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"Excerpts from Supreme Court Briefs"

November/December 2006 issue of Poverty & Race

Over 40 friend-of-the-court briefs were filed by civil rights, civic and education groups in the “voluntary school integration cases” (Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education). These cases in the U.S. Supreme Court may determine whether local school districts can voluntarily consider race in school assignments, in order to promote school integration. We present excerpts from two of these briefs here—from a coalition of housing organizations and scholars and from the Caucus for Structural Equity. To see complete copies of these two briefs (with full citations and footnotes), go to PRRAC’s home page at www.prrac.org. For basic fact sheets on the Louisville and Seattle cases, and a manual on voluntary K-12 school integration, go to www.naacpldf.org.

Excerpt from Amicus Brief of Housing Scholars and Research and Advocacy Organizations

Excerpt from Amicus Brief of the Caucus for Structural Equity



Excerpt from Amicus Brief of Housing Scholars and Research and Advocacy Organizations

PRRAC helped to organize a Brief of Housing Scholars and Research and Advocacy Organizations, to discuss the “reciprocal relationship” between housing and school segregation, and the need for school integration programs to counter residential segregation patterns, which are heavily influenced by government policy and private discrimination.

The Housing Brief was joined by PRRAC, the Institute on Race and Poverty, the National Fair Housing Alliance, the National Low Income Housing Coalition, the Gamaliel Foundation, the National Housing Law Project, the Inclusive Communities Project, the Center for Cities and Schools at the University of California-Berkeley, the Kentucky Human Rights Commission and the Metropolitan Housing Coalition of Louisville. The brief was also joined by 31 professors of sociology, planning, law, history and other disciplines, with a shared expertise on the causes and consequences of residential segregation. The complete list of signers is on our website. The brief was drafted by Michael B. de Leeuw, Alexis Karteron and Megan K. Whyte at Fried, Frank, Harris, Shriver & Jacobson (with substantial input from Myron Orfield, Phil Tegeler, john powell and others).



Since at least the 1970s, this Court has recognized the reciprocal relationship between residential integration and school integration. Subsequent social science has confirmed this connection. Given the vital importance of meaningful racial integration for our democratic society, it is necessary to consider the links between schools and housing to assess fully a school district’s compelling interest in promoting school integration. Such an examination reveals that housing markets distorted by private discrimination and government policy are incapable of creating residential integration that would make school integration measures unnecessary, and that school integration promotes residential integration, benefiting all Americans.

Contrary to the assertion of Petitioner Parents Involved in Community Schools, today’s housing patterns are not simply products of private, free choice. Segregated residential patterns result from an array of policies and actions by public and private actors. Beginning with historical state-sponsored discrimination, such as de jure racial segregation in public housing, discriminatory public housing site selection and tenant assignment policies, and purposeful exclusion of African Americans from federal mortgage lending programs, government at all levels has indelibly formed the landscape of America’s metropolitan
areas.

In addition, discriminatory practices, both public and private, continue to mar the housing market. Real estate agents, for example, frequently steer people to different neighborhoods based on their race. Mortgage lending and insurance redlining contribute to residential segregation because lenders and insurers offer different terms and policies to minority homebuyers, and deny their applications at disproportionately high rates....

This Court best explained the strong connection between school and residential segregation in Keyes:

    [I]t is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designated “feeder” schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white. Similarly, the practice of building a school . . . to a certain size and in a certain location, “with conscious knowledge that it would be a segregated school,” has a substantial reciprocal effect on the racial composition of nearby schools. So also the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools.

400 U.S. at 201-02 (emphasis added).
As Keyes explains, racial segregation patterns in schools cannot be understood without reference to racial residential patterns. For a school district to take no action in response to coextensive school segregation and residential segregation would be to acquiesce to both—contrary to strong national policies regarding school desegregation, fair housing, and residential integration….

The compelling nature of a school district’s interest is underscored by the positive impact of school desegregation programs on residential integration. See Diana Pearce, Ctr. for Nat’l Pol’y Rev., Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns 3 (1980) (citing evidence of increased housing integration in places with metropolitan desegregation programs). During the 1970s, cities that had undergone metropolitan school desegregation experienced “markedly greater rates” of housing integration than did other cities. Pearce, supra, at 26-27. Between 1970 and 1990, residential integration occurred at twice the national average in communities with metropolitan school desegregation programs. Erica Frankenberg, The Impact of School Segregation on Residential Housing Patterns: Mobile, Alabama, and Charlotte, North Carolina, in School Resegregation: Must the South Turn Back? 164, 180 (John Charles Boger & Gary Orfield, eds., 2005). A recent study of 15 metropolitan regions explains that comprehensive school desegregation programs are strongly correlated with stable residential integration. Inst. on Race & Poverty, Minority Suburbanization, Stable Integration, and Economic Opportunity in Fifteen Metropolitan Regions (2006); see also Pearce, supra, at 51-52 (finding school desegregation supports stable, integrated communities). Concomitant with the extensive segregation revealed by the 2000 Census…, “[m]any neighborhoods that are integrated at a given time actually are in transition to a less diverse status.” Inst. on Race & Poverty, supra, at 22; see also Orfield, Metropolitan School Desegregation, supra, at 136-37. Therefore, “encouraging findings about the potential for metro-wide school integration to stabilize neighborhoods while increasing equal access to educational opportunity” are particularly important. Inst. on Race & Poverty, supra, at 27….

Integrated schools promote stable integrated neighborhoods. As this Court recognized, “The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.” Swann, 402 U.S. at 20-21. Parents frequently choose their homes based at least partly on the schools that their children will attend, and they see segregated schools as powerful signals that may discourage them from buying homes in certain neighborhoods. Frankenberg, supra, at 179; Pearce, supra, at 4. Where racially identifiable schools exist, White parents who can afford to do so frequently move to White districts on the belief that the schools in those neighborhoods will be better. Frankenberg, supra, at 179; Pearce, supra, at 9-10. By influencing where people with means choose to live, segregated schools perpetuate and exacerbate residential segregation.

Real estate agents even market homes differently based on whether schools in the district are racially identifiable. To provide legal signals about the racial composition of neighborhoods, advertisements for homes in districts with segregated schools list the names of schools, if they are predominantly White, from two to ten times more frequently than do advertisements for homes in districts with integrated schools. Orfield, Metropolitan School Desegregation, supra, at 135; Pearce, Breaking Down Barriers, at 9, 14-18. In districts with truly integrated schools, home advertisements mention schools much less often and focus instead on things like distance to offices, stores, and recreational facilities. Orfield, Metropolitan School Desegregation, supra, at 135; Pearce, supra, at 12, 14. By including White school names in advertisements, real estate agents reinforce the notion that the ability to attend segregated schools is an important—and desirable—feature of a property. Pearce, supra, at 18. (Recent testing studies actually indicate that real estate agents describe schools as “good” or “bad” as a proxy for the racial or ethnic composition of neighborhoods. See Nat’l Fair Housing Alliance, Unequal Opportunity—Perpetuating Housing Segregation in America: 2006 Fair Housing Trends Report (Apr. 5, 2006)).

In addition, among the long-term benefits of school policies promoting integration is the greater likelihood that students who have attended integrated schools will live in integrated neighborhoods later in life. The Seattle School District explicitly recognized the benefits of residential integration when it adopted its “racial tiebreak” for oversubscribed high schools. Along with improved critical thinking skills among both White and minority students, and “the socialization and citizenship advantages of racially diverse schools,” the Seattle School District identified as a compelling interest the following conclusion reached by its expert: “that ‘research...strongly shows that graduates of desegregated high schools are more likely to live in integrated communities than those who do not, and are more likely to have cross-race friendships later in life.’” Parents Involved in Cmty. Sch., 426 F.3d at 1175 (emphasis added); see also Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 Rev. Educ. Res. 531, 551-52 (1994) (reviewing studies finding students in integrated schools more likely to have lasting cross-racial relationships and concluding “interracial contact in elementary or secondary school can help blacks overcome perpetual segregation”).

These findings affirm the significant value of school desegregation efforts. Aside from their obvious impact on a single school’s racial composition, school desegregation programs also make powerful contributions to residential integration in both the short and long term, which is a worthy goal, in accordance with local and national policy….



Excerpt from Amicus Brief of the Caucus for Structural Equity

The Kirwan Institute for the Study of Race & Ethnicity, in collaboration with many of the nation’s leading scholars on the structural and institutional dynamics underlying persistent racial exclusion in the United States, submitted an Amicus Brief in support of the Seattle and Jefferson County [KY] School Boards. The brief locates the current controversy in the context of Brown v. Board of Education and its progeny. In these cases, the court identified the harm of segregation and recognized the important role school boards play in ameliorating this harm through the use of race-conscious measures. The brief argues that school boards may intervene to disrupt the processes that produce segregation and cumulative racialized disadvantage. The Brief of the Caucus for Structural Equity was drafted by Daniel Shulman at Gray, Plant, Mooty, Mooty & Bennett, with substantial input from, among others, john powell, Andrew Barlow, Ian Haney Lopez, Phil Tegeler and Andrew Grant-Thomas.

Petitioners and the Solicitor General ignore Brown’s central finding that racial segregation is inherently harmful, and instead assert that this landmark case reduces to the proposition that racial classification is inherently harmful. To that end, the Government’s lawyer argues that Brown’s command reduces to one phrase, selectively culled from Brown II: “achiev[ing] a system of determining admission to the public schools on a nonracial basis.” (Brief for the United States as Amicus Curiae Supporting Petitioner in No. 05-908, p. 6.)

While there is and will continue to be some contestation over the scope and implications of the Brown I and II decisions, it is clear that Petitioners and the Solicitor General argue for an interpretation that is far too narrow. Tellingly, these very same characterizations of Brown were offered in the 1960s and early 1970s by recalcitrant local jurisdictions that similarly sought to undermine school integration. In response to these efforts, this Court made it clear that such an overly narrow and decontextualized reading of Brown is inappropriate. More specifically, this Court explicitly considered and rejected claims that the Constitution is colorblind in a manner that forbids school districts from adopting race-conscious strategies to achieve integration….

As every frustrated parent, teacher or principal (judge, doctor or social worker) knows, institutional opportunities and outcomes are shaped, often dramatically, by inputs beyond the control of particular institutional actors. So historical legacies, neighborhood dynamics, family resources, and government policies like No Child Left Behind do a great deal to shape educational outcomes, but schools exert little direct influence over any of them. A substantial research literature makes clear that in the case of pervasive racial segregation in the nation’s K-12 schools the effects are especially harmful, both for students and for our society as a whole. But if school districts unilaterally can do little to shape most of the processes that feed segregation, they nonetheless ought to be able to use the few, modest tools within their grasp to disrupt the dynamic of segregation before it reaches its predictable conclusion within the schools themselves. The use of race as one element in student assignment plans is an indispensable means to that end. A great deal hinges on this Court’s willingness to uphold its use.

School segregation is the result of a dynamic and cumulative process, not a static and episodic one. We cannot adequately understand the process or the production of durable racial inequality more generally only by examining singular discriminatory episodes or by looking at the practices and procedures of a single institution. In confronting racial inequality we must similarly account for multiple, intersecting, and often mutually reinforcing advantages and disadvantages and develop corresponding response strategies.

At the group level, racial and ethnic minorities are trapped by cumulative disadvantages, much of it surely unintended but nonetheless predictable and knowable. For example, housing discrimination constrains many black and Hispanic youth to attend high-poverty schools. Children in these schools are much less likely than their affluent peers to attend college, and more likely to drop out of school or complete their education in a correctional facility. All three outcomes reduce the labor market options these young adults are likely to have, with grave implications for their chances to secure health and retirement benefits. It follows that in order to fully understand why so many elderly African Americans and Hispanics live at or below the poverty line, we not only must retrace their life-long relationship to the labor market, but also their relationship to the housing market, and to the educational and criminal justice systems.

The production of racial inequality is largely cumulative in three distinct but related respects, all of them readily apparent in the context of school segregation. First, advantage and disadvantage have cross-generational causes and effects. Consider current racial gaps in wealth. In 2000, non-Hispanic white households enjoyed a median net worth of $79,400, eight times the net worth of Hispanic households and ten times the net worth of African American households. Even at similar levels of income, huge gaps remain. Most of the wealth gap owes to equally enormous racial differences in the intergenerational transfer of wealth, the roots of which we find mainly in historical public and private sector policies and practices that created wealth for whites and denied it to nonwhites. For example, the key initiatives of the New Deal and Fair Deal era, including Social Security, Unemployment Insurance, and the G.I. Bill, all but excluded African Americans from their benefits. As a result, African Americans whose parents came of age in the 1940s and 1950s will receive less than one-tenth the inheritance of their white peers.

Racial inequality accumulates across social arenas as well. Outcomes in one domain, whether favorable or unfavorable, shape outcomes in other domains. For example, fifty years of research on “neighborhood effects” documents the ways that social opportunities and outcomes cluster spatially in an intricate, but nonetheless intelligible web of reciprocal causation. Because public infrastructure and basic services like transportation, education, public safety, and recreation are funded largely by local tax revenues, residents in poor municipalities are taxed at higher rates than those in more affluent areas for similar services—or, they receive lesser services for the taxes they pay. Childhood obesity rates escalate in low-income neighborhoods as fear of crime and the lack of playgrounds and parks in poor areas keeps children indoors. Segregation and unequal access to health care mean that racial minorities receive less and worse health care than whites do, exacerbating health disparities. Health difficulties in turn undermine student academic performance. Employment, health, wealth, crime and safety, delinquency and risky behavior, educational achievement, recreation—neighborhood residence has implications for them all.

Finally, inequality also arises from interactions within a single social domain over time. Thus, a poor work history in one’s young adult years will likely hamper one’s ability to secure future employment, get promotions, and earn high wages. A student judged precocious in elementary and middle school is more likely to be placed in college-prep classes in high school, making her a more appealing college admissions candidate. Offers of admission with generous financial aid packages in turn will make it more likely that she attends college and graduates on time.

We could add many other examples of cumulative causation across generations, across domains, and within domains, but none would be more compelling or more exemplary of the structural and institutional dynamics underlying persistent racial exclusion in the United States than the case of school segregation. More than five decades after Brown the nation’s public schools remain extremely segregated by race and class, with most urban African American and many Hispanic students isolated from real educational opportunity in poor school districts. Jefferson County’s and Seattle’s limited use of race-based student assignment plans reflects the school boards’ appreciation of these dynamics and represents modest, efficient, and necessary efforts to address them.
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