American public schools are becoming increasingly separate and unequal, and last week's Supreme Court decision invalidating desegregation plans in Seattle and Louisville, Ky., will hasten this process.
Three-quarters of African-American and Latino schoolchildren attend predominantly minority schools, and white children are even more likely to attend racially isolated schools.
School districts across the country have adopted plans to decrease segregation, and many of these plans are now vulnerable to legal challenge.
The truth is that most of the steam had already been taken out of federal efforts to create racially integrated schools. This decision is merely an explicit and emphatic end to court-sanctioned actions to lessen racial segregation in public schools.
This decision is in effect the third step in the Supreme Court's abandonment of the apparent promise of Brown v. Board of Education.
The first step occurred in 1974, when the Supreme Court ruled that remedies for segregation could not extend beyond city boundaries to include suburban schools. With many major city school systems having minority populations of 80 percent or more, effective desegregation was greatly limited by the inability to include students from suburban schools in the remedial efforts.
The second step away from effective desegregation occurred in a series of decisions in the early 1990s. That's when the Supreme Court held that court desegregation orders should end, even when doing so would mean resegregation, once a federal judge determines that the district has complied with previous desegregation orders.
Last week's decision is the third nail in the coffin of desegregation efforts. The court held that even when local school districts actively attempt to lessen segregation, they cannot use the race of students in assigning students to schools.
To see what might be at stake within schools, consider the changes wrought by post-Brown federal intervention. In just a decade, from 1965 to 1975, the schools of the 11 former Confederate states were transformed from the most- to the least-segregated in the nation: The share of black students attending schools that were 90 percent or more nonwhite fell from nearly 100 percent to less than a quarter. Less drastic but real changes occurred in the other regions except the Northeast, where balkanized, racially disparate school districts prevented substantial desegregation.
But at the same time these momentous changes were occurring in student assignments within districts, the decisions of many families in the housing and private school markets were nullifying part of the impact on interracial contact in schools. Thus, from 1970 to 2000, as racial segregation within districts was declining in all regions, segregation between districts was increasing, undoing part of that decline. Indeed, beginning in the 1980s, interracial contact in schools stopped increasing. As a result, resegregation is a dawning reality in many communities. At least some of this increasing segregation is a direct result of the court's decisions.
A case in point is Charlotte, N.C., the countywide district that won fame for making cross-town busing work in the pursuit of racially balanced schools. After federal courts ruled that it had complied with previous court orders to desegregate and had no further obligation to bus, the school board replaced the busing plan with a school choice plan that, in effect, ensured suburban families access to their neighborhood schools. The result has been an increase in the number of racially identifiable schools.
Strikingly, Chief Justice John G. Roberts Jr.'s opinion did not even recognize achieving desegregation as a compelling government interest. Although Justice Anthony M. Kennedy and the four dissenting justices agreed that schools have a vital interest in desegregation, Justice Kennedy was the fifth vote to hold that schools cannot use race in assigning students to schools. He said that there are other alternatives, such as in drawing school attendance zones and in choosing where to build new schools, to achieve desegregation.
One promising approach being followed in districts such as Cambridge, Mass., and Wake County, N.C., is to balance schools using some nonracial criterion. Wake's approach is to design student assignments so that the numbers of free lunch recipients and low-achieving students remain below certain ceiling percentages. Because it has always been hard to keep good teachers in poor and low-performing schools, a policy such as this will equalize school quality while it also creates collateral racial diversity.
If the promise of equal educational opportunity offered by Brown v. Board of Education is to be fulfilled, therefore, the nation will now have to look to local school boards, not federal courts. Last week's decision will make their task more difficult but, one hopes, not impossible.
Erwin Chemerinsky is a professor of law and political science at Duke University. His e-mail is email@example.com. Charles Clotfelter is a professor of public policy studies, economics and law at Duke. His e-mail is firstname.lastname@example.org.