The Carrot or the Stick for School Desegregation Policy: Magnet Schools or Forced Busing

2. Defining School Desegregation and Its Goal

2 Defining School Desegregation and Its Goal THE COURTS have proceeded incrementally in defining school desegregation. In 1954 school desegregation was simply the elimination of discrimination. Indeed, 15 years elapsed before there was any change in that legal concept. By contrast, as early as 1964 the Office for Civil Rights (OCR) in the Department of Health, Education and Welfare (HEW) issued affirmative school desegregation guidelines for complying with the 1964 Civil Rights Act. These guidelines suggested specific yearly changes in the proportion of blacks attending white schools. OCR's measure of remaining segregation was the proportion of black students in schools with enrollments greater than 90 percent black. This is a crude criterion because it is dichotomous-an 89 percent black school is defined as desegregated and a 90 percent black school as segregated. Similarly , a school district with all of its schools at 89 percent black is a desegregated school district, and one with all of its schools at 90 percent black is a segregated school district. In 1968 in Green the Supreme Court finally joined the federal government in placing the emphasis on policy output, racial mixing , rather than on input, a policy of nondiscrimination. In 1971 this was further refined in Swann by the finding that racial balance was a starting point. Although Swann noted that racial balance was not a constitutional requirement, subsequent decisions strongly emphasized it. If the student enrollment of a school district was 50 percent black and 50 percent white, the 29 30 Defining School Desegregation schools in that district were required to be 50 percent white and 50 percent black, with marginal deviations allowed. The most common deviation approved by the courts was a plus or minus 15 percentage point variance for each school from the school district's overall racial proportions.1 Although giving the appearance of flexibility, this measure, like the OCR guidelines , is crude. A school district could make great strides in reducing racial imbalance, but if it brought imbalanced schools only to within 16 percentage points of the district's overall racial proportions, it would get no credit. A plus or minus 20 percentage point criterion has also been approved in several court decisions in the late 1980s.2 The least sensible racial balance criterion in common use is the establishment of an absolute and specific range of racial proportions -such as that all schools must be between 40 and 55 percent black. With this kind of criterion, the school board has to go back to court every few years to get the specific percentages in the range changed as the school system's racial composition changes. For example, if a court order says that all schools have to be between 35 and 65 percent minority when the district 's racial composition is 50 percent minority, the school district will have to go back to court to have the permissible percentages changed when its racial composition approaches 65 percent minority. It is physically impossible for a school system that is 66 percent minority to have all schools racially balanced at 65 percent minority. Indeed, for the range 35-65 percent, flexibility is dramatically diminished once the system's minority enrollment reaches 60 percent. Both Milwaukee and Buffalo have this problem with their court orders and as a result must go back to court periodically to change the specific percentages. They would thus be much better off if they had been given a relative range for each school, such as within 15 or 20 percentage points of the school district's racial composition, that would self-adjust to changing demographics. The courts and the school districts have spent a good deal of time working toward a definition of what constitutes a desegre- Defining School Desegregation 31 gated school and a desegregated school district and little time explicating the overall goal of school desegregation. As we shall see, however, specifying the goal of a desegregation plan leads one to a definition of what constitutes desegregation at both the school and the district levels. The primary goal ofany school desegregation plan is to eliminate the effects of past discrimination. Because there are an infinite number of such effects, however, the primary goal is more precisely stated as the elimination of the harmful effects of past discrimination. These harmful effects inhere in the stigma of de jure segregation as well as in the unequal distribution of resources that is likely...