Why School Desegregation Cases Seem to Last Forever



One of our readers asked a good question about a story earlier this week about the settlement of a 1965 school desegregation lawsuit in Fayette County, Shelby County's sparsely populated eastern neighbor.

"Why did it take 47 years?"

I wish I knew. I tried unsuccessfully to reach U.S. Attorney Edward L. Stanton, III in Memphis and Assistant Attorney General Thomas E. Perez at the Justice Department in Washington and Mitchell Rivard in the communications office of the Justice Department. Stanton and Perez were quoted in the press release calling the Fayette County case "a significant landmark" in desegregation and enforcement of the 1964 Civil Rights Act in school districts "a top priority" of the feds.

So important that it was announced in a handout that nobody was available to discuss. But that is another story for another day.

The Fayette County settlement is interesting for a couple of reasons. Its proximity makes it a potential flight option for unhappy residents of Memphis and Shelby County. And the settlement (consent order, in legal language) requires the district to implement a "controlled choice program" to racially rebalance schools. Carrots and sticks, but no busing.

And the timing? Mere coincidence?

The rebalancing standard is a racial ratio within 15 percent of the ratio of black and white students in the county school system as a whole. Readers may remember seeing this before in 2007 when then-U.S. District Judge Bernice Donald ordered it (with some allowances) for the Shelby County School System which she refused to release from the grip of the federal court. She was overturned by the Sixth Circuit Court of Appeals in 2009 in a 2-1 decision, and in 2011 she was elevated to the appeals court herself.

Depending on what happens the rest of this year with the Shelby County Commission suit on municipal schools, maybe she will get a Shelby County do-over.

It's not like judges are not human, not subject to political pressure, don't get it wrong sometimes, and don't change their minds. There is plenty of evidence of all of those things in the court records of school desegregation in Memphis and Shelby County.

Court-ordered busing in the Memphis case in 1972 was upheld 2-1 by the appeals court, but history would show that it was dissenter Paul Weick who got it right: "The burden of eliminating all the ills of society should not be placed on public school systems and innocent school children."

Donald was openly critical of herself and "the court" in her 2007 ruling. She wrote: "The court's failure to adopt clear and unequivocal guidelines for achievement of the court's goals is in large part responsible for the fact that the county is seeking unitary status some 44 years after this suit was first filed, at a time when the county system is in some respects more racially polarized than in the distant past."

But her order for a "special master" to oversee school-by-school rebalancing, scary as it sounded to some people, never came to be. She was overturned on appeal: "Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors."

As in Memphis in 1972, there was a powerful dissent to the Shelby County case (Robinson v. Shelby County Board of Education) in 2009. In light of the pending federal lawsuit on the constitutionality of municipal schools, it is worth quoting at some length: "Nothing — not the agreement of the parties jointly to seek dissolution of the desegregation decree, not the number of years that this case has been pending and the general progress in race relations nationwide that has occurred in that time, and not the eagerness of the courts or school boards to restore local control over community schools — can substitute for evidence showing the Board's compliance with the desegregation decree. The evidence in fact reveals that among the forty-four schools for which the Board has data, two thirds of them are not in compliance with the flexible benchmark set forth by the district court for measuring racial balance . . .  Because the parties have not carried their burden of showing that the racial disparities that continue to plague the County's schools are not the vestiges of past unlawful discrimination, I would affirm the district court's judgment."

The Fayette County settlement (the Justice Department in Washington has domain over all cases involving enforcement of the Civil Rights Act of 1964 in schools) suggests that the plus-or-minus 15% standard could be back in play, along with "controlled choice programs."

Attorneys for the Shelby County Commission argue that muncipal schools would amount to segregation, or resegregation.

You don't have to read through a pile of legal briefs and judicial rulings to get some perspective on this. You just have to look at the brief history of Southwind High School.

It was built in 2006 and opened in 2007 after Shelby County built and opened Arlington High School in northeastern Shelby County. Arlington is majority white. Southwind was nearly all-black the day it opened. It is in a Memphis annexation area. A planning official once stated in an affidavit that if Memphis completed the annexation (which it has not), the black enrollment in Shelby County schools would be 7.6 percent, not 35 percent as it was in 2007.

Southwind was located on an expensive piece of land at Hacks Cross and Shelby Drive. A less expensive site was rejected. That site was farther east and would have changed the demographics of the new high school.

Southwind High was a joint project of the city and county school boards. The understanding was that it would become a city school, meaning it would not be "racially identifiable" — a key legalism — in a system that was 90 percent minority. The Memphis superintendent at the time, Carol Johnson, signed off on it, then left a year later. The annexation was delayed, giving residents of Southwind and Windyke subdivisions another six years of no Memphis property taxes. Mayor Herenton disavowed annexation, saying "mayors don't annex." The City Council disavowed it too, after agreeing on annexation boundaries that excluded certain subdivisions under development next door to Southwind High School. The Office of Planning and Development was left holding the bag. It was politics at its finest.

Bernice Donald mentioned it in her order, and the appeals court mentioned it in their reversal: "The annexations by the City of Memphis, along with voluntary housing choices made by the public, have drastically altered the racial composition of the school district. In addition, school construction and student boundaries (including the new Southwind High School) approved by the district court over the past few decades have affected the present racial unevenness. Although the district court now faults itself for “rubber-stamp[ing]” school construction and zoning requests, its role in managing and shaping the school district cannot be ignored."

Judge Donald never explained her curious ruling, self criticism, or change of direction. And to this day, no city or county mayor or school superintendent has explained the hows and whys of Southwind High.

Everybody's baby is now nobody's baby.

Long answer to a short question, but that's why school desegregation cases hang around for 45 or 47 years. And we are not done yet.

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