUCATION

Contruction and Location of New Schools,Additions and Portable Classrooms

The size and location of new schoolsthroughout a school district in conjunction withattendance boundaries, grade structures, and

teacher assignments frequently create schoolswhich open and remain predominantly white orblack. [See, e.g., Swann, Johnson, Soria, Spang-led. In view of the vast range of options availableto school officials in each decision, a pattern ofpredominantly one-race schools is strong evidenceof that "quantum" of "state-imposed" segregationwhich compels judicial intervention to enforce theConstitution in the- face of default by publicofficials.* [See, e.g., Pontiac, Mich.]. A carefulexamination of the situation at the time of eachnew school opening including the underlyingresidential pattern and the options available toschool authorities will usually confirm theinference compelled by the pattern.**

An Example In ConcreteAn example of how the "neighborhood"

school policy is used may clarify how schoolauthorities build upon residential segregation toimpose segregation in schools.

In the diagram below, A, B, C, D, and Erepresent existing attendance areas and their re-spective elementary schools for about 30 squareblocks in a densely populated section of a city.The chart shows the date of construction, capaci-ty, and enrollment by race for selected years.

AE

C

1

B

J

""The construction of new schools and the closing ofold ones is one of the most important functions oflocal school authorities and also one of the mostcomplex The result of this will be a decision which,when combined with one technique or another ofstudent assignment, will determine the racial composi-tion of the student body in each school in thesystem (CI hoices in this respect have been used asa potent weapon for creating and maintaining a statesegregated school system. , . In ascertaining the exist-ence of legally imposed school segregation, the exist-ence of a pattern of school construction and abandon-ment is thus a factor of great weight. Swann at 1278-79(emphasis added).

20

Year SchoolOpened

School & Attend-ance Area Date Black White Capacity

1930) A 1950 0 600 8001960 0 800 8001970 3 1000 800

(1930) 1950 0 800 10001960 15 900 10001970 37 1200 1000

(1960) 1950 1100

1960 20 1100 11001970 80 1200 1100

(1960) 1950 11001960 20 1100 1100

1970 40 1200 1100

(1944) 1950 550 0 5001960 440 3 5001970 350 1 500

Schools A and B opened in 1930 and servedthe entire area within the dotted line, except for afew black children living in shanties in swampyarea E. (They walked several miles to a predomi-nantly black school in the inner city.) Eventually,black immigrants to the city, and others fromcongested downtown areas, joined the black

families already in E. Real estate authoritiesmarked off the edges of E and, with the .support ofneighborhood associations, encircled it by filingracially restrictive covenants, enforceable by statecourts, in surrounding areas. World War II and themigration of blacks to work in factories to supportthe troops brought many more blacks into E.

Federal war housing authorities could not(by their own policy) build housing for blacksexcept in areas already occupied by them. BecauseE was one of the few black areas in the city withvacant land, temporary war housing for blacks wasbuilt there over the strenuous objections of whitesin surrounding areas. School officials in coopera-tion with federal housing authorities, planned andbuilt a 500 pupil, K-6 school for E-area blackseven though space was available in schools A and Band other nearby "white" schools. The attendancezone for the new school coincided exactly withthe black residential area. The crush of blackimmigrant war workers and the racial restrictionson occupancy in other areas of the city, however,resulted in 700 E-area black elementary studentswhen the school opened. Black persons weredirected by both white and black real estate

21

brokers into E. White brokers counseled whites toavoid E. Black brokers could not sell in areas notalready having some black families. As a result,only 550 were transferred back to E from thedowntown "black" schools they had previouslyattended; despite available space in A and B, theremaining black elementary children remained in"black" inner city schouis. Meanwhile, enterpris-ing whites on the eastern border of E built a brickand cement wall on the school and residentialboundary of E, presumably to prevent encroach-ment by blacks. Both the wall and the coincidentschool boundary remain today.

By 1953 the temporary war housing waseliminated, and the number of black elementaryand junior high students in the E area had declinedto 400. In 1953, E became a K-9 school to servethese students, and 100 blacks from overcrowdedinner city schools were assigned to E until 1965.During the 1950's, the white residential areassurrounding E grew rapidly, leading school offi-cials to build two new schools to serve 1100 pupilseach. The boundaries of the new schools extendedaway from E to permit their "full use"; theboundaries for E, of course, remain unaltereddespite the ease with which E could have beenpaired with any of the surrounding schools, (Ebecoming K-2 and the paired school 3-6). The75 black junior high students in E then could havebeen assigned to the "white" junior high whichserved A, B, C, and D.

21

By 1970, E became a K-6 school again withonly 400 elementary students living in the area.Despite a new policy of relieving overcrowding topromote integration, no students from the over-crowded A, B, C, or D schools were transferred toE, nor were boundaries redrawn, or E paired withcontiguous schools. Although transfers promotingintegration were permitted, no whites transferredinto E and only 50 blacks transferred out.

Lessons from the ConcreteAt many points in this tale, school officials

made choices which contained blacks and whitesin separate schools. Any number of availablealternatives could have integrated schools in thearea.

Write large this single example of a black"pocket" (with a few variations to fit the expan-sion of the ghetto and the variety of segregatorytechniques available to school officials) and thepractice of school officials in most cities andtowns where blacks attend separate schools willemerge. Add that many cities in the 1960'srecommended plans for school desegregation andthe removal of the racially identifiable pattern offaculty assignment and resource allocation. Addthat these were adopted as general policy guide-lines, but were rejected or only partially imple-mented in practice. [See, e.g., San Francisco] . Insome cities specific desegregation plans were re-jected, or adopted and then rescinded, in the faceof white hostility to desegregation. [See, e.g.,South Holland, Pasadena, Denver, and Bradley v.Milliken, 433 F.2d 897 (6th Cir. 1970).] Add thatresidential patterns result from all forms of publicand private racial discr;inination" and thatschools do affect housing choices.2°

In such circumstances, the state's impositionof segregation in schools is difficult to deny. Theburden shifts to school authorities to justify theirfailure to elect alternatives and make decisionswhich minimize segregation. The "neighborhood"school policy underlying these practices must alsobe justified in light of the school segregation itcreates and maintains. When adequate justificationis not forthcoming, as it almost never can be,earlier Northern court decisions upholding "neigh-borhood" schools will be distinguished. The SixthCircuit's opinion in Davis (Slip Op at 5) provides aclear example:

Although each decision considered

22/INEQUALITY IN EDUCATION

alone might not compel the conclusionthat the Board of Education intendedto foster segregation, taken together,they support the conclusion that apurposeful pattern of racial discrimina-tion has existed in the Pontiac Schoolsystem for 15 years.

The Davis court evaluated the Pontiac schoolauthority's purpose from the effect of its actionsand its failures to act.2 I The court examined theoptions available to school authorities for pupiland teacher assignments; where they chose alterna-tives leading to greater racial separation, theresulting segregation was held to be unconstitu-tional.

Independent Appellate ReviewThe major question still unanswered after

Davis is whether appellate courts will reviewrecords independently in order to overrule recalci-trant district judges who uphold school segregationbecause they find no evil intent from the racialeffects. When lower courts view this pattern offacts and find no "purpose" to segregate, indepen-dent appellate review must be made if the courtsare to apply the affirmative 14th amendmentstandard traditionally used in reviewing all otherclaims of racial discrimination.22

All Segregation UnconstitutionalWhen the factors underlying school segrega-

tion and the alternatives available to school au-thorities are subject to searching scrutiny, includ-ing independent appellate review, the rights ofNorthern as well as Southern black school childrenwill no longer depend on the ill will or the capriceof school authorities or district judges. The muchtrumpeted distinction between "de facto" and"de jure" will reach a final deserved resting place.Those labels have always been conclusions; neitheris very descriptive nor analytic. By definition,"de jure" means actionable under the 14th amend-ment; "de facto," not actionable. If, consistentwith the historic 14th amendment analysis ofracial discrimination in all other areas of life,courts require school authorities to justify segrega-tion by showing the promotion of a compellingstate interest by the least onerous (segregatory)means, most Northern school segregation will fall.School authorities will be unable to bear thatburden of proof of adequate justification. The

point is not that "de facto" school segregation isunconstitutional, but that all public school segre-gation is "de jure." That turnabout is consistentwith the Brown court's answer to Plessy: "Weconclude that in the field of public education thedoctrine of 'separate but equal' has no place.Separate educational facilities are inherently un-equal." [347 U.S. at 4951.

That judgment has nothing to do withachievement test scores, or any implication that

black children make "black" schools inferior. It isbased on the fact that segregation in the publicschools, North and South, is imposed on blackpeople by a dominant white majority which isintent on containing blacks in separate neighbor-hoods and schools. When that intent is fulfilled inthe public schools, in which most of us, for betteror worse, are compelled by law to attend for overa decade, the minimum objective remains, as theSupreme Court said in Swann, "to eliminate allvestiges of state-imposed segregation."

FOOTNOTES

1. Deal v. Cincinnati Bd. of Ed., 369 F.2d 55 (6th Cir.1966), cert. den., 387 U.S. 935, on remand, 419 F.2d1387 (6th Cir. 1970), cert. den, because petitionuntimely filed, 91 S.Ct. 1630; Bell v, School of Gary,324 F.2d 209 (7th Cir. 1963), cert. den., 377 U.S.924; and Downs v. Kansas City, 336 F.2d 988 (10thCir. 1962), cert. den., 380 U.S. 914.

2. Taylor v. Bd. of Ed., 294 F.2d 36 (2d. Cir. 19611,cert. den., 368 U.S. 940 [hereafter referred to asNew Rochelle].

3. See, e,g., U.S. ex rel. Seals v. Wiman, 304 F.2d 53,65-66 (5th Cir. 1962); Avery v. Georgia, 345 U.S.559, 561 (1963).

4. Brown I, Cooper v. Aaron, and Griffin v. PrinceEdward County, of course, required affirmativeaction. But the invention of "all deliberate speed" inBrown II and the slow progress of desegregationmade many believe, or hope, that somehow the 14thamendment was to be read with a malign neutralityfor purposes of review of school segregation.

5. U.S, v. School District 151, 404 F.2d 1125 (7th Cir.1969), on remand, 301 F. Supp. 201 (N.D. III. 1969(,aff'd as modified, 432 F.2d 1147, cert. den. [here-after referred to as 151 or South Holland] .

6. Spangler v, Pasadena Bd. of Educ., 311 F. Supp. 501(C.D. Cal. 1970) [hereafter referred to as Spangler orPasadena] .

7. Kelley v. Brown, Civ. No. LV-1146 (D. Nev. Dec. 2,1970).

8. Crawford v. Bd. of Educ., Civil No. 822854 (LosAngeles Super. Ct. May, 1971).

9. Davis v. School Bd. of City of Pontiac, 309 F. Supp.734 (E.D. Mich. 1970), aff'd F.2d (6th Cir. 1971)[hereafter referred to as Davis or Pontiac] .

10. Berry v. School District, Civ. No. 9 (W.D. Mich., Feb.17, 1970) [hereafter referred to as Berry or BentonHarbor].

11. Keyes v. School District No. 1, 302 F. Supp. 279 (D.Colo. 1969), 313 F. Supp. 61 and 90 (D. Colo.1970), aff'd in part and rev'd in part, F.2d (10th Cir.1971) [hereafter referred to as Keyes or Denver] .

12. Johnson v. San Francisco Unified School District(N.D. Cal. April 28, 1971) [hereafter referred to asJohnson or San Francisco]

13. Soria v. Oxnard School District Bd. of Trustees, CivilNo. 70-396 (C.D. Cal. May 12, 1971) [hereafterreferred to as Soria]. In addition, at the close ofplaintiffs' proof in Bradley v. Milliken, Civ. Act. No.35257 (E.D. Mich. June 16, 1971) (Detroit) thedistrict court held that plaintiffs had established aprima facie case and issued an injunction, pendentlite, on all school classroom construction newbuildings, additions, and portables.

14. Swann v. Charlotte-Mecklenberg Bd. of Ed., andcompanion cases, 91 S. Ct. 1267 et seq. (April 20,1970) [hereafter referred to as Swann or Charlotte] .

23

15. In Mobile, the Supreme Court found use of a majorpublic highway as a barrier to school desegregation aninadequate justification for continuing school segre-gation. Davis v. Board of School Commissioners ofMobile, 91 S.Ct. 1289. Compare the conclusion ofthe district court in South Holland, Ill.:

[5] tandards and procedures pursuantto which pupils are assigned to schools,which are alleged to be racially discrim-inatory and which have resulted inexclusively white student bodies in reg-ular classes in 'certain of a district'sschools alongside almost exclusivelyNegro student bodies in the district'sremaining schools, are subject to themost intensive judicial scrutiny ...[301 F. Supp. 201, 230] .

16. Usually, any doubts on this score can be clarified bythe past practice of assigning no black teachers to allwhite schools or removing any black teacher assignedto such schools when white parents protest theinvasion.

17. "In its assignment of faculty, a school district isburdened with none of the impediments otherwisepresent in a desegregation plan. The limiting effect ofattendance zones and difficulties of transportationare not present in this area to any substantialdegree." US, v. Bd. of Education, Tulsa, Oklahoma,429 F.2d 1253, 1260 110th Cir. 1970); "Defendantsand their predecessors undeniably had actual andlegal control... with respect to the racially patternedallocation of faculty and staff during the pertinentperiod..." U.S. v. School Dist. 151, 301 F. Supp.201. Nor have labor contracts to the contrary everbeen recognized as being of any weight, let alonecontrolling, for purposes of analysis under the 14thamendment.

23

rs

18, Proof of resource disparities between predominantlyblack and white schools may serve a similar function.Yet equality of objectively measurable facilitiesbetween black and white schools may also be abelated attempt to buy off desegregation at the priceof resource equalization.

19. The involvement of public officials in the patterns ofhousing segregation is startling. The F.H.A, and itspredecessor agenc ies long encouraged developers andowners to use racially restrictive covenants and tocreate racially homogeneous neighborhoods. To thisday, the F.H.A. has not taken adequate precautionsto insure that new housing is open in practice to allraces; nor has the F.H,A. taken any affirmative actionto alter the racially separate residential patterns ithelped to create. Discriminatory real estate marketingand advertising practices, undertaken by licensees ofthe states, are notorious and pervasive. Public housingauthorities everywhere built racially separate projectsand still refuse to build racially mixed projects inwhite residential areas. This litany of public andprivate housing discrimination could go on; thediscrimination and its long persisting effects certainlydo.

Upon viewing such facts, post-Green courts haveconsistently held that a neighborhood school policyneutral on its face is an impermissible imposition of

24/IN EQUALITY IN EDUCATION

iiikh, I

Photo by: Patricia Hollander

segregation in the schools. See, e.g., Brewer v. SchoolBd. of City of Norfolk, 397 F.2d 37, 41-42 (4th Cir.1968); Henry v. Clarksdale Municipal School District,409 F.2d 682, 687-689 (5th Cir. 1969); Spangler v.Pasadena City Bd, of Ed., 311 F. Supp. 734, 742(C.D, Cal. 1970); U,S. v. Tulsa, 429 F.2d 1253 (10thCir. 1970). In such circumstances, any neighborhoodschool policy may serve to contain blacks and whites,already resident in separate neighborhoods by "stateaction," in racially separate schools.

20. "People gravitate toward school facilities... Thelocation of schools may thus influence the patternsof residential development of a metropolitan area andhave important impact on composition of inner-cityneighborhoods." Swann at 1278, By identifyingschools as primarily black or white, school authoritiesare, at least in part, responsible for racially separatehousing patterns,

21. "The purpose of legislation is to be determined by itsnatural and reasonable effect, and not by what maybe supposed to have been the motives upon whichthe legislature acted." New York v, Roberts, 171 U.S.658, 681 (1898) (Harlan, J., dissenting).

22. See, e.g., Coleman v. Alabama, 389 U.S. 22, 23(1967).

24

The Sociology of Multiracial Schools

by Robert L. Green, John H. Schweitzer, Donald S. Biski-n, and Lawrence W. Lezotte

The ideas discussed in this article reflect theauthors' commitment to multiracial schools, non-discrimination, and equitable treatment for minor-ity students and school personnel after desegrega-tion. Based on our experiences as social scientistsand educational researchers, and as expert witness-es and research consultants in three major schooldesegregation cases,' our philosophy of multiracialschools rests on three assumptions: (1) that multi-racial schools provide optimal conditions on whichto build an egalitarian multiracial society; (2) thatschool segregation is detrimental to the educa-tional and psychological development of majorityand minority children; and (3) that multiracialschools are effective settings for teaching attitudesand behavior essential to dissolving and reducingracial tension. We also believe that multiracialschools are obtainable if the nation will commititself fully to pursuing the basic principles of theAmerican Constitution.

Although we are committed to multiracialclassrooms, we are aware of the negative ramifica-tions they may have for the black community. Arecent Race Relations Information Ceriter2 report,for example, indicates some negative effects ofdesegregation on black teachers in the South. Ablack male with 25 years pf experience as aprincipal was assigned to teach social studies andhistory to seventh graders. A woman with nineyears experience scored two points below Bcertification and did not receive a new contractfrom her school. A home economics teacher of 23years was fired for "incompetence" five days aftersigning her new contract to teach second grade. Asthese examples illustrate, court actions pressing formultiracial classrooms are not enough. Social

Robert L. Green is a professor of educationalpsychology and the director of the MichiganState University Center for Urban Affairs.John H. Schweitzer and Donald S. Biskin areinstructors at the Center, andLawrence W Lezotte is an assistant directorof research there.

scientists must help develop systems to protectminorities from becoming victims of intense racialdiscrimination in a new system of Multi-racialeducation.

This problem is complicated by the fact thatthere is no readily-identifiable standard to whichschool desegregation efforts can be directed. Theo-retically, it makes little difference whether deseg-regation activities rest on a specific majority-minority student ratio or upon proportional repre-sentation. What is important is that the resultsreflect non-extreme racial composition. The num-bers (quota) "game" may become a quagmirewhich deters rather than facilitates multiracialschool efforts. Consequently, the only helpfulgeneral recommendation is that every attempt be

made to eliminate the racial identifiability ofschools.

Uniracial Schools HarmfulWe believe that racially identifiable schools

(white as well as black) have harmful effects onthe achievement, self-concepts, and attitudes of allstudents. While the exact proportion of minorityand majority children is not as important as theperceptions of the administrators, teachers, par-ents and children, any racially identifiable schoolcarries artificial connotations of inferiority orsuperiority with negative impact on school pro-gramming and attitudinal development.

The concept of racially identifiable schoolsis relative. In one school district a school with 40%black students might he perceived as multiracial,while in another district it would be racially-ident-ifiable. The effect of being perceived as raciallydistinguishable, however, is not ambiguous: thewhite educational establishment is able to setminority youngsters aside in isolated educationalsettings and deny them the full range of cognitiveand affective educational experiences.

White parents often change their children'sschool because they believe that education atpredominately black, Mexican-American, or Puer-to Rican schools is inferior. Minority parents

25

believe, often justifiably, that minority schoolresources are less adequate and the teachingpersonnel less experienced and trained than theyare in majority schools. In Berry, for example,(and many other cases),3 teachers with fewercredentials were shown to be assigned to the blackschools. A report on Chicago schools4 showed thatinner city schools employed 36% full-time substi-tutes while no other Chicago schools averagedmore than 14%. Eighty-two percent of all Chicagosubstitutes taught in inner city schools. And themedian years of teaching experience in the innercity was four, compa. ed to 19 in upper incomeschools, 15 in middle income schools, and nine inlower income schools elsewhere in the city.

These facts undermine many minority par-ents' belief that the educational system works inthe best interest of their children. And children,both minority and majority, are quick to internal-ize their parents' perceptions of the school theyattend. Minority students soon develop resent-ment, hostility, and resignation because theyperceive, and often know, that their education isinferior. White children, on the other hand, oftendevelop feelings of superiority which the educa-tional system fails to counter. They develop a needto keep a distance between themselves and minor-ity children, and the education system reinforcesthis directly. A vicious cycle resulting in greaterseparation, both physical and psychological, devel-ops, and the self-fulfilling prophecy of inferiorminority schools is continued.

That school segregation is detrimental to theeducational and psychological development ofboth majority and minority children is a well-doc-umented fact. Racially isolated schools do not andcannot promote the attitudes necessary for func-tioning in a multiracial society. If they did, therewould be no need to modify many existingeducation systems. But since they do not, theymust be changed into multiracial learning environ-ments.

Multiracial Classrooms NeededMerely attaining a multiracial composition

within a school is not sufficient to eliminate racialisolation. A mix within each classroom is necessaryto eliminate the deleterious effects of racialisolation. Many Southern school districts haveblatantly violated the spirit of desegregation ordersby creating all-black classrooms within nominally

26/INEQUALITY IN EDUCATION

integrated schools. Recently classroom segregationwas discovered, for example, in 125 districts.5 Inthe North this kind of segregation is produced by"tracking": homogeneous "ability" groupings usu-ally produce predominately black and predomi-nately white classrooms within multiracialschools.6 Although no evidence proves that track-ing improves either the quality of instruction orachievement, there is compelling evidence that thecreation of racially identifiable classrooms hasgrave negative consequences.7 One researcher,8using data originally gathered for the ColemanReport, found that minority students do notbenefit from attendance at multiracial schools ifthey remain in segregated classes. In fact, raciallyidentif able minority classrooms within a majoritywhite school were found to be more detrimentalto minority student achievement than were racial-ly identifiable minority schools within a majoritywhite school district. Undoubtedly, the dynamicsof negative perceptions toward black schools arealso at work in predominately white schools in thedevelopment of perceptions regarding black class-rooms and artificial views of superiority. Thewhole system of white education, from administra-tion through the classroom level, is a prototype ofthe racially exclusive and biased conditions in thegreater society, and must be changed.

Effect on White AttitudesThe damaging consequences of racially iso-

lated classrooms and schools extend beyond theacademic performance of black school childrenand the subsequent impairment of their ability tocompete economically and occupationally withwhites. Racial isolation in the schools fostersattitudes and behavior that perpetuate isolation inother important areas of life. Whites who attendracially isolated schools develop unrealistic self-concepts, hate, fear, suspicions, and other atti-tudes that alienate them from minorities. Theytend to resist desegregation efforts in areas such ashousing, employment, and schools. Highly trainedblack university graduates frequently are facedwith the same barriers that affect the black highschool dropout. Multiracialism is important, there-fore, so that whites who attend suburban highschools and predominately white universities willnot erect further barriers to minority universitygraduates, high school dropouts, or minority peo-ple who are victims of the welfare system.

2G

Whites who have attended multiracialschools tend to seek racially mixed situations, havea greater probability of having black friends,appear more interested in having their childrenattend multiracial schools, and more frequentlyindicate that they would go out of their way toobtain housing in a multiracial neighborhood, thanwhites who attend racially isolated schools.

Multiracial schooling produces similar atti-tudes in blacks who express a greater willingness toreside in a multiracial neighborhood and to havetheir children attend multiracial schools.9 Forboth races, behavior validating these attitudes hasbeen observed. Blacks and whites who have attend-ed multiracial schools more frequently have child-ren who attend multiracial schools, live in multira-cial neighborhoods, and have close white or blackfriends than those who have attended segregatedschools.1° However, the most important result is

that non-discriminatory whites will not placebarriers before minorities and inhibit their progressin all facets of American life.

The Goal of MultiracialismThe development of multiracial schools, a

national policy and national law, is an Americanobjective. But we cannot have a conflictfreemultiracial society unless two prerequisites aremet. Minority group people must have an equalopportunity to acquire skills that will enable themto compete successfully with members of thedominant group; attitudes that foster multiracialinteractions must also be developed. The fulfill-

ment of both these prerequisites can be greatlyfacilitated by the schools. Segregation has prevent-ed either from being fully accomplished, and weare not optimistic about the future. The federalgovernment has not yet assumed as active a role asit should in attempting to eliminate segregation.The President refuses to respond to the increasingsegregation of large northern cities and restrictivehousing pi.actices in the suburbs.

We believe that a multiracial society is

something more than an optimistic goal which thenation might move toward gradually over genera-tions. The Kerner Commission warned in 1968 ofthe development of two societies, one white, oneblack. During the three intervening years we feelthat divisions have increased. The situation is

becoming critical, and social scientists, to respondeffectively to this crisis, must abandon ivory towerneutrality. Colleges of education, for example,must begin to develop teacher training programs toprevent white youngsters from responding topeople in racially motivated ways, and mustretrain teachers for newly developed multiracialsystems.

In speaking for the elimination of raciallyidentifiable schools within the boundaries of theurban units, we do not blind ourselves to the factthat this is only the first step toward the eventualgoal. This must be followed by cutting the whitesuburban noose that is strangling the cities. Amultiracial school system is but one step towardelininating the inequities and creating a healthysociety.

FOOTNOTES

1. Berry v. School District of the City of BentonHarbor, Civ. No. 9 (W, D. Mich., Oral Op. Feb. 17,1971); Northcross v. City of Memphis Board ofEducation (W. D. Tenn. 1970); Bradley v. Milliken,Civ. Act. No. 35257 (E.D. Mich. June 16, 1971).

2. Robert W. Hooker, "Displacement of Black Teach-ers in the Eleven Southern States," Race RelationsInformation Center, Nashville, Tennessee (De-cember 1970) p. 1.

3. Cf., for example, Swann v. Charlotte-MecklenburgBd. of Education, 91 S.Ct. 1267, 1277; Hobson v.Hansen, 269 F.Supp. 401 (D.D.C. 1967), and Orderof May 25, 1971, F.Supp. (D.D.C.),

4. Robert J. Havighurst, "Education in MetropolitanAreas" (January 1967).

5. American Friends Service Committee; Delta Min-istry of the National Council of Churches; Lawyers'

Committee for Civil Rights Under Law; LawyersConstitutional Defense Committee; NAACP LegalDefense and Educational Fund, Inc.; and Washing-ton Research Project, The Status of School Desegre-gation in the South, 1970, p. 31.

6. See Berry [note 1].7. Findlay, et. al., "Ability Grouping: 1970," Report

Prepared for HEW.

8. James McPartland, "The relative influence of schooldesegregation and of classroom desegregation on theacademic achievement of ninth grade Negro chil-dren," Interim Report (September 1967).

9. U.S. Commission on Civil Rights, Racial Isolation inthe Public Schools, Vol. 1 (1967).

10, Meyer Weinberg, "Desegregation research: An ap-praisal," Phi Delta Kappan (1968).

27 27

Chicano Education: In Swann's Way?by Alan

Although Swann and its companion casesaddress themselves to the desegregation of blackand white schools in the South, they provide somebasis for an attack on a whole range of educationalpractices in the Southwest, which could have aprofound effect on the quality of Chicano educa-tion. This challenge would be based not on the useof the particular remedies prescribed by theSupreme Court, but on the decision's implicationthat the constitutional principle of racial equalityis invested with new vigor and strength for brownas well as black. This article will first discuss thequestion of how Swann will affect the desegrega-tion of Chicano school children, and then specu-late on Swann's use as a constitutional basis fureffecting curriculum and methodology changes inChicano education.

I. DesegregationChicanos themselves are ambivalent about

the desirability and value of an integrated educa-tion) While there is a tendency today to thinkthat Chicanos, wherever located, share the sameeducational goals, this is not the case. In ruralareas and small urban centers, integration is soughtbecause segregated education invariably meansinferior facilities for Chicano schools, as well aspsychological feelings of second-class citizenship.In large urban areas, such as Los Angeles (with 1.2million Chicanos), Denver, and San Francisco,however, there is little desire for integration. Theleaders of these "barrios"2 resist education poli-cies which undermine community control ofschools and retard the enactment of bilingual/bi-cultural education. I n the May 1971 Denver schoolboard election, for example, the La Raza Unida

Exelrod

Party (a militant Denver Mexican-American politi-cal action group) opposed busing despite a courtorder to integrate.3 In San Francisco, shortly afterSwann was announced, a federal district judgeordered the submission of desegregation plans on ablack/white basis.4 From conversations with lead-ers of the largely Chicano Mission District, it isapparent they do not want to be a part of thatplan because the community is achieving a signifi-cant voice in its schools for the first time and fearsa reduction in the existing bilingual/biculturalprograms.5 In analyzing Swann, therefore, it must

be understood that many urban Chicano commun-ities will abandon their neighborhood schools onlyif desegregation is accompanied by bilingualismand biculturalism.

Where the Mexican-American communitydoes seek desegregation, Swann offers real bene-fits. Unlike the South, where segregation of blackswas accomplished by state legislative enactment,segregation of Chicanos in the Southwest (and theNorth where many Chicanos have migrated) hascome about on a district basis by subtle, as well asblatant, means.*

Because one problem in Chicano desegrega-tion suits is proving discriminatory actions, Swannhelps by broadening the definition of segregation.The Court made specific reference to school siteselection policies, recognizing that "choices in thisrespect have been used as a potent weapon forcreating or maintaining a state-segregated schoolsystem." Throughout the Southwest, schoolboards have built schools which serve single ethnicgroup neighborhoods, rather than fostering inte-gration.6 Often "colonias"7 were built outside thecity limits of towns in order to avoid building

*The proof and law to challenge the segregation of Chicanos is the same as that used in any Northernschool segregation suit. [See Dimond article, p. 17] . Ironically, then, a suit challenging Chicano segregationin Texas, for example, will be a "Northern" school case in the "South." And there can no longer be anydoubt that segregation of Chicanos, as with discrimination against any racial and ethnic group on the basisof national origin, is suspect and subject to close judicial scrutiny under the 14th amendment. See, e.g.Korematsu v. United States, 323 U.S. 214, 216 (1944); Hernandez v. Texas, 347 U.S. 475; Cisneros v.Corpus Christi Independent School District, 324 F. Supp. 599, 606 (S. D. Tex. 1970); Alvarado v. El PasoIndependent School District (W. D. Tex. 1971), rev'd (5th Cir., June 16, 1971) (No. 71-1555): "This [is a]class action by 14 Mexican-American parents on behalf of themselves and children, and all other childrenand parents in the El Paso, Texas Independent School District.... In our view the complaint clearly statesa cause of action."

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codes and other city regulations.8 The schooldistrict would build a school to serve the "colo-nia" and thereby insure that most Chicanos wouldattend primarily Chicano elementary schools.

Swann holds that such a pattern of school con-struction constitutes "a factor of great weight" inidentifying legally imposed school segregation.From the strong language in Chief Justice Burger'sopinion, it is likely that proof of a discriminatorypattern in school construction would itself beenough to establish the maintenance of a dualschool system and hence, a violation of equalprotection.

The Court also broadened the definition ofsegregation by placing on the school district theburden of explaining one-race schools. "Schools allor predominately of one race in a district of mixedpopulation will require dose scrutiny to determinethat school assignments are not part of state-en-forced segregation." In other equal protectioncases, application of the "close scrutiny" testrequires the state to provide compelling reasons tojustify its policies.9 In the Chicano context itmeans that school districts must carry the burdenof persuasion and explain why ethnically isolatedschools exist within their district. Many South-western school districts will not be able to meetthis burden.

Residential Segregation as ProofThe Chief Justice also implied in Swann that

acts of governmental discrimination by personsother than school officials, which result in schoolsegregation, would be relevant in proving theexistence of a dual school system. Near the end ofthe decision he suggests that attempts by non-school governmental officials to "fix or alterdemographic patterns to affect the racial compo-sition of the schools" would require federal courtintervention in school student assignment. Thecritical issue for the Chicano community is

whether "other governmental action" includesdiscrimination in housing caused by state action.

Throughout the Southwest, attempts to pro-cure public housing for Chicanos in middle-classareas have been stymied through various forms ofgovernmental action. In Union City, California, areferendum changed a zoning ordinance to prevent

Alan Exelrod, a staff attorney with the MexicanAmerican Legal Defense and Educational Fund,has litigated Chicano school problems throughoutthe Southwest.

29c,

the construction of low cost housing.1° In SanAntonio the City Council vetoed a public housingprogram it had earlier approved, which would haveprovided single family residences in middle-classneighborhoods primarily for poor Chicanos."Gautreaux v. Chicago Housing Authority' 2 revealsthe federal government policy of constructing lowcost housing in barrios and ghettos. These actionshave resulted in segregated neighborhoods and,consequently, segregated schools. The Chief Jus-tice's statement would be without significanceunless it is interpreted to include these types ofgovernmental practices. In proving a case of school

segregation, data on housing discrimination, atleast by state, would be relevant and should afforda basis for relief. The question of housing dis-crimination and residential patterns generallyraises the issue of whether all school segregation isunconstitutional. Although Chicanos are more ableto escape the barrio than blacks the ghetto, Chi-canos continue to be concentrated in identifiableareas of cities.' 3

Unequal Resource AllocationEven a holding that such school segregation

is not "state-imposed" does not necessarily fore-close finding a 14th amendment violation and evenrequiring integration in many Southwestern com-munities. In Keyes, the Denver school case, thecourt found that such isolation in the schools wasnot state-imposed. But relying on differences inpupil achievement, per pupil expenditures, andteacher abilities, the court held that students inminority schools were not receiving an equaleducational opportunity. Evidence was presentedthat integration was necessary to end the denial ofequal educational opportunity, and an order wasentered employing the equitable remedies outlinedby Swann. Although the 10th circuit reversed thatpart of the remedy, the possibility of such remedywill remain until other circuits and finally theSupreme Court speak. Whether Chicanos want theremedy of integration for such denials will dependon the circumstances of each particular communi-ty.

Although the issues discussed in the previousparagraphs apply to future litigation, the courtsare faced with the immediate remedial problem ofwhat the contents of a desegregation plan shouldbe when more than one minority is involved. Inmany Southwestern cities there are significant

29

numbers of blacks, Chicanos, and in some places,Asians. One important question is whether placingChicanos and blacks into schools without Anglosserves to create a unitary school district. Anotheris the extent to which a desegregation plan musttake account of the differing educational needs ofnon-English speaking children.

Does Black + Brown = Integration?The Houston Independent School District is

currently facing the first problem in a fourteenyear old desegregation suit, Ross v. Eckels.I4 At notime during the suit have Chicanos (whose barriosadjoin the black ghetto) been recognized as a

separate, identifiable group even though theycomprise fifteen percent of the school population,their native language is Spanish, and they havebeen racially isolated. Because Chicanos have beenconsidered white throughout the litigation, thepairing of "black" and "white" schools means inpractice, that the two minorities will be desegre-gated with each other. Recently, an attempt byChicano plaintiffs to intervene was denied. Thisdenial seems clearly wrong. The placing of twohistorically identifiable, disadvantaged groupstogether cannot satisfy equal protection. Thepurposes of desegregation are to improve minorityschools, eliminate the psychological stigmaattached to segregation, and remove the vestiges ofthe dominant Anglo's containment of minoritychildren in separate schools. The continuation ofminority black and brown schools does not servethese purposes. In Alvarado v. El Paso Indepen-dent School District, the Fifth Circuit, by holdingthat Chicanos were a recognizable minority for the14th amendment discrimination and segregationclaims, concurred in this view. Cisneros v. CorpusChristi Independent School District held, similarly,that "Mexican-American students are an identifi-able ethnic minority class sufficient to bring themwithin the protection of Brown," and "placingNegroes and Mexican-Americans in the same

school does not achieve a unitary system as

contemplated by law." [Cites in note, p. 25] . Andeven more recently, an Austin, Texas districtcourt, while finding no de jure segregation ofChicanos, ordered the parties to submit a tri-ethnicintegration plan: "There will be little educationalvalue in a plan which merely integrates onesocially and economically disadvantaged group,the blacks, with another, the Mexican-Amer-icans." 15

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Preserving Cultural IdentitySan Francisco Unified School District is

currently facing the second problem, preservingcultural identity in integrated schools. In SanFrancisco, the district court was only presentedevidence of the racial isolation of blacks, althoughall desegregation plans took into account the city'smu ltiethnicity. The danger is that the Chicano andChinese minorities will be so dispersed they willlose or fail to receive needed educational pro-grams. The solution is to view identifiable minor-ity groupsblack, brown, yellow and redasseparate and distinct classes for purposes of equalprotection analysis and equitable relief.

Integration should be accompanied by cur-riculum modifications, teacher re-training and

other programs which recognize the particulareducational needs of these minority groups. Ifcourts find that Chicanos do not comprise a largeenough percentage of the school district popula-tion to warrant district-wide substar 'lye educa-tional program changes, integration plans shouldcontain schools with large enough proportions ofChicanos to justify special programs which meetChicano educational needs. This solution recog-nizes that integration is but one aspect of equaleducational opportunity. In multiethnic communi-ties, flexibility is necessary to insure that the rightsof all minorities are protected.

In sum, Swann offers the Chicano newmeans of proving discrimination and, of course,powerful remedies to correct it. Because manycommunities are often multiracial and multiethnic,Swann creates new challenges to the courts toinsure that desegregation takes into account theneeds of all groups.

II. Equal Educational OpportunityOur past methods of educating chil-

dren suffering linguistic handicaps inEnglish have clearly been ineffective. Thechief reasons for this seem to be that wehave not taken advantage of the child'sbest instrument of learninghis mothertongueand that we have failed to createin him a sense of dignity and confidence.In a word, we have not put first thingsfirst: We have thought it more importantfrom the outset to teach the non-Englishspeaking child English rather than toeducate him. We have in short been moreinterested in assimilating than edu-cating.' 6

Swann offers Chicanos an opportunity tocorrect this situation through the constitutionalprinciple of "equality of educational opportunity."No one expected this principle to die a suddendeath in the Swann group of desegregation cases,but weak opinions would certainly have minimizedjudicial scrutiny of the "undereducation" that istaking place in Southwestern schools.

The optimism about "equal educationalopportunity" stemming from Swann rests on fourbases: the specific references to Brown v. Board ofEducation in the opinion; the court's remarksrequiring equality of facilities; the powerfulremedies given to federal courts to correct desegre-gation; and the statement in the final paragraphsof the opinion that the federal court's task wasonly completed whwhen "the affirmative duty todesegregate has been accomplished and racial dis-crimination through official action is eliminatedfrom the [school] system."

Equal educational opportunity for Chicanosmeans the implementation of programs compatiblewith their language and cultural needs. Often thiswill mean bilingual/bicultural education. Manypersons have a misconception of bilingual educa-tion, and confuse English as a Second Language(ESL) programs with it. ESL is designed solely toteach English to non-English speaking children andis not meant to preserve a culture, improveknowledge of the mother tongue, or help English-speaking students to learn the community's otherlanguage. True bilingual education includes allthese goals. As the Draft Guidelines for theBilingual Education Program state: "Bilingualeducation is instruction in two languages and theuse of those two languages as mediums of instruc-tion for any part of or all of the curriculum. Studyof the history and culture associated with a

student's mother tongue is considered an integralpart of bilingual education." With this definitionin mind, the question is, what legal theory willsupport it?

Second Class SchoolingThe Chicano child brings to the school a

different culture and language than that of theAnglo. When he comes to the school he is oftenforbidden to speak his native language and hiscultural traditions are ignored. Often the school heattends is inferior to the school just down the roadattended primarily by Anglos. He sees few Chicanoteachers and fewer Chicano administrators. His

academic life is tainted with the prejudice and theindifference of Anglo teachers who see littleprospect for his academic success. He sees hisbrothers and si.,ters shunted into mentally retardedclasses even though these same siblings care for thewhole family when the parents are working. Theend result is alienation from school, and eventualdropping out, a process completed in the Chi-cano's early teens. The high dropout rate reflectsthe psychological damage done to the child by theschool.

Agenda for ChangeThe Chicano child requires a program com-

patible with his needs and experiences. Researchsuggests that a method of instruction combiningSpanish and English is the best way to teachChicanos while preserving essential parts of theirculture. 18 The curriculum should contain Chicanocontributions to history, art, and literature. Noneof this can be accomplished without a teachingstaff that is sympathetic to a multiethnic ap-proach. The goal of this agenda for change is todevelop Chicano students able to recognize theirown worth and to succeed in schooi.19 ManyChicano leaders, especially in urban areas withlarge barrios,advocate Chicano community controlof identifiably Chicano schools as the most poli-tically feasible and best way to effect the neededchange.

The Law in BriefTranslated into legal terms, the Fourteenth

Amendment argument proceeds as follows. Pres-ently the schools are treating the Anglo and theChicano children identically. The method ofinstruction and the curriculum are not geared tosatisfy Chicano needs. Achievement test results,dropout rates, the large percentage of Chicanos inclasses for the mentally retarded, the lack ofChicano teachers and administrators, all point tothis fact. The schools are attempting to changeChicano children rather than accepting the factthat Chicanos bring to school a different back-ground than Anglos. This sameness of treatmentbetween intrinsically different groups, to theeducational detriment of one, cannot be justified.It can satisfy neither the compelling interest testnor the rational relationship test used to determineviolations of equal protection.

This article is too brief to include a thoroughanalysis of the applicable case law. Much of whathas been said goes beyond what any court has

31 31

ordered. However, there is precedent for judicialanalysis of methodology and curriculum in Hob-son v. Hansen," Keyes, and for compensatoryeducation, United States v. Jefferson CountyBoard of Education.21 In addition, the HEWOffice of Civil Rights has issued a Memorandumregulation which requires school districts to makeprovisions to insure that non-English speakingchildren participate fully in the school program.Currently, new regulations are being discussed thatwill state in detail the obligations of schooldistricts in regard to bilingualism.

Needless to say, many issues are not con-sidered in this article: To what extent must Anglosparticipate in a bilingual program? Does theconstitutional right to a bilingual program dependon the strength with which the Chicano com-munity in a particular school district has held ontotheir language and culture? Are there manageablejudicial standards which can be developed togovern this problem?

Bilingual/bicultural education is a reality inseveral school districts in this country- EdgewoodIndependent in San Antonio, United Consolidated

outside of Laredo, and Dade County, Florida.22Some of these districts have seen bilingual educa-tion as their obligation and pay for it out of localrevenue sources. Most, however, rely cm moneyfrom the Bilingual Education Act [20 U.S.C.§880], which supplies funds only for pilot pro-grams. A constitutional requirement of bilingualeducation will require that local school districtsshare with the federal government responsibilityfor the development and implementation ofschools for all our children.

This article has attempted to highlight someof the educational problems facing Chicanos in theSouthwest. In the final analysis, the problemcenters around both a valid constitutional defini-tion of equal educational opportunity and reformof the schools. Desegregation, clearly, is an impor-tant aspect of equal educational opportunity. Butfor the Chicano, because of his unique educationalbackground, linguistically and culturally, it is notthe only solution. For the Chicano, desegregationis the superstructure of the building of theprinciple of. equal educational opportunity; bi-lingualism is its foundation.

FOOTNOTES

1. These observations are based on several years exper-ience litigating educational problems for variousChicano communities throughout the Southwest.

2. Spanish noun meaning "neighborhood" or "ghetto."

3, Keyes v. School District Number One, 313 F. Supp.90 (D. Colo. 1970), aff'd in part, rev'd in part, F,2d (10th Cir. 1971), The district court recognizedthat-Chicanos opposed extensive moving of childrento achieve integration.

4, Johnson v. San Francisco Unified School District,No., C-70-1331 SAW (N. D, Cal. 1970).

5. The Superintendent of Schools proposed a cutbackfor these programs after a court order was entered,This reaction, of course, is not necessarily a responseto desegregation and need not be a part of anydesegregation plan. Nor do many "neighborhood"schools provide Chicanos either a voice or a biculturaland bilingual education.

6. See Cisneros v, Corpus Christi Independent SchoolDistrict, 324 F. Supp, 599 (S, D, Tex, 1970); Perez v.Sonora Independent School District, No. CA 6-224(N,D, Tex. 1970); Keyes v. School District NumberOne, Denver, Colorado, 313 F. Supp. 61, 69 (D.Colo. 1970).

7. Spanish noun meaning a housing subdivision gener-ally in the outskirts of town.

8. See generally Grebler, Moore, & Guzman, TheMexican American People, p. 273 (The Free Press,N,Y,).

9. E.g., Harper v. Virginia State Bd. Of Elections, 383U, S. 663, 670 (1966); Kramer v. Union Free SchoolDistrict No. 15, 395 U.S. 621, 628 (1969).

10. SASSO v. City of Union City, 424 F. 2d 291 (9thCir. 1970). After protracted litigation, the suit wasfinally settled and some low cost housing con-structed.

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11. San Antonio Evening News, Oct, 9, 1969, p..1.12, 296 F. Supp, 907 (N,D, III, 1969).13. See,e.g., Grebler, et al., note 8, p, 271 et. seq.

Although Swann in conclusion suggests that a districtneed be "unitary" at only one point in time, theCourt's discussion of school construction suggeststhat close judicial scrutiny of all school segregationwill continue to determine whether it is "state-imposed." [See Dimond Article, p. 17].

14. The most recent decision is reported at 434 F, 2d1140 (5th Cir, 1970).

15. U.S. v, Texas Education Agency, No. A-70-CA-80,Memo. Opinion and Order (W. D. Tex. June 20,1971),

16. Anderson and Boyer, Bilingual Schooling in theUnited States, Vol. I, p. 147, Southwest EducationalDevelopment Laboratory, Austin, Texas (1970)(available through U.S. Gov't. Printing Office).

17. Draft Guidelines for the Bilingual Education Programunder the Bilingual Educational Act.

18. H,J. Johnson and W. Hernandez, Educating theMexican American, Judson Press (1970).

19. Sanchez, "History, Culture and Education," in LaRaza-Forgotten Americans (1966).

20. 269 F, Supp. 401 (D. D, C. 1967), aff'd sub nom.Smuck v. Hansen, 408 F, 2d 836 (5th Cir. 1966).

21. 372 F, 2d 836 (5th Cir, 1966) But cf, McInnis v.Shapiro, 293 F, Supp. 327, aff'd sub nom., McInnisv. Ogilvie, 394 U.S. 322 (1969). See also, Comment,49 Tex, L. R, 337 (1971).

22, Massachusetts is considering a statute which wouldmandate bilingual programs for school districts whichhave 20 or more students whose native language isnot English. Copies of this bilingual education statuteare available at the center for Law and Education.

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NOTES AND COMMENTARYThis section of Inequality in Education featuresreports on research, litigation, government action,and legislation concerning education and the law.Readers are invited to suggest or submit materialfor inclusion in this section.

SPECIALEDUCATION

LOSE A BATTLE, WIN THE WAR: BOSTONRETARDED CHILDREN WIN HEARING RIGHTBEFORE EXCLUSION FROM SPECIAL CLASSES

Flaherty v. Connors, 319 F. Supp. 1284 ( D. Mass.1970).

In this suit, a retarded child sought a

temporary injunction ordering his readmission to aspecial school, and a permanent injunction onbehalf of all other retarded children similarlyexcluded from school. The District Court ruledthat the case presented an individual complaintand could not be prosecuted as a class action;intimated that the plaintiff had failed to exhausthis state administrative remedies; found that hehad not profited from two years attendance in thespecial school, because he had become progressive-ly more disruptive over that period; and foundthat there had been no showing of irreparableharm. Accordingly, it denied the application for apreliminary injunction.

The nub of the complaint, however, was adenial of due process: plaintiff's suspension fromschool without an adequate hearing. The DistrictCourt suggested that the plaintiff had waived thehearing offered by the defendant Boston schoolauthorities, but that he was free to follow thehearing procedure provided by Massachusetts lawand regulations of the Boston School Committee.

Negotiations to provide the plaintiff a satis-factory school program, and to promulgate satis-factory hearing procedures, continued until June21, 1971, when the plaintiff agreed to a dismissalof his law suit for two reasons:

33

Plaintiff enrolled in a satisfactory schoolprogram, and was accorded a full hearing beforethe Assistant Superintendent; and

The Boston School Committee promulgat-ed a regulation affording students and their par-ents the right to a hearing prior to exclusion fromspecial classes. The hearing includes the right tonotice, to call witnesses, to cross-examine witness-es, and to appear with counsel.

The plaintiff is represented by Michael Alt-man of the Boston Legal Assistance Project, 474Blue Hill Avenue, Roxbury, Massachusetts 02121.

THREE JUDGE COURT APPROVES FULLHEARING BEFORE CHANGE IN MENTALRETARDATION EDUCATIONAL STATUS

Pennsylvania Association for Retarded Children v.Commonwealth of Pennsylvania, Civ. No. 71-42,(E. D. Pa. June 18, 1971).

This complaint on behali' of all Pennsylvaniamentally retarded children attempts tt., secure (1) afull hearing before exclusion from school orassignment to special education, (2) mentally re-tarded children's right to some publicly supportededucation, and (3) compensatory education forthe period of wrongful exclusion of any mentallyretarded child from any educational opportunity.Because a vindication of these rights would requirethat several state-wide statutes be declared uncons-titutional, the convening of a three-judge courtwas necessary.

District Judge Masterson found that thequestions raised by the complaint were not insub-stantial and convened a three-judge court. Pursu-ant to stipulation of the parties, the three-judgecourt approved and ordered a detailed plan whichinsured that no Pennsylvania child aged 51/2 to 21,who is thought to be mentally retarded by anyschool official or the parent, would be subjectedto a change in educational status (or denied anyeducational assignment) before being affordednotice and the opportunity for a full due processhearing at which the local school district, not theparent, shall bear the burden of proof.

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Trial before the three-judge court on allother issues raised by the complaint will proceedin August. Copies of the plan are available fromthe Center for Law and Education. Plaintiffs arerepresented by Thomas Gilhool, Room 1300,1 N. 13th Street, Philadelphia, Pennsylvania, andPaul Dimond of the Center for Law and Educa-tion.

STUDENT RIGHTS

NINTH CIRCUIT UPHOLDS LIMITS ONSTUDENT HAIR (WHILE BERKELEY POLICELET THEIRS GROW WILD)

King v. Saddleback Junior College District, No.26,452; Olff v. East Side Union High SchoolDistrict, No. 25,132,__F. 2d__(9th Cir. June 25,1971).

The same week that the Berkeley CityCouncil voted to allow policemen to wear longhair and beards, the United States Court ofAppeals for the Ninth Circuit upheld the legalityof student dreis codes in two nearby Californiacities which deny students the same choice. Thisruling overturned two lower federal courtdecisions which had prevented the enforcement ofthe regulations.

Although finding that "in neither case wasthere any evidence that length of hair led to anydisruption among students," Circuit Judge Traskdefined the issue as :leing "the right of schoolauthorities to develop a code of dress and conductbest conducive to the fulfillment of their respon-sibility to educate ...without unconstitutionallyinfringing upon the rights of those who must liveunder it." The court found no infringement uponfirst amendment freedoms analogous to theSupreme Court's finding in Tinker v. Des MoinesCommunity School District, 393 U.S. 503 (1969);nor, distinguishing Griswold v. Connecticut, 381U.S. 479 (1965), as a "marital privacy" case, anyinvasion of the "right to be left alone;" nor adenial of equal protection; nor, because the codeswere part of the "regulations necessary for the dayto day operation of schools, classes, and thegeneral educational processes," any denial of dueprocess.

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Relying on affidavits by school officials, andupon their "professional experience that extremehair lengths of male students interferes with theeducational process," the court concluded: "Weare satisfied that the school authorities have actedwith consideration for the rights and feeling oftheir students and have enacted their codes,including the ones in question here, in the bestinterests of the educational process. A courtmight disagree with their professional judgment,but it should not take over the operation of theirschools. Epperson v. Arkansas, 393 U.S. 97, 104(1968)."

Contrary decisions include: Crews v. Cloncs,432 F. 2d 1259 (7th Cir. 1970); Griffin v. Tatum,425 F. 2d 201 (5th Cir. 1970) (partially invalid);Richards v. Thurston, 424 F. 2d 1281 (1st Cir.1970); Breen v. Kahl, 419 F. 2d 1034 (7th Cir.1969), cert. denied, 398 U.S. 937 (1970); andCrossen v. Fatsi, 309 F. Supp. 114 (D. Conn.1970), (unconstitutionally vague).

DRUGS

N.W.R.O. ASKS F.D.A. TO EXAMINE RITALIN

N.W.R.O. has petitioned the F.D.A. to re-consider and repeal its rulings approving R italin assafe and effective for use in the treatment of"minimal brain dysfunction" ("hyperkinetic be-havior disorders"). The petition charges thatRita lin is misbranded and, on the basis of newevidence of its potential for abuse and its possiblelinkage to a blood vessel disorder, unsafe.

The petition describes (1) the extreme diffi-culty of accurately defining and diagnosing"hyperactivity;" (2) the likelihood that environ-mental deprivations create similar symptomswhose appropriate treatment does not includedrugs; (3) the potential for dependence and ad-verse side effects from long-term use; (4) themushrooming and inappropriate use of Ritalin,pressured by school officials looking for a quickcure for their own shortcomings and accommoda-ted by doctors too quick to diagnose and pre-scribe; (5) the false, misleading and over-broadadvertising of Ritalin by its manufacturer; and(6) given such circumstances, the inevitable failureto regulate Ritalin's use to enable parents anddoctors to make informed choices to use the drug

appropriately and safely. The attack is broad andseeks to eliminate all use of R italin on childrenwith "minimal brain disorder" or "hyperkinesis"(or whatever other label is placed on the ill-defined"syndrome"). The only exception would be forinvestigational use under strict controls similar tothose applied to methadone maintenance pro-grams.

The attack raises issues which are importantand subject to a variety of views. [See Inequalityin Education, Number Eight]. Hopefully,N.W.R.O.'s petition will permit a thorough andenlightened review of "hyperactivity" in schoolchildren and amphetamine treatment for it.

N.W.R.O. is represented by The NationalLegal Program on Health Problems of the Poor,2477 Law Building, University of California, 405Hilgard Avenue, Los Angeles, California, 90024.

TITLE I

TITLE I CLOTHING GRANTS FOUNDTO IMPROVE STUDENT SELF-IMAGE AND

SCHOOL ATTENDANCE

For some time proponents of the use ofTitle I money for clothing have been saying thatsufficient quantities improve children's self-imageand school attendance. This assertion is beginningto receive substantiation.

Last year, responding to the demands of theRhode Island Fair Welfare Rights Organization(NWRO), Title I officials in Providence instituted a$96,000 Supplementary Clothing Grant (SCG)program. Providence is one of the first schooldistricts in the country to use substantial amountsof Title I money for clothing. A recent studyevaluating the results of the program give evidencethat it is indeed fulfilling its objectives of improv-ing children's self-image.

A study of the Providence Clothing GrantProgram, conducted by members of the BrownUniversity Sociology Department in: cooperationwith Title I parents, explored the attitudes ofchildren and parents receiving the clothing grantsunder the Providence Title I program. The Brownsociologists reported that 96% of the children feltthat poorly-dressed children feel differently aboutgoing to school than well-dressed children ("inferi-or," "made fun of," or "left out"), and 88% felt

that poorly-dressed children were treated differ-ently by other children. A smaller percentage(63%) felt that teachers treated them differentlybecause they were poorly-dressed, but 72% saidthat poorly-dressed children were likely to makelower grades than well-dressed children. TheBrown study also reported that an overwhelmingmajority of children (84%) sometimes felt like notgoing to school because their clothes were poor,and 74% have actually stayed home for thisreason.

The Brown study also found that parents'perceptions were similar to their children's. 78% ofthe parents felt that poorly-dressed children weretreated differently by other children, and all feltthat teachers treated poorly-dressed students dif-ferently. (Some parents also felt that a fewteachers gave special attention to poorer children.)70% of the parents reported that their childrenwere sometimes reluctant to attend school or takepart in school activities because of poor clothing.Although agreeing that clothing grants were help-ful, all felt that the $48.00 per child allowanceneeded to be increased substantially "so that agreater positive effect on the children might bemade." The Brown study concludes that Title Iclothing grants should be continued, but with anincreased allowance.

Preliminary results of another study of therelationship between a clothing program and ab-sences have been released. The results show thatrecipients of clothing grants reduced their ab-sences, compared to a matched control group whichdid not receive grants. Because some recipientsalso received other Title I services, some of whichwere designed to improve attendance, the contri-bution of clothing grants to absence reductioncannot be separated from the contribution ofother Title I programs. Inequality In Educationexpects to publish complete findings of this studywhen the final report is released.

These studies should be useful evidence forOther lawyers and community groups seekingclothing grants out of Title I funds. What was oncean unverified assertion has become accepted asfact in Providence and the superintendent ofschools has agreed with Rhode Island Fair Welfareto extend the Title I Supplementary ClothingGrant Program for another year.

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Bob Cohen

35