Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia

Part I – Brown v. Board of Education

 

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the races stamps the colored race with the badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

- Plessy v. Ferguson [1]

Segregation of the white and colored children in schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

- Brown v. Board of Education [2]

 

Desegregation in DeKalb County’s schools did not come easily, or quickly. The largest school system in the state of Georgia labored for more than a quarter century to meet the sometimes conflicting demands of the federal government and the evolving concerns of the county’s citizens. But the story of its struggle, and that of the children it has endeavored to serve, provides a useful point of departure for an examination of the nature of equality and how Americans have tried to achieve it, and the forces of change that have driven the county forward over the last 60 years.

In 1954, when the U.S. Supreme Court handed down its landmark decision in Brown v. Board of Education, it was not only overturning a precedent that had stood for nearly 60 years, but it was redefining “equal protection of the laws,” guaranteed by the Fourteenth Amendment, in a radically different way.

The decision was a victory for the Legal Defense and Education Fund of the NAACP, led by Thurgood Marshall. Marshall and his associates had been building the foundation for the court’s Brown decision for some 14 years, in a series of cases in which the “separate but equal” rule of Plessy was shown to be a hollow promise.

In perhaps the most important precedent to the Brown decision, the court in 1950 held that a separate law school for blacks only, hastily set up in Texas to accommodate a qualified black applicant to the University of Texas’s law school, was woefully inadequate. In addition to the considerable evidence that the new school’s facilities were not comparable to those of the all-white law school at the University of Texas, the court considered the intrinsic value of a degree from a respected institution. “Equality” was recognized to consist of more than physical amenities. [3]

Brown expanded on this notion of equality, but did so in a way that was rather novel for an American appellate court. In his opinion for the unanimous court, Chief Justice Earl Warren relied in part on historical interpretation and in part on modern psychological treatises to support his finding that discrimination in schooling diminished the quality of education that could be obtained.

At the time the Fourteenth Amendment was ratified, Warren observed, public education had been of relatively little concern to most Americans, but this set of circumstances had now changed. Obtaining adequate preparation in school for adult life may have a determinant effect upon one’s ability to participate fully in American society. At the same time, psychologists have developed a greater understanding of the detrimental effect that loss of status can have upon one’s ability to perform to the best of his or her ability. The court at the time Plessy was decided could not have taken these factors into consideration.

Acknowledging, then, the importance of education in the present day, and noting the improved understanding of the learning process afforded by modern psychology, Warren essentially ignored the reasoning of the Plessy decision in his opinion. As a result, “equal protection” in the public schools now had an entirely new meaning, not based on prior case law, whose full implications were yet to be imagined.[4]

Warren realized that the effects of the decision would be far-reaching, and understood that implementing a policy affecting all the nation’s schools was an enormous undertaking. The court asked that the parties in Brown return the following term to argue the conditions under which desegregation would occur.[5]

In the decision commonly known as Brown II, the court authorized the federal courts to oversee school desegregation efforts, and ordered that these take place “with all deliberate speed.”[6] In setting out the conditions under which relief would be obtained, the court was intentionally vague. Citing the variety of local conditions, the court gave primary responsibility to the local school systems to correct the problems. The courts’ role would be to monitor their efforts and determine whether they were acting in good faith to comply with constitutional principles.[7]

While it is understandable that the court would decline to set down specific guidelines for solving a problem whose complexities were little understood, the decision left significant areas of uncertainty. Of particular interest to school systems involved in later litigation was the question of when and how court supervision could be terminated. In 1955, this was not a question of pressing importance either to the Supreme Court or to DeKalb County.

The desegregation of the nation’s school systems under the mandate set down in the Brown decisions was about to begin.

 

Part II: The federal court order

 

From 1822 to 1955 DeKalb has moved toward an adequate school program. It has joined with its neighbors in a statewide effort to improve education in Georgia and throughout the Southland. There is confidence as we face the task that lies ahead. However, there is an urgency as we plan for new buildings and new equipment, and additional teachers for the swelling school enrollments.

Our children cannot wait.  

- Author Unknown[8]

 

Some residents of DeKalb County felt that they had waited long enough. A decade after the Brown v. Board of Education decisions[9] mandating the desegregation of public schools, very little had changed in this suburban Atlanta community.

The DeKalb County School System (DCSS) had been operating a “dual system” of schools for its citizens at the time of the Brown decisions, and for many years, continued to do so. White children and “colored” children continued to attend separate schools in spite of the court’s instruction to desegregate. The system’s only response to Brown v. Board of Education was to institute a building program to upgrade the quality of schools designated for African Americans – in effect, finally complying with the Plessy v. Ferguson decision of 1896, which required “separate but equal” facilities.

It was only when legislation was passed affecting funding for schools that the DCSS acted to change its policy. Title VI of the Civil Rights Act of 1964 gave the federal government the authority to withhold funds from school systems that did not cooperate with the courts in desegregation efforts. The Elementary and Secondary Education Act of 1965 required systems to agree in writing to desegregation plans.[10]

In 1966, the DCSS instituted a “freedom of choice” plan, which allowed students to transfer, on a voluntary basis, to another school. A small number of African American students transferred to formerly all-white schools, but the majority of black students remained in all-black schools. In some cases, white students used the program to leave schools where blacks lived in the school’s attendance zone.[11]

In 1968, the Supreme Court handed down its first major school desegregation decision since Brown II [12]. In Green v. County School Board of New Kent County Virginia, the court found that providing for a “freedom of choice” plan was an inadequate measure where the plan failed to produce actual desegregation. School systems had an affirmative duty to eliminate racial discrimination.[13]

Six factors were set forth which would be used in later decisions for determining whether all vestiges of past discrimination had been eliminated. Reflecting general guidelines set forth in Brown II,[14] the Green factors were: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[15]

Because DeKalb’s “freedom of choice” plan was no more effective than the one in New Kent County had been, the DCSS was clearly facing a potential legal challenge. But events then occurred which may have moved things forward more quickly than anyone could have expected.

In May of 1968, a fight between white and black students at predominantly-white Cross Keys High School was large enough that the police were called to break it up. Several African American students were arrested, but no white students were taken into custody.

Within weeks, two sets of plaintiffs (black and white parents) filed a class action suit in federal court against the DCSS and its superintendent, James Cherry. Alleging violations of students’ Fourteenth Amendment rights, they sought also to avoid the loss of federal education funds if the system did not effectively desegregate.[16]

On June 12, 1969, U.S. District Court Judge Newell Edenfield issued an order requiring the DCSS to abolish its “freedom of choice” program and adopt a neighborhood school attendance plan that had been developed by the DCSS in cooperation with the Department of Health, Education, and Welfare. The court retained jurisdiction over the case until desegregation of the DCSS could be effectuated.[17]

As a result of the June 12, 1969 order, the DCSS closed the remaining schools that had been built for “colored” students. At the time, African American students in DCSS schools numbered 4,876, or 5.9% of the total student population. All of these African Americans – except for 688 students at one elementary school – now attended majority-white schools.

But while the black population in DeKalb was small, it would grow rapidly in the coming years. By the 1974-1975 school year, the percentage of African American students enrolled in the DCSS stood at 15.1%. The number of majority-black schools increased correspondingly.[18]

As blacks moved into the southern and western portions of the county, the eastern region became the new home of migrating middle class whites. Fast-growing “white flight” developments in the areas near Stone Mountain compelled the DCSS to open a new high school on Redan Road in the mid- 1970s. Redan High School would play a prominent role in the desegregation battles to come.

In 1972, the DCSS started a program to further desegregation in the county. Called the Majority to Minority (M-to-M) program, it allowed students who were members of the majority race in their neighborhood school to transfer to a school in which their race was a minority group. The program was not well-publicized, and fewer than 30 students participated in the 1974-75 school year. Transportation costs were borne by the families of the students in the program. The M-to-M program would also figure prominently in the events to come as the school system continued to operate under a federal court order to desegregate.[19]

While DeKalb adjusted to judicial supervision and changing demographics, court decisions across the country would redefine school desegregation.

 

Part III: Desegregation reexamined

 

All things being equal, with no history of discrimination, it might well be desirable to assign students to schools near their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems ….

- Swann v. Charlotte-Mecklenburg Board of Education [20]

 

As the DeKalb County School System began to comply with a 1969 federal court order to desegregate, the Supreme Court continued to hear cases that refined the mandate set forth in Brown v. Board of Education. [21]

The 1968 Supreme Court decision in Green v. County School Board of New Kent County Virginia had addressed the desegregation of a small school system. New Kent County had only two schools – each combined elementary and high schools – and there was no residential segregation within the county.[22]

But many school systems, like DeKalb’s, were larger, and their desegregation posed more complex problems. A series of Supreme Court decisions in the 1970s would guide the lower court in evaluating efforts to desegregate metropolitan school districts.

The school system in Mecklenburg County, North Carolina, had combined with that of the city of Charlotte in order to devise an effective desegregation plan, but the plan was not working. The combined system covered an area of 550 square miles, included 107 schools, and served 84,000 students. Most of the system’s African American students went to schools which were at least 99% black.

Dissatisfied with the school system’s efforts, the District Court judge hired a consultant to devise a new plan, which was then imposed by the court. Both the plaintiffs and the school system appealed, and the case eventually reached the Supreme Court.[23]

In what has come to be known as “the busing case,” the 1971 Swann decision reaffirmed the broad discretionary powers that the federal courts have in correcting discrimination in schools that had previously been segregated by law. Courts may consider the racial composition of the entire district and impose a quota determining the racial composition of each school. Attendance zones may be gerrymandered, and zones may be “paired” or “clustered” in order to bring students from different parts of the school district together in integrated schools. Courts may further require busing in order to achieve desegregation, as long as the travel required is not so arduous as to diminish the educational benefit.[24]

In addition to the ruling on remedies to government-mandated segregation, the Supreme Court spoke on an issue of great interest to school systems under court order – how to determine if a system has effectively achieved desegregation. In Swann, the court held that the mere existence of single-race schools in a previously segregated system is not proof that state-sanctioned discrimination still exists. However, the burden will be on the system to prove that some other cause, such as residential patterns, accounts for their existence.[25]

In cases involving constitutional rights, the distinction between government action and private action is important. Our civil rights and liberties and are protected under the Constitution against violation by the government. The federal courts, empowered under the Brown II decision to ensure the dismantling of state-mandated school segregation, had no authority over segregation that was the result of private choice.

In Keyes v. School District 1, the court addressed segregation in schools outside of the Deep South – where dual school systems had been required by law. The court made a distinction between de jure segregation – that which had been mandated by official state action, and de facto segregation – in which only private action was involved. Since private discrimination does not, by itself, amount to a violation of constitutional rights, the courts have no power to fashion a remedy in those cases. [26]

In Keyes, however, the Denver school system was found to have used gerrymandered attendance zones in order to segregate Hispanic students into one school. Although there had never been a law requiring segregated schools in Colorado, the court held that the action by school officials to segregate even one part of the system constituted a prima facie case of de jure segregation. In his opinion for the court, Justice Brennan noted that the record indicated that actions taken to segregate one school had an effect on all of the others in the district. [27]

The theme of repercussive effects was revisited in Millikan v. Bradley. The city of Detroit, Michigan had operated a system of de jure segregation within its schools. By the early 1970s, however, the city schools had become predominantly African American as whites had moved to the suburbs. In order to create a system of racially balanced schools, the District Court ordered that the school systems in the 53 surrounding suburban communities be involved in a massive busing plan.

The Supreme Court, however, held that the order could not be justified. If the suburban school systems had not committed a constitutional wrong, the federal courts had no authority to draw them into a mandated desegregation plan. Only if the de jure segregation in one system had caused an effect in a neighboring system could a remedy be ordered that would cross district lines. [28]

The four dissenting justices in Millikan pointed out that the school systems, both urban and suburban, are creatures of the state, which is responsible for guaranteeing Fourteenth Amendment rights. If it would be impossible to remedy segregation in the city school district without busing students across district lines, then it would be appropriate to consider this option.[29]

As part of the court’s supervision of the school system in Pasedena, California, racial quotas were imposed so that no school contained a majority of a group that did not represent a majority in the system as a whole. Because the area was undergoing rapid demographic changes due to the migration of different groups, the court had undertaken to make year-by-year adjustments in the racial composition of the schools.

The Supreme Court held, in Pasadena City Board of Education v. Spangler, that once the effects of de jure segregation had been remedied, later imbalances that were not caused by official action could not be corrected by the federal courts.[30]

The court’s decisions must have been received with some foreboding in DeKalb. The court had endorsed large-scale busing programs as a remedy to systemic desegregation, and had put the burden on school systems to disprove intent to discriminate. After Millikan, it did not appear that the court would act to remedy segregation in one school district caused by actions taken across district lines, but DeKalb might have made an interesting test case.

Unlike the school systems in suburban Detroit, DeKalb County’s had practiced de jure segregation. There was evidence that much of the white flight into central DeKalb was caused by the desegregation of Atlanta’s public schools.[31] These circumstances would arguably distinguish its demographic changes from those in Pasedena, and tie the DeKalb County School System to another system that could also be shown to have engaged in constitutional violations.

The picture that emerged from these court decisions did not provide a clear indication of what could be expected in DeKalb County. Meanwhile, the federal court order to desegregate remained in effect, and still the population of DeKalb County continued to grow.

 

Part IV: Tensions rise

 

Most of the students who come in of the minority race have come in recently. They have swelled the population and the percentages of minority students, so naturally we are working with an achievement problem. The longer you are here the better you achieve.

- Dr. James H. Hinson, Superintendent, DeKalb County Schools[32]

 

In February, 1975, Black History Week at Columbia High School was cancelled. Columbia, in the southwestern part of the county, was a school in transition from majority-white to majority-black due to demographic changes within its attendance zone. The African American students reacted strongly to the school administration’s action, first by staging a sit-down protest, then by marching from the school to the state capital. Students who participated in the march were suspended from school by the principal. A subsequent protest at the school led to 101 arrests. While ultimately all of the students were acquitted, efforts by black parents to have the charges dropped fell on deaf ears.[33]

Meanwhile, parents in the community organized a group – called Concerned Citizens – which began to lobby the school board for changes. They spearheaded the unsuccessful attempt to get the board to drop charges against the students arrested at Columbia and met with the school board to voice their complaints. Concerned Citizens would continue their involvement in the fight against discrimination in the DeKalb County School System (DCSS) for some time to come.[34]

In April, 1975, the school board’s policies led to a loss of federal funds at Columbia High School. The issue was not the handling of the protests, but rather the use of “tracking” – segregating students by level of academic ability – in a racially discriminatory fashion. School Superintendent James Hinson would later explain the problem.

You read a few years ago where we got a six hundred thousand dollar grant for providing compensatory education services to certain target schools undergoing racial transition. In order to participate in that program you had to be two years behind in your studies, two years below grade level. We tested all the students, we put the students in the classes, they turned out to be 85 to 90 percent minority students. Another unit of federal government comes in and says “You have racially identified the classes.” Those were the only ones eligible to be in the classes. They gave us the money under those terms and circumstances. So our Board had to say “Gentlemen, you may have your money back because you can’t dictate how we form the classes in our school system.”[35]

A settlement was finally reached with the Office of Civil Rights (OCR) of the Department of Health, Education, and Welfare in June of 1975, and DeKalb’s eligibility for the $516,000 federal grant was restored. The number of racially identifiable classes which a student attended could constitute no more than 25 percent of his or her school day. As part of the settlement, a new system-wide discipline code was to be written and approved by the OCR. Specific programs to relieve tensions at Columbia High School were to be reviewed by the OCR as well.[36]

That same month, the Concerned Citizens filed a motion in federal District Court charging that the DCSS was not adequately addressing the problem of racial discrimination as it was required to do under the June 12, 1969 court order. The group asked for two forms of relief: a broader implementation of the M-to-M program, including transportation provided by the DCSS, and an end to the gerrymandering of school attendance zones. A spokesman for the group stated that large-scale busing was not being sought, but if other means of integrating the schools failed, it would be considered as an option.[37]

In August of 1975, two days before registration for classes for the coming school year, the DCSS announced a change in its M-to-M policy. Students would now have to apply for the program at their neighborhood school and then would only be allowed to transfer to the “next closest school” to their home that had less than 40% minority students and also the capacity to receive new transfers. Once the principal at the neighborhood school had identified the “next closest school” which the student might attend, the parent had to apply at that school. No special provisions would be made to allow children in the same family to attend the same school, and acceptance to the program one year did nothing to guarantee a spot for the following year. The application process would have to be repeated annually for as long as the student wanted to continue in the program.[38]

Judge Edenfield again heard arguments on the various issues in the case, and in the end handed down a ruling which completely restructured the M-to-M program. In an order dated November 3, 1976, he required these guidelines be followed:

  1. Students could transfer to any school in which their race was the minority. Short of denying space to previously enrolled students, space must be made available to transferees.
  2. The application process was to be streamlined and simplified.
  3. The program was to be publicized throughout the system.
  4. Once admitted to the program, students would not be required to reapply every year, and would be guaranteed a spot in the school which they had been attending.
  5. Transportation would be provided by the system.
  6. These changes would be fully implemented for the start of the 1977-1978 school year.[39]

In addition, the November 3, 1976 order required that faculty assignments at the schools reflect the overall racial composition of the school district. Finally, a biracial committee was created to oversee the desegregation process.[40]

In 1979, the Biracial Committee applied to the federal court to revise the 1976 order. At that time, the DCSS’s African American population constituted 26% of the total number of students. Arguing that the M-to-M program was causing white flight, the committee requested a modification which would close a school to M-to-M transfers once the minority population in that school reached 26%. A hearing was held in April, and evidence regarding population migration was introduced.

However, in his order dated May 8, 1979, Judge Edenfield denied the request. Finding that there were no facts to support the claim that the M-to-M program had a caused white flight, he held that the November 3, 1976 order was still in force.

In addition, a minor modification sought by the plaintiffs was approved. The DCSS would be required to publish a brochure that would “enthusiastically encourage participation” in the M-to-M program.

In the final section of the order, the judge commended the efforts of the Biracial Committee in working towards an integrated school system, but recognizing that much remained to be done, encouraged an “all-out campaign to enroll black children as M-to M students in schools which have thus far achieved little integration.”[41]

 

Part V: DeKalb seeks an end to federal supervision

 

The courts have consistently recognized that a previously segregated dual school system does not automatically become desegregated just because a constitutionally acceptable plan is adopted and implemented

- 11th Circuit Court of Appeals [42]

 

The African American population in DeKalb County continued to grow throughout the 1980s and 1990s, and participation in the M-to-M program increased. The number of M-to-M students in the 1977-1978 school year was 534, but this number jumped to 1229 the following year. By 1981-1982, the number had topped 2000, and it passed the 4000 mark in 1986.[43]

Meanwhile, the white population in certain parts of the county continued to grow as well. Redan High School was operating in excess of its capacity by the 1978-1979 school year. By 1984-1985, the overflow, housed in trailers on the school grounds, numbered 808 students. The DeKalb County School System (DCSS) planned to build a new school in Redan’s district (known as Redan II) to house the 8th and 9th grade classes and alleviate some of the pressure.

In 1983, the plaintiffs in the class action suit filed a motion seeking to enjoin the DCSS from building a new facility. They alleged that the system was seeking to avoid assigning white students in Redan’s district to neighboring predominantly-black schools.[44]

This argument had a familiar ring. It had been alleged in the Swann case[45] that the Charlotte, North Carolina school district had furthered segregation by constructing new schools in all-black neighborhoods and then limiting enrollment to accommodate only the immediate area. In that 1971 case, the U.S. Supreme Court had ordered a massive busing program to effect integration across the district.

In Atlanta’s U.S. District Court, the ongoing case had been taken over in January of 1981 by Judge William C. O’Kelley. In his February 22, 1984 opinion, Judge O’Kelley found that the DCSS had been converted from a dual to a unitary system in 1969. Thus, the presumption that the existence of a single-race school was evidence of intent to discriminate no longer applied. Having failed to prove discriminatory intent, the plaintiffs could not prevail. [46]

The Eleventh Circuit Court of Appeals saw things differently. In a strongly worded opinion dated March 22, 1985, the court held that only after a hearing could a finding be issued that a school system had become unitary. All interested parties must have notice and an opportunity to be heard before the withdrawal of court supervision. As to the Redan II plan, the court found that the DCSS had an affirmative duty to consider the impact upon the desegregation of the system in any building plans it made. If that impact was a tendency toward resegregation, the DCSS might be faced with an injunction to refrain from using the new facility (which was, by this time, under construction.)[47]

The Redan II episode offers perhaps the best example of the dramatic changes in population then occurring in DeKalb. By October of 1985, when Judge O’Kelley ruled again in the case, the Redan school district had a 40% black population. Clearly, opening Redan II (now renamed Miller Grove) would not have a resegregative effect and the school system was approved to go forward.[48]

In January of 1986, the DCSS filed a motion in District Court seeking a determination that the system had become unitary and an end to court supervision of the schools. The trial on the issue was held over three weeks in July of 1987. Testimony was heard which highlighted the inequities that remained in DeKalb’s schools. Teachers in majority-black schools had on average 4.9 years of experience, compared to 8.9 years in predominantly white schools. Fewer advanced placement courses were offered in majority-black schools, and per-pupil expenditures were lower in those schools.[49]

On June 30, 1988, Judge O’Kelley issued his ruling denying DeKalb’s motion. Holding that the system had fallen short in the areas of equalizing per-pupil expenditures, teacher experience, and minority representation among teachers and school administrators, the court nonetheless found that the system had satisfied other criteria for achieving unitary status. No longer would the court supervise the DCSS in the areas of student assignment, transportation, and extracurricular activities. Plaintiffs appealed, arguing that the DCSS should not be released from supervision in the area of student assignment.[50]

The Court of Appeals issued its opinion in October of 1989. The court held that the best approach for determining if a school system had achieved unitary status was to look at the six factors enunciated in the 1968 Green decision: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[51] If a system was in compliance in all six areas simultaneously for a period of at least three years, a District Court could find that it had eliminated all vestiges of its dual system. If not, the District Court must retain jurisdiction.[52]

The Eleventh Circuit was not the only appellate court that had ruled on this issue. In a similar 1987 case, the First Circuit adopted the same kind of incremental approach that Judge O’Kelley had used, and that the 11th Circuit had rejected.[53]

The DCSS decided to appeal the ruling to the U.S. Supreme Court, hoping that the court would accept the case in order to reconcile the different rulings of the First and Eleventh circuits.

There was much at stake. Under the Eleventh Circuit ruling as it stood, the DCSS faced the burdensome obligation of overcoming any inequities caused by the dramatic demographic changes occurring within the county. By 1986, the black population in DeKalb schools had reached 47% and was continuing to grow.[54]

Along with changes in the population, came some new ideas about how to deal with the problem of inequality in the county’s schools.

 

Part VI: Students caught in the middle

 

I like you, Roger. You’re the one person in the county people hate more than they hate me.

- Robert R. Freeman, Superintendent, DeKalb County Schools [55]

 

The trial in July of 1987 to determine whether the DeKalb County School System (DCSS) had abolished its dual system of racially segregated schools included testimony from a witness with royal credentials. But hers was no Cinderella story.

Michelle Saunders, Redan’s first black homecoming queen, testified that after she won the 1987 Miss Redan High School pageant, a petition circulated around the school, demanding that her crown be taken away. Racial slurs appeared on the walls. The mood at the school was charged with tension. “When I walk in the door, I can feel the tension. I can feel it when I walk in the classroom. The main problem is the administration won’t address the problem,” Saunders testified.[56]

School officials denied that the situation was as bad as some of the witnesses’ statements indicated. Redan’s principal pointed out that Saunders had been elected homecoming queen by the majority-white senior class.[57] But clearly, the DCSS was concerned about the effects of racial tension. As it had done following the incidents at Columbia High School a decade earlier, the DCSS revised its discipline code to eliminate discretion in punishment and provide for uniform treatment of offenses.[58]

Critics charged that the system was not doing enough to reduce racial tensions. Suggestions that groups be set up to welcome transfer students were not acted upon, and recommendations for sensitivity training for teachers were never implemented. Meanwhile, black students in predominantly white schools tended to feel isolated and unwelcome. Little social interaction took place between students of different races. Unintended slights were often perceived as hostile gestures. Parents debated the value of the M-to-M program in terms of academic benefit versus social cost.[59]

DeKalb’s “Majority-to-Minority” (M-to-M) program allowed students who were members of the majority racial group at their home school to transfer to a school in which their group was in the minority. It had been the primary tool for school desegregation since it had been implemented in 1972. But it had taken several years to become effective due to inadequate notice of its availability, inadequate provision of transportation, and rules that created practical obstacles for families who wished to participate in the program. A 1976 federal court order had mandated changes in the program and had created a biracial committee to oversee the desegregation process. But now concerns were arising about the burden placed on children who spent hours on buses traveling to schools that held classes in trailers due to overcrowding. And there were continuing concerns about the program’s availability to those who wished to participate.

In February of 1988, the Biracial Committee recommended changes to be made in the brochures that explained the M-to-M program. Parents had been relying on word-of-mouth to decide where to send their children, and the most popular schools were becoming seriously overcrowded. In hopes of distributing children more evenly among the county’s schools, the committee recommended printing the number of available spaces at each school on the brochures.[60]

Some efforts to improve conditions at the schools were made more complicated by the court decisions. The swelling student population necessitated the use of trailers as temporary classrooms at many schools, and plans were being drawn up for the construction of new buildings. But due to the earlier ruling in the Redan II case, the DCSS was obligated to consider the desegregative effect of all its decisions concerning facilities. Requests for new trailers had to be approved by the Biracial Committee.[61]

In October of 1987, Superintendent Robert Freeman unveiled a six-year plan for reorganization of the county’s schools and construction of new facilities. The chief features of the plan included the construction of 11 new schools, the consolidation of high school attendance zones, and the creation of junior high schools (most of which would be housed in former high school facilities.)

Details of the consolidation plan concerned some parents. In some cases, high schools would be paired off, and one would be transformed into a junior high school that would feed the senior high. In other cases, a new junior high would be constructed within the attendance zone of an existing high school. This latter strategy seemed most often to be the employed if the high school was predominantly-black, virtually ensuring that the junior high school would be majority-black as well. Activist parents complained that black schools should be paired with white schools, to maximize the desegregative effect of the consolidation scheme. But the rapid changes in the county’s population complicated planning based on racial concerns.

Explaining the difficulty at a public meeting, Freeman acknowledged that a pairing of majority-black Avondale High School with majority-white Clarkston would result in a racially balanced student population today, but within a few years, both schools were predicted to be predominantly-black.[62]

Construction plans also raised some concerns. In 1990, plaintiffs in the lawsuit against the DCSS asked Judge O’Kelley to block construction of two new schools in rapidly-growing southeastern DeKalb until the resegregative effect of the new schools could be determined.[63]

The DCSS had been under instructions since the 1976 court order to assign teachers to all its schools in a manner that would reflect the racial composition of the county as a whole. With the District Court decision of 1988, however, it became evident that the disparate levels of teacher experience at the system’s schools would also have to be corrected.

In July of 1989, the DCSS conducted lotteries to select the veteran teachers that would be moved, then sent out letters to teachers at predominantly-black schools who had less than five years experience, asking if they would be willing to transfer to a predominantly-white school. Of the 140 veteran teachers selected, 114 reported to their new assignments. The remainder resigned or took early retirement.

Citizens complained about the loss to the school system that the resignations would bring and three teacher organizations filed suit to delay the transfers. But the new school year began without a hearing on the issue, and with the transfers accomplished, the issue became moot.[64]

By the mid-1980s, the leading spokesman for the plaintiffs on the ongoing court case was Roger Mills, the white parent of two black daughters enrolled in DeKalb schools. Mills had been involved with the suit since 1976, and was an outspoken advocate for aggressive means to accomplish the integration of the schools, including involuntary busing.

But opposition to this kind of drastic measure was growing among DeKalb’s African American community. In March of 1990, a group of black parents petitioned the court for permission to become plaintiffs. Claiming that the original plaintiffs cared more about racial quotas than quality education, the group argued that the interests of the parents of black schoolchildren in DeKalb were not being represented.[65]

In response to the introduction of the anti-busing parent group into the picture, the DeKalb chapter of the NAACP also sought to join the suit as plaintiffs. While the group had been involved with the case in a supportive role for years, its move now to become a party was seen by some as an effort to head off the kind of settlement that had occurred in Atlanta in 1973. According to a former attorney for the Atlanta office of the NAACP, the “Atlanta Compromise,” in which control of the school system was given to blacks in exchange for a promise not to institute mandatory busing, had been viewed with disfavor by the national office. The DeKalb NAACP would oppose desegregation plans that relied strictly on voluntary action.[66]

After a lengthy hearing in August of 1990, in which the merits of busing were explored at length and an official of the NAACP affirmed in open court her belief that the judge was racist, Judge O’Kelley handed down his ruling on the inclusion of new parties to the class action.[67] The group of anti-busing parents was allowed to join in the lawsuit. As to the NAACP, the judge held that they had failed to prove how their interests were not already being represented in the case. The group led by Roger Mills was allowed to remain a party as well. The judge praised Mills for his determined advocacy, but observed that he had a rather “paternalistic view” of his role.[68]

In February of 1991, the U.S. Supreme Court agreed to hear arguments in the DCSS’s appeal of the 1989 Eleventh Circuit ruling.

 

Part VII: Limiting judicial authority

 

Authorizing and directing local government institutions to devise and implement remedies not only protects the functions of those institutions, but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems.

- Missouri v. Jenkins [69]

 

By the time the U.S. Supreme Court agreed to hear the DeKalb County school desegregation case, more than 35 years had passed since Brown v. Board of Education (1954) had held that segregation in public education was unconstitutional.[70]

In 1955, the court had ordered that local school authorities take steps to dismantle government-mandated segregation in schools “with all deliberate speed” and gave supervisory and enforcement powers to the federal courts.[71]

In 1968, the court ruled that a desegregation plan that relied entirely on voluntary efforts by parents and students was inadequate to overcome government violations of equal protection. The opinion in this case also identified six factors that would later come to be used as the measuring stick for determining whether a school system had achieved desegregation. [72]

In 1971, the court authorized a plan to achieve desegregation through mandatory busing on a massive scale across a large metropolitan school district. This case represented perhaps the high-water mark for the exercise of federal judicial authority over a local school system. [73]

But since the early 1970s, the main issue in many desegregation cases had involved the question of whether or when the goal of desegregation had been achieved, and the practical question of when a local school system could be free of direct supervision by the federal court.

In 1991, as the DeKalb desegregation case moved towards argument before the Supreme Court this issue of the limits of federal judicial authority over schools was the subject of two recent cases.

As part of its desegregation program, the Kansas City, Missouri School District (KCMSD) had instituted an expensive magnet program. The program proved too costly to pay for out of the revenues to which the system was entitled under state law, so the District Court ordered an increase in the local property tax in order to pay for it.

The Supreme Court, in Missouri v. Jenkins, held that the District Court had overstepped its authority by imposing the tax. Writing for the court, Justice White suggested that the District Court should have instead authorized or required the KCMSD to increase the tax, and enjoined the operation of state law that would have prevented it from doing so. Justice Kennedy was joined by three other justices, concurring in the judgment, but finding little substantive difference between a court-ordered tax and one authorized by the legislature under the threat of a court order. In any event, the decision signaled an unwillingness by the Supreme Court to tolerate creative expansions of judicial authority in desegregation cases.[74]

The school system in Oklahoma City had been in litigation since 1961, and its procedural history included a 1972 court order to desegregate and a 1977 finding by the District Court that the system had become unitary (no longer segregated). In 1984, after the school system eliminated its mandatory busing program and replaced it with a voluntary majority-to-minority program, a motion was filed to reopen the case. Plaintiffs argued that the 1972 order was still in effect and that the school system could not abandon its desegregation program. The Court of Appeals agreed, and held that “compliance alone cannot become the basis for modifying or dissolving the injunction.”

In Board of Education of Oklahoma City v. Dowell, the Supreme Court held that the 1977 finding that the system was unitary did not explicitly dissolve the 1972 desegregation order, and so it still was in force. However, the standard for deciding whether or not to release the system from court supervision was somewhat lower than the Court of Appeals had ruled. Courts should consider whether the school system had complied in good faith with the court order, and whether the traces of de jure segregation had been eliminated “to the extent practicable.” To make this determination, courts should refer to the criteria stated in the 1968 Green decision: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[75] Evidence of good faith compliance with previous orders should be considered in determining whether there is a continuing danger of unlawfulness.[76]

By October 7, 1991, when oral arguments were heard in the DeKalb school case, the court had been showing signs of increasing deference to local autonomy and an unwillingness to mandate solutions for problems that were beyond the control of the school systems.

 

Part VIII: Freeman v. Pitts

 

Rex E. Lee, attorney for DeKalb County schools: The District Court found … that the racial imbalances that had resulted in the schools were “the result of demographic shifts” which … “were not caused by any action on the part of the DeKalb County School System.”

Justice Byron White: Well … for a time there was a racial balance?

Lee: That is correct, until such time as … these demographic changes came in.

Justice White: How long was that? Did it start … ?

Lee: Almost immediately. It started and has just continued since that time, and it continues today.

- Excerpt from oral arguments before the Supreme Court [77]

 

The decision in Freeman v. Pitts was handed down on March 31, 1992 with the opinion of the court written by Justice Kennedy. Overturning the 11th Circuit Court of Appeals decision, the court held that it was permissible for a District Court to relinquish control over aspects of a desegregation plan that have been accomplished even while other aspects are in noncompliance. While the concept of a “unitary system” is useful in achieving the goals first set out in Brown v. Board of Education,[78] the term does not appear in the Constitution, or have a rigid meaning which must be adhered to in every case.

The court again endorsed the Green criteria as guideposts for evaluating desegregation efforts (student assignment, faculty, staff, transportation, extracurricular activities, and facilities)[79] but pointed out that the variety of differences in local circumstances prohibited the use of inflexible rules. Equitable remedies require a balancing of individual and collective interests, and courts should not overstep their authority in fashioning remedies.

Citing the Spangler case[80] as an example of a court attempting to correct a problem that was outside of its purview, the court drew an analogy between the facts in that case and the demographic changes that had occurred in DeKalb. The Court of Appeals had exceeded its authority in requiring DeKalb to continue to satisfy all of the Green criteria simultaneously for a period of years if its good faith efforts continued in the problem areas that still remained.[81]

Justice Scalia wrote a concurrence in which he pointed out that most often, segregation is the result of a mix of public and private actions. The courts should not be so quick to assume that the state is the primary culprit.

Justice Souter wrote to express concern that, even where some of the Green factors are satisfied, if others are left unremedied, they may have a corrupting effect on the whole system. Before the District Court relinquishes control, it should find that there is no danger of this occurring.[82]

Justice Blackmun wrote a concurrence in which Justices O’Connor and Stevens joined, which echoed the points made by Scalia and Souter, but in stronger terms. Blackmun would have the District Court continue to monitor the system, even in areas over which there is no direct supervision, to ensure that resegregation does not occur. In addition, before a system may be released from supervision, it should have to prove that its actions had the effect of dismantling the dual system it had once maintained. A showing of good faith compliance should not be sufficient.[83]

The reaction in DeKalb was swift and emotional. Some parents saw the decision as a signal that equality in schools would never be achieved. It was the sudden and disappointing end to a decades-long struggle toward progress. Others saw it as a vindication of the efforts the school system had made for so many years. Those who had opposed a massive busing program were relieved. Government leaders expressed satisfaction with the decision, and predicted that development in the county would increase sharply in the coming years.[84]

The effect of the decision within the court system was to send the case back to the Court of Appeals. While the sort of broad remedy the Eleventh Circuit had ordered could now no longer be imposed, there were still issues remaining to be resolved. In December of 1992, the Court of Appeals remanded the case to the District Court for resolution of the issues of faculty and staff assignments, and other quality of education issues.[85]

 

Part IX: Facing the end of the court order

 

We are proud of our cultural diversity and believe it to be one of our strengths.

- DeKalb Partners in Education Foundation, Inc. [86]

 

On March 28, 1993, as federal court supervision of the DeKalb County School System’s desegregation program was coming to an end, the Atlanta Journal and Constitution began a series of articles on the changing demographics in DeKalb County schools. Entitled “DeKalb: Black and White,” the articles were sharply critical of the academic performance of the schools. The lead article in the series compared DeKalb’s schools to those of neighboring systems and found them lacking. Parents who were polled registered less satisfaction with the schools, per pupil expenditures were lower, and Iowa test scores were lower than in other metro Atlanta districts.[87]

Reaction to the articles was swift. The DeKalb school board sent letters home with students in an attempt to counter the negative message of the articles. Superintendent Robert Freeman wrote a letter to PTA leaders which stated in part:

To say our county is changing demographically is accurate and has been for 25 years. To say some people leave rather than deal with contemporary metropolitan America is accurate. It is not accurate to say that DeKalb schools are not innovative. Neither is it accurate to portray our achievements as low. Many positive things are happening.[88]

Meanwhile, readers of the articles took the opportunity to vent their feelings in columns devoted to their responses. Many expressed dissatisfaction with the policies of the school board, or outrage at the racism implicit in statements by school officials. Many more were alarmed and disappointed by the failure of DeKalb’s citizens to confront the challenges of an increasingly diverse populace, instead fleeing to private schools or moving out of the county.[89] One DeKalb native wrote that the issues presented by racial change are used as a mask for legitimate educational concerns. She asked:

Have the administrators become so tied up in the political red tape of this court order that there is little time left to concentrate on the real issue of making the schools the best they can be? Are the best teachers being hired – regardless of race – or are teachers being hired to fill a government-mandated quota?[90]

Regardless of one’s race, or position on the long-standing legal battles, clearly the quality of education was of growing concern to many citizens of DeKalb as the era of court-ordered desegregation was coming to an end.

 

Part X: What does Brown v. Board of Education mean today?

 

Based upon current enrollment data, space will not be available at Chamblee, Druid Hills, Dunwoody, Lakeside and Tucker High Schools during the 1999-2000 school year for new M-to-M students.

- M-to-M Transfer Regulations for DeKalb County Schools, 1998-1999 [91]

 

In June of 1996, three and a half years after the case was remanded to the District Court, and 28 years after it was originally filed, the lawsuit against the DeKalb County School System came to an end.[92]

With the termination of court supervision came a new era for the school system. In theory, none of the measures that had been taken to satisfy the courts needed to be continued, but the school board – still majority-white – was now accountable to a majority-black constituency. The M-to-M program stayed in place. It had remained popular, reaching a peak in participation of 4961 in 1993-1994 school year. The program’s days appear to be numbered, however. As the number of majority-white schools dwindled in the county, available spots for African American students were becoming more scarce. Magnet programs that had been set up in the late 1980s to draw white students to majority-black schools were continued for the time being as well. These programs had never been a very successful integration tool, but were now seen as an opportunity for promoting high quality achievement. Emerging from the era of court-supervised integration, DeKalb’s legacy and the challenges it faced looked very different from the way they had 28 years earlier.

In 1997, DeKalb County’s school system was again in court, seeking a hearing before the U.S. Supreme Court on the issue of reimbursement by the state for the costs of the M-to-M program. The system had won a $34 million judgment in District Court, but then lost on appeal to the Eleventh Circuit. This time, the high court refused without comment to hear the case. Equality does not come cheaply.[93]

The Brown v. Board of Education decision had changed our understanding of “equal protection of the laws” and had opened a period of social change in which the courts became an active participant. [94] In some very important respects, the courts led the way through the minefield of desegregation. Citing the latest social science for support, the court in Brown forced a significant change in the social structure. As a result, most Americans have gained a greater appreciation for the importance of equality – elusive though it may be – in a competitive world. In more recent desegregation decisions, however, the court has increasingly been willing to step away from such an active role, and let local authorities control their own affairs. But have the goals of Brown actually been met? Indeed, is Brown still relevant?

Warren had based his finding that segregated schools for African Americans were inherently inferior upon evidence that is now more than a half a century old. It is worth asking whether circumstances have changed enough in the last 60 years to warrant a reexamination of the bases of that finding. There is a growing body of evidence demonstrating the negative effects that the desegregation of schools had upon some students.[95] Should psychological evidence be the determining factor in defining constitutional rights?

Warren pointed to the importance of education in the modern world. But just how important is it under our system of laws? In 1973, the court declined to rule that education is a fundamental right.[96] Had this decision predated Brown, could Warren have made the same argument?

Much has changed in 60 years, but in DeKalb County, both the civil rights era and the period of increasing conservatism that followed were marked by a consistent set of concerns on the part of its suburban residents. The chance for an improved quality of life drew the vast numbers of new residents into the county. The desire for a quality education compelled the original plaintiffs to seek a remedy in the federal courts. The opportunity to have a profound and forward-looking impact on the youth of the county drove participants in the later stages of the suit to push hard for busing. The desire to consolidate gains and minimize personal costs compelled the anti-busing parents to enter the lawsuit. All were seeking to improve their lives, and the lives of their children, and for a large part of the struggle, the federal courts were their battleground.

____________

[1] Plessy v. Ferguson, 163 U.S. 537 at 551 (1896).

[2] Brown v. Board of Education, 347 U.S. 483 at 494 (1954), quoting a finding of a Kansas court reported in 98 F. Supp. 797.

[3] Sweatt v. Painter, 399 U.S. 629 (1950).

[4] Brown, 347 U.S. 483 (1954).

[5] Brown, 347 U.S. 483 at 495 (1954).

[6] Brown v. Board of Education, 349 U.S. 294 at 301 (1955).

[7] Id.

[8] The DeKalb School System (Undated). Document found in the vertical file “DeKalb Schools” at the Maud M. Burris Library in Decatur, Georgia.

[9] Brown v. Board of Education, 347 U.S. 483 (1954), and Brown v. Board of Education, 349 U.S. 294 (1955).

[10] Jackson, B. B. (1995). The effects of the majority to minority (M to M) program on African American students who transfer to predominantly Caucasian schools. (Doctoral dissertation, Georgia State University). pp.4-7.

[11] Pitts by Pitts v. Freeman, 887 F.2d 1438 (11th Cir. 1989).

[12] Brown v. Board of Education, 349 U.S. 294 (1955), decided a year after the landmark case that outlawed segregated schools, gave federal courts the authority to oversee local desegregation efforts.

[13] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 (1968).

[14] Brown v. Board of Education, 349 U.S. 294 at 300-301 (1955).

[15] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[16] Jackson. p.9.

[17] Pitts v. Cherry, Civil Action No. 11946 (N.D.Ga., June 12, 1969).

[18] Jackson. pp. 10-11.

[19] Id. pp. 13-14

[20] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 at 28 (1971).

[21] Brown v. Board of Education, 349 U.S. 294 (1955).

[22] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[23] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 at 28 (1971).

[24] Id.

[25] Id.

[26] Keyes v. School District 1,413 U.S. 189 (1973).

[27] Id.

[28] Milliken v. Bradley, 418 U.S. 717 (1974).

[29] Id.

[30] Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976).

[31] Bayor, R. (1996). Desegregation and resegregation: Atlanta schools after 1954. In Race and the shaping of twentieth-century Atlanta. Chapel Hill and London: The University of North Carolina Press.

[32] Hinson, J. (1977, September). ‘Back to the basics’ in education. The Decatur-DeKalb News p.3F. From a speech delivered to the Rotary Club of Decatur.

[33] Jackson, B. B. (1995). The effects of the majority to minority (M to M) program on African American students who transfer to predominantly Caucasian schools. (Doctoral dissertation, Georgia State University). pp.14-15. Jackson does not identify the school, but as a student in the DCSS at the time, I remember the incident well.

[34] Id. p. 15

[35] Hinson speaking to the Rotary Club of Decatur. (See footnote 1.)

[36] Teasley, S. (1975, June 15). School system, OCR reach agreement on rights. The Decatur-DeKalb News. p. 7 A.

[37] Concerned citizens to file suit against schools. (1975, June 15). The Decatur-DeKalb News. p.7A.

[38] Jackson. pp. 15-16.

[39] Pitts v. Cherry, Civil Action No. 11946 (N.D.Ga., November 3, 1976).

[40] Id.

[41] Pitts v. Cherry, Civil Action No. 11946 (N.D.Ga., May 8, 1979).

[42] Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985).

[43] DeKaib County School System Majority-to-Minority (M-to-M) Program. (1997).

[44] Pitts v. Freeman, 755 F.2d 1423, 1425 (11th Cir. 1985).

[45] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 at 28 (1971).

[46] Pitts v. Freeman, Civil Action No. 11946 (N.D.Ga., February 22,1984).

[47] Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985).

[48] Woolner, A. (1985, November 1). DeKalb school system can use Redan II facility, U.S. judge says. The Atlanta Journal and Constitution. p. A12

[49] Green, C. (1987, July 17). Witness cites racial gap in DeKalb system. The Atlanta Journal and Constitution. p. A17.

[50] Pitts by Pitts v. Freeman, 887 F.2d 1438,1443-1444 (l1thCir.1989).

[51] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[52] Pitts by Pitts v. Freeman, 887 F.2d 1438,1446 (11th Cir. 1989).

[53] Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987).

[54] Freeman v. Pitts, 503 U.S. 467, 476 (1992).

[55] Watts, R. A. (1989, December 14). Desegregation plaintiff, parents tangle at meeting. The Atlanta Journal and Constitution. p. G6.

[56] Green, C. (1987, July 23). Testimony ends in DeKalb school case. The Atlanta Journal and Constitution. p. C5.

[57] Id.

[58] DeKalb code gets a make-over. (1989, February 18). The Atlanta Journal and Constitution. p. A22.

[59] Watts, R. A. (1989, January 8). School program’s reviews mixed: Majority-to minority transfers bring praise, criticism. The Atlanta Journal and Constitution, p. Bl. See also Jackson. pp.62-119.

[60] White, B. (1988, February 25). Make the M-to-M brochures reflect school capacity, committee agrees. The Atlanta Journal and Constitution, p. AS.

[61] White, B. (1987, November 12). School system jumps back into the temporary classroom market. The Atlanta Journal and Constitution, p. A15.

[62] White, B. (1988, February 4). School plans draw a hard dose of criticism. The Atlanta Journal and Constitution. p. AI.

[63] Watts, R. A. (1990, December 13). Plaintiffs seek to block 2 schools in S. DeKalb. The Atlanta Journal and Constitution. p. A4.

[64] Watts, R. A. (1989, July 19). 3 teacher groups sue to delay transfers. The Atlanta Journal and Constitution. p. C2. Watts, R. A. (1989, January 8). DeKalb set to shuffle teachers north, south. The Atlanta Journal and Constitution. p. C3. Cowles, A. (1989, August 18). DeKalb’s teachers get settled: First day of school nears; resentment on lottery put aside. The Atlanta Journal and Constitution. p. C1.

[65] Watts, R. A. (1990, April 5). School system lawyers query plaintiffs’ status in desegregation suit. The Atlanta Journal and Constitution. p. A1.

[66] Watts, R. A. (1990, August 16). School uses hearing in fight over busing. The Atlanta Journal and Constitution. p. A1.

[67] Watts, R. A. (1990, August 9). Judge eager for decision on desegregation case plaintiffs. The Atlanta Journal and Constitution. p. D9. Watts, R. A. (1990, August 16). DeKalb NAACP official: Judge racist: Group trying to join desegregation suit. The Atlanta Journal and Constitution. p. A1.

[68] Watts, R. A. (1990, December 22). Anti-busing parents will join school desegregation lawsuit: 18 DeKalb blacks to be added as plaintiffs. The Atlanta Journal and Constitution. p, A1.

[69] Missouri v. Jenkins, 495 U.S. 33 at __ (1990).

[70] Brown v. Board of Education, 347 U.S. 483 (1954).

[71] Brown v. Board of Education, 349 U.S. 294 (1955).

[72] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 (1968).

[73] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

[74] Missouri v. Jenkins, 495 U.S. 33 (1990).

[75] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[76] Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991).

[77] The DeKalb school desegregation case: How court saw, heard the issues. (1991, December 12). The Atlanta Journal and Constitution. p. A8.

[78] Brown v. Board of Education, 347 U.S. 483 (1954).

[79] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[80] Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976).

[81] Freeman v. Pitts, 503 U.S. 467 (1992).

[82] Id.

[83] Id.

[84] Wagner, N. (1992, April 1). Voices: What’s next? Blacks not among residents sounding optimistic: The brighter side: Real estate and business people predict new growth for DeKalb. The Atlanta Journal and Constitution, p. A10.

[85] Morris, H. (1992, December 8). Appeals court apparently rules out busing in DeKalb. The Atlanta Journal and Constitution, p. Cl.

[86] An open letter to citizens. Advertisement purchased by the Friends and Supporters of the DeKalb Partners in Education Foundation, Inc. (1993, April 8). The Decatur – DeKalb News/Era, p.l0A.

[87] White , B. (1993, March 28). Special report: DeKalb: Black and white (first of two parts). The Atlanta Journal and Constitution. p. A12.

[88] Loupe, D. (1993, April 1). DeKalb school leaders attack report on race: Response: Letters to parents criticized the articles, and the superintendent said the stories were inaccurate. The Atlanta Journal and Constitution. p. F3.

[89] DeKalb black and white: What readers say about the schools. (1993, April 1). The Atlanta Journal and Constitution. p. A1.

[90] Schumaker, J. (1989, April 8). “White flight may not be caused by influx of blacks in DeKalb. The Atlanta Journal and Constitution. p. A17.

[91] M-to-M transfer regulations for DeKalb County schools, 1998-1999. [brochure].

[92] Harris, J. & Loupe, D. (1996, June 20). Case closed: What’s next for schools:

Desegregation suit’s dismissal raises questions for some. The Atlanta Journal and Constitution, p. A1.

[93] Cumming, D. (1997, December 9). Court refuses to hear DeKalb schools’ appeal. The Atlanta Journal and Constitution. p. C3.

[94] Brown v. Board of Education, 347 U.S. 483 (1954).

[95] Jackson, B. B. (1995). The effects of the majority to minority (M to M) program on African American students who transfer to predominantly Caucasian schools. (Doctoral dissertation, Georgia State University). pp. 120-126.

[96] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

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Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia – Part X: What does Brown v. Board of Education mean today?

Based upon current enrollment data, space will not be available at Chamblee, Druid Hills, Dunwoody, Lakeside and Tucker High Schools during the 1999-2000 school year for new M-to-M students.

- M-to-M Transfer Regulations for DeKalb County Schools, 1998-1999 [1]

In June of 1996, three and a half years after the case was remanded to the District Court, and 28 years after it was originally filed, the lawsuit against the DeKalb County School System came to an end.[2]

With the termination of court supervision came a new era for the school system. In theory, none of the measures that had been taken to satisfy the courts needed to be continued, but the school board – still majority-white – was now accountable to a majority-black constituency. The M-to-M program stayed in place. It had remained popular, reaching a peak in participation of 4961 in 1993-1994 school year. The program’s days appear to be numbered, however. As the number of majority-white schools dwindled in the county, available spots for African American students were becoming more scarce. Magnet programs that had been set up in the late 1980s to draw white students to majority-black schools were continued for the time being as well. These programs had never been a very successful integration tool, but were now seen as an opportunity for promoting high quality achievement. Emerging from the era of court-supervised integration, DeKalb’s legacy and the challenges it faced looked very different from the way they had 28 years earlier.

In 1997, DeKalb County’s school system was again in court, seeking a hearing before the U.S. Supreme Court on the issue of reimbursement by the state for the costs of the M-to-M program. The system had won a $34 million judgment in District Court, but then lost on appeal to the Eleventh Circuit. This time, the high court refused without comment to hear the case. Equality does not come cheaply.[3]

The Brown v. Board of Education decision had changed our understanding of “equal protection of the laws” and had opened a period of social change in which the courts became an active participant. [4] In some very important respects, the courts led the way through the minefield of desegregation. Citing the latest social science for support, the court in Brown forced a significant change in the social structure. As a result, most Americans have gained a greater appreciation for the importance of equality – elusive though it may be – in a competitive world. In more recent desegregation decisions, however, the court has increasingly been willing to step away from such an active role, and let local authorities control their own affairs. But have the goals of Brown actually been met? Indeed, is Brown still relevant?

Warren had based his finding that segregated schools for African Americans were inherently inferior upon evidence that is now more than a half a century old. It is worth asking whether circumstances have changed enough in the last 60 years to warrant a reexamination of the bases of that finding. There is a growing body of evidence demonstrating the negative effects that the desegregation of schools had upon some students.[5] Should psychological evidence be the determining factor in defining constitutional rights?

Warren pointed to the importance of education in the modern world. But just how important is it under our system of laws? In 1973, the court declined to rule that education is a fundamental right.[6] Had this decision predated Brown, could Warren have made the same argument?

Much has changed in 60 years, but in DeKalb County, both the civil rights era and the period of increasing conservatism that followed were marked by a consistent set of concerns on the part of its suburban residents. The chance for an improved quality of life drew the vast numbers of new residents into the county. The desire for a quality education compelled the original plaintiffs to seek a remedy in the federal courts. The opportunity to have a profound and forward-looking impact on the youth of the county drove participants in the later stages of the suit to push hard for busing. The desire to consolidate gains and minimize personal costs compelled the anti-busing parents to enter the lawsuit. All were seeking to improve their lives, and the lives of their children, and for a large part of the struggle, the federal courts were their battleground.

____________

[1] M-to-M transfer regulations for DeKalb County schools, 1998-1999. [brochure].

[2] Harris, J. & Loupe, D. (1996, June 20). Case closed: What’s next for schools:

Desegregation suit’s dismissal raises questions for some. The Atlanta Journal and Constitution, p. A1.

[3] Cumming, D. (1997, December 9). Court refuses to hear DeKalb schools’ appeal. The Atlanta Journal and Constitution. p. C3.

[4] Brown v. Board of Education, 347 U.S. 483 (1954).

[5] Jackson, B. B. (1995). The effects of the majority to minority (M to M) program on African American students who transfer to predominantly Caucasian schools. (Doctoral dissertation, Georgia State University). pp. 120-126.

[6] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

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Filed under school desegregation

Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia – Part IX: Facing the end of the court order

We are proud of our cultural diversity and believe it to be one of our strengths.

- DeKalb Partners in Education Foundation, Inc. [1]

On March 28, 1993, as federal court supervision of the DeKalb County School System’s desegregation program was coming to an end, the Atlanta Journal and Constitution began a series of articles on the changing demographics in DeKalb County schools. Entitled “DeKalb: Black and White,” the articles were sharply critical of the academic performance of the schools. The lead article in the series compared DeKalb’s schools to those of neighboring systems and found them lacking. Parents who were polled registered less satisfaction with the schools, per pupil expenditures were lower, and Iowa test scores were lower than in other metro Atlanta districts.[2]

Reaction to the articles was swift. The DeKalb school board sent letters home with students in an attempt to counter the negative message of the articles. Superintendent Robert Freeman wrote a letter to PTA leaders which stated in part:

To say our county is changing demographically is accurate and has been for 25 years. To say some people leave rather than deal with contemporary metropolitan America is accurate. It is not accurate to say that DeKalb schools are not innovative. Neither is it accurate to portray our achievements as low. Many positive things are happening.[3]

Meanwhile, readers of the articles took the opportunity to vent their feelings in columns devoted to their responses. Many expressed dissatisfaction with the policies of the school board, or outrage at the racism implicit in statements by school officials. Many more were alarmed and disappointed by the failure of DeKalb’s citizens to confront the challenges of an increasingly diverse populace, instead fleeing to private schools or moving out of the county.[4] One DeKalb native wrote that the issues presented by racial change are used as a mask for legitimate educational concerns. She asked:

Have the administrators become so tied up in the political red tape of this court order that there is little time left to concentrate on the real issue of making the schools the best they can be? Are the best teachers being hired – regardless of race – or are teachers being hired to fill a government-mandated quota?[5]

Regardless of one’s race, or position on the long-standing legal battles, clearly the quality of education was of growing concern to many citizens of DeKalb as the era of court-ordered desegregation was coming to an end.

____________

In Part X, we consider the question – what does Brown v. Board of Education mean today?

____________

[1] An open letter to citizens. Advertisement purchased by the Friends and Supporters of the DeKalb Partners in Education Foundation, Inc. (1993, April 8). The Decatur – DeKalb News/Era, p.l0A.

[2] White , B. (1993, March 28). Special report: DeKalb: Black and white (first of two parts). The Atlanta Journal and Constitution. p. A12.

[3] Loupe, D. (1993, April 1). DeKalb school leaders attack report on race: Response: Letters to parents criticized the articles, and the superintendent said the stories were inaccurate. The Atlanta Journal and Constitution. p. F3.

[4] DeKalb black and white: What readers say about the schools. (1993, April 1). The Atlanta Journal and Constitution. p. A1.

[5] Schumaker, J. (1989, April 8). “White flight may not be caused by influx of blacks in DeKalb. The Atlanta Journal and Constitution. p. A17.

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Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia – Part VIII: Freeman v. Pitts

Rex E. Lee, attorney for DeKalb County schools: The District Court found … that the racial imbalances that had resulted in the schools were “the result of demographic shifts” which … “were not caused by any action on the part of the DeKalb County School System.”

Justice Byron White: Well … for a time there was a racial balance?

Lee: That is correct, until such time as … these demographic changes came in.

Justice White: How long was that? Did it start … ?

Lee: Almost immediately. It started and has just continued since that time, and it continues today.

- Excerpt from oral arguments before the Supreme Court [1]

 

The decision in Freeman v. Pitts was handed down on March 31, 1992 with the opinion of the court written by Justice Kennedy. Overturning the 11th Circuit Court of Appeals decision, the court held that it was permissible for a District Court to relinquish control over aspects of a desegregation plan that have been accomplished even while other aspects are in noncompliance. While the concept of a “unitary system” is useful in achieving the goals first set out in Brown v. Board of Education,[2] the term does not appear in the Constitution, or have a rigid meaning which must be adhered to in every case.

The court again endorsed the Green criteria as guideposts for evaluating desegregation efforts (student assignment, faculty, staff, transportation, extracurricular activities, and facilities)[3] but pointed out that the variety of differences in local circumstances prohibited the use of inflexible rules. Equitable remedies require a balancing of individual and collective interests, and courts should not overstep their authority in fashioning remedies.

Citing the Spangler case[4] as an example of a court attempting to correct a problem that was outside of its purview, the court drew an analogy between the facts in that case and the demographic changes that had occurred in DeKalb. The Court of Appeals had exceeded its authority in requiring DeKalb to continue to satisfy all of the Green criteria simultaneously for a period of years if its good faith efforts continued in the problem areas that still remained.[5]

Justice Scalia wrote a concurrence in which he pointed out that most often, segregation is the result of a mix of public and private actions. The courts should not be so quick to assume that the state is the primary culprit.

Justice Souter wrote to express concern that, even where some of the Green factors are satisfied, if others are left unremedied, they may have a corrupting effect on the whole system. Before the District Court relinquishes control, it should find that there is no danger of this occurring.[6]

Justice Blackmun wrote a concurrence in which Justices O’Connor and Stevens joined, which echoed the points made by Scalia and Souter, but in stronger terms. Blackmun would have the District Court continue to monitor the system, even in areas over which there is no direct supervision, to ensure that resegregation does not occur. In addition, before a system may be released from supervision, it should have to prove that its actions had the effect of dismantling the dual system it had once maintained. A showing of good faith compliance should not be sufficient.[7]

The reaction in DeKalb was swift and emotional. Some parents saw the decision as a signal that equality in schools would never be achieved. It was the sudden and disappointing end to a decades-long struggle toward progress. Others saw it as a vindication of the efforts the school system had made for so many years. Those who had opposed a massive busing program were relieved. Government leaders expressed satisfaction with the decision, and predicted that development in the county would increase sharply in the coming years.[8]

The effect of the decision within the court system was to send the case back to the Court of Appeals. While the sort of broad remedy the Eleventh Circuit had ordered could now no longer be imposed, there were still issues remaining to be resolved. In December of 1992, the Court of Appeals remanded the case to the District Court for resolution of the issues of faculty and staff assignments, and other quality of education issues.[9]

____________

In Part IX, DeKalb begins to deal with the end of court-ordered desegregation.

____________

[1] The DeKalb school desegregation case: How court saw, heard the issues. (1991, December 12). The Atlanta Journal and Constitution. p. A8.

[2] Brown v. Board of Education, 347 U.S. 483 (1954).

[3] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[4] Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976).

[5] Freeman v. Pitts, 503 U.S. 467 (1992).

[6] Id.

[7] Id.

[8] Wagner, N. (1992, April 1). Voices: What’s next? Blacks not among residents sounding optimistic: The brighter side: Real estate and business people predict new growth for DeKalb. The Atlanta Journal and Constitution, p. A10.

[9] Morris, H. (1992, December 8). Appeals court apparently rules out busing in DeKalb. The Atlanta Journal and Constitution, p. Cl.

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Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia – Part VII: Limiting judicial authority

Authorizing and directing local government institutions to devise and implement remedies not only protects the functions of those institutions, but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems.

- Missouri v. Jenkins [1]

By the time the U.S. Supreme Court agreed to hear the DeKalb County school desegregation case, more than 35 years had passed since Brown v. Board of Education (1954) had held that segregation in public education was unconstitutional.[2]

In 1955, the court had ordered that local school authorities take steps to dismantle government-mandated segregation in schools “with all deliberate speed” and gave supervisory and enforcement powers to the federal courts.[3]

In 1968, the court ruled that a desegregation plan that relied entirely on voluntary efforts by parents and students was inadequate to overcome government violations of equal protection. The opinion in this case also identified six factors that would later come to be used as the measuring stick for determining whether a school system had achieved desegregation. [4]

In 1971, the court authorized a plan to achieve desegregation through mandatory busing on a massive scale across a large metropolitan school district. This case represented perhaps the high-water mark for the exercise of federal judicial authority over a local school system. [5]

But since the early 1970s, the main issue in many desegregation cases had involved the question of whether or when the goal of desegregation had been achieved, and the practical question of when a local school system could be free of direct supervision by the federal court.

In 1991, as the DeKalb desegregation case moved towards argument before the Supreme Court this issue of the limits of federal judicial authority over schools was the subject of two recent cases.

As part of its desegregation program, the Kansas City, Missouri School District (KCMSD) had instituted an expensive magnet program. The program proved too costly to pay for out of the revenues to which the system was entitled under state law, so the District Court ordered an increase in the local property tax in order to pay for it.

The Supreme Court, in Missouri v. Jenkins, held that the District Court had overstepped its authority by imposing the tax. Writing for the court, Justice White suggested that the District Court should have instead authorized or required the KCMSD to increase the tax, and enjoined the operation of state law that would have prevented it from doing so. Justice Kennedy was joined by three other justices, concurring in the judgment, but finding little substantive difference between a court-ordered tax and one authorized by the legislature under the threat of a court order. In any event, the decision signaled an unwillingness by the Supreme Court to tolerate creative expansions of judicial authority in desegregation cases.[6]

The school system in Oklahoma City had been in litigation since 1961, and its procedural history included a 1972 court order to desegregate and a 1977 finding by the District Court that the system had become unitary (no longer segregated). In 1984, after the school system eliminated its mandatory busing program and replaced it with a voluntary majority-to-minority program, a motion was filed to reopen the case. Plaintiffs argued that the 1972 order was still in effect and that the school system could not abandon its desegregation program. The Court of Appeals agreed, and held that “compliance alone cannot become the basis for modifying or dissolving the injunction.”

In Board of Education of Oklahoma City v. Dowell, the Supreme Court held that the 1977 finding that the system was unitary did not explicitly dissolve the 1972 desegregation order, and so it still was in force. However, the standard for deciding whether or not to release the system from court supervision was somewhat lower than the Court of Appeals had ruled. Courts should consider whether the school system had complied in good faith with the court order, and whether the traces of de jure segregation had been eliminated “to the extent practicable.” To make this determination, courts should refer to the criteria stated in the 1968 Green decision: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[7] Evidence of good faith compliance with previous orders should be considered in determining whether there is a continuing danger of unlawfulness.[8]

By October 7, 1991, when oral arguments were heard in the DeKalb school case, the court had been showing signs of increasing deference to local autonomy and an unwillingness to mandate solutions for problems that were beyond the control of the school systems.

____________

In Part VIII, the Supreme Court’s decision in Freeman v. Pitts gives DeKalb an escape from court-ordered desegregation.

____________

[1] Missouri v. Jenkins, 495 U.S. 33 at __ (1990).

[2] Brown v. Board of Education, 347 U.S. 483 (1954).

[3] Brown v. Board of Education, 349 U.S. 294 (1955).

[4] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 (1968).

[5] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

[6] Missouri v. Jenkins, 495 U.S. 33 (1990).

[7] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[8] Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991).

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Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia – Part VI: Students caught in the middle

I like you, Roger. You’re the one person in the county people hate more than they hate me.

- Robert R. Freeman, Superintendent, DeKalb County Schools [1]

 

The trial in July of 1987 to determine whether the DeKalb County School System (DCSS) had abolished its dual system of racially segregated schools included testimony from a witness with royal credentials. But hers was no Cinderella story.

Michelle Saunders, Redan’s first black homecoming queen, testified that after she won the 1987 Miss Redan High School pageant, a petition circulated around the school, demanding that her crown be taken away. Racial slurs appeared on the walls. The mood at the school was charged with tension. “When I walk in the door, I can feel the tension. I can feel it when I walk in the classroom. The main problem is the administration won’t address the problem,” Saunders testified.[2]

School officials denied that the situation was as bad as some of the witnesses’ statements indicated. Redan’s principal pointed out that Saunders had been elected homecoming queen by the majority-white senior class.[3] But clearly, the DCSS was concerned about the effects of racial tension. As it had done following the incidents at Columbia High School a decade earlier, the DCSS revised its discipline code to eliminate discretion in punishment and provide for uniform treatment of offenses.[4]

Critics charged that the system was not doing enough to reduce racial tensions. Suggestions that groups be set up to welcome transfer students were not acted upon, and recommendations for sensitivity training for teachers were never implemented. Meanwhile, black students in predominantly white schools tended to feel isolated and unwelcome. Little social interaction took place between students of different races. Unintended slights were often perceived as hostile gestures. Parents debated the value of the M-to-M program in terms of academic benefit versus social cost.[5]

DeKalb’s “Majority-to-Minority” (M-to-M) program allowed students who were members of the majority racial group at their home school to transfer to a school in which their group was in the minority. It had been the primary tool for school desegregation since it had been implemented in 1972. But it had taken several years to become effective due to inadequate notice of its availability, inadequate provision of transportation, and rules that created practical obstacles for families who wished to participate in the program. A 1976 federal court order had mandated changes in the program and had created a biracial committee to oversee the desegregation process. But now concerns were arising about the burden placed on children who spent hours on buses traveling to schools that held classes in trailers due to overcrowding. And there were continuing concerns about the program’s availability to those who wished to participate.

In February of 1988, the Biracial Committee recommended changes to be made in the brochures that explained the M-to-M program. Parents had been relying on word-of-mouth to decide where to send their children, and the most popular schools were becoming seriously overcrowded. In hopes of distributing children more evenly among the county’s schools, the committee recommended printing the number of available spaces at each school on the brochures.[6]

Some efforts to improve conditions at the schools were made more complicated by the court decisions. The swelling student population necessitated the use of trailers as temporary classrooms at many schools, and plans were being drawn up for the construction of new buildings. But due to the earlier ruling in the Redan II case, the DCSS was obligated to consider the desegregative effect of all its decisions concerning facilities. Requests for new trailers had to be approved by the Biracial Committee.[7]

In October of 1987, Superintendent Robert Freeman unveiled a six-year plan for reorganization of the county’s schools and construction of new facilities. The chief features of the plan included the construction of 11 new schools, the consolidation of high school attendance zones, and the creation of junior high schools (most of which would be housed in former high school facilities.)

Details of the consolidation plan concerned some parents. In some cases, high schools would be paired off, and one would be transformed into a junior high school that would feed the senior high. In other cases, a new junior high would be constructed within the attendance zone of an existing high school. This latter strategy seemed most often to be the employed if the high school was predominantly-black, virtually ensuring that the junior high school would be majority-black as well. Activist parents complained that black schools should be paired with white schools, to maximize the desegregative effect of the consolidation scheme. But the rapid changes in the county’s population complicated planning based on racial concerns.

Explaining the difficulty at a public meeting, Freeman acknowledged that a pairing of majority-black Avondale High School with majority-white Clarkston would result in a racially balanced student population today, but within a few years, both schools were predicted to be predominantly-black.[8]

Construction plans also raised some concerns. In 1990, plaintiffs in the lawsuit against the DCSS asked Judge O’Kelley to block construction of two new schools in rapidly-growing southeastern DeKalb until the resegregative effect of the new schools could be determined.[9]

The DCSS had been under instructions since the 1976 court order to assign teachers to all its schools in a manner that would reflect the racial composition of the county as a whole. With the District Court decision of 1988, however, it became evident that the disparate levels of teacher experience at the system’s schools would also have to be corrected.

In July of 1989, the DCSS conducted lotteries to select the veteran teachers that would be moved, then sent out letters to teachers at predominantly-black schools who had less than five years experience, asking if they would be willing to transfer to a predominantly-white school. Of the 140 veteran teachers selected, 114 reported to their new assignments. The remainder resigned or took early retirement.

Citizens complained about the loss to the school system that the resignations would bring and three teacher organizations filed suit to delay the transfers. But the new school year began without a hearing on the issue, and with the transfers accomplished, the issue became moot.[10]

By the mid-1980s, the leading spokesman for the plaintiffs on the ongoing court case was Roger Mills, the white parent of two black daughters enrolled in DeKalb schools. Mills had been involved with the suit since 1976, and was an outspoken advocate for aggressive means to accomplish the integration of the schools, including involuntary busing.

But opposition to this kind of drastic measure was growing among DeKalb’s African American community. In March of 1990, a group of black parents petitioned the court for permission to become plaintiffs. Claiming that the original plaintiffs cared more about racial quotas than quality education, the group argued that the interests of the parents of black schoolchildren in DeKalb were not being represented.[11]

In response to the introduction of the anti-busing parent group into the picture, the DeKalb chapter of the NAACP also sought to join the suit as plaintiffs. While the group had been involved with the case in a supportive role for years, its move now to become a party was seen by some as an effort to head off the kind of settlement that had occurred in Atlanta in 1973. According to a former attorney for the Atlanta office of the NAACP, the “Atlanta Compromise,” in which control of the school system was given to blacks in exchange for a promise not to institute mandatory busing, had been viewed with disfavor by the national office. The DeKalb NAACP would oppose desegregation plans that relied strictly on voluntary action.[12]

After a lengthy hearing in August of 1990, in which the merits of busing were explored at length and an official of the NAACP affirmed in open court her belief that the judge was racist, Judge O’Kelley handed down his ruling on the inclusion of new parties to the class action.[13] The group of anti-busing parents was allowed to join in the lawsuit. As to the NAACP, the judge held that they had failed to prove how their interests were not already being represented in the case. The group led by Roger Mills was allowed to remain a party as well. The judge praised Mills for his determined advocacy, but observed that he had a rather “paternalistic view” of his role.[14]

In February of 1991, the U.S. Supreme Court agreed to hear arguments in the DCSS’s appeal of the 1989 Eleventh Circuit ruling.

____________

In Part VII, as the DeKalb case moves towards the U.S. Supreme Court, the court further defines the limits of federal authority over desegregation.

____________

[1] Watts, R. A. (1989, December 14). Desegregation plaintiff, parents tangle at meeting. The Atlanta Journal and Constitution. p. G6.

[2] Green, C. (1987, July 23). Testimony ends in DeKalb school case. The Atlanta Journal and Constitution. p. C5.

[3] Id.

[4] DeKalb code gets a make-over. (1989, February 18). The Atlanta Journal and Constitution. p. A22.

[5] Watts, R. A. (1989, January 8). School program’s reviews mixed: Majority-to minority transfers bring praise, criticism. The Atlanta Journal and Constitution, p. Bl. See also Jackson. pp.62-119.

[6] White, B. (1988, February 25). Make the M-to-M brochures reflect school capacity, committee agrees. The Atlanta Journal and Constitution, p. AS.

[7] White, B. (1987, November 12). School system jumps back into the temporary classroom market. The Atlanta Journal and Constitution, p. A15.

[8] White, B. (1988, February 4). School plans draw a hard dose of criticism. The Atlanta Journal and Constitution. p. AI.

[9] Watts, R. A. (1990, December 13). Plaintiffs seek to block 2 schools in S. DeKalb. The Atlanta Journal and Constitution. p. A4.

[10] Watts, R. A. (1989, July 19). 3 teacher groups sue to delay transfers. The Atlanta Journal and Constitution. p. C2. Watts, R. A. (1989, January 8). DeKalb set to shuffle teachers north, south. The Atlanta Journal and Constitution. p. C3. Cowles, A. (1989, August 18). DeKalb’s teachers get settled: First day of school nears; resentment on lottery put aside. The Atlanta Journal and Constitution. p. C1.

[11] Watts, R. A. (1990, April 5). School system lawyers query plaintiffs’ status in desegregation suit. The Atlanta Journal and Constitution. p. A1.

[12] Watts, R. A. (1990, August 16). School uses hearing in fight over busing. The Atlanta Journal and Constitution. p. A1.

[13] Watts, R. A. (1990, August 9). Judge eager for decision on desegregation case plaintiffs. The Atlanta Journal and Constitution. p. D9. Watts, R. A. (1990, August 16). DeKalb NAACP official: Judge racist: Group trying to join desegregation suit. The Atlanta Journal and Constitution. p. A1.

[14] Watts, R. A. (1990, December 22). Anti-busing parents will join school desegregation lawsuit: 18 DeKalb blacks to be added as plaintiffs. The Atlanta Journal and Constitution. p, A1.

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Six Moving Targets at Once: School Desegregation in DeKalb County, Georgia – Part V: DeKalb seeks an end to federal supervision

The courts have consistently recognized that a previously segregated dual school system does not automatically become desegregated just because a constitutionally acceptable plan is adopted and implemented

- 11th Circuit Court of Appeals [1]

 

The African American population in DeKalb County continued to grow throughout the 1980s and 1990s, and participation in the M-to-M program increased. The number of M-to-M students in the 1977-1978 school year was 534, but this number jumped to 1229 the following year. By 1981-1982, the number had topped 2000, and it passed the 4000 mark in 1986.[2]

Meanwhile, the white population in certain parts of the county continued to grow as well. Redan High School was operating in excess of its capacity by the 1978-1979 school year. By 1984-1985, the overflow, housed in trailers on the school grounds, numbered 808 students. The DeKalb County School System (DCSS) planned to build a new school in Redan’s district (known as Redan II) to house the 8th and 9th grade classes and alleviate some of the pressure.

In 1983, the plaintiffs in the class action suit filed a motion seeking to enjoin the DCSS from building a new facility. They alleged that the system was seeking to avoid assigning white students in Redan’s district to neighboring predominantly-black schools.[3]

This argument had a familiar ring. It had been alleged in the Swann case[4] that the Charlotte, North Carolina school district had furthered segregation by constructing new schools in all-black neighborhoods and then limiting enrollment to accommodate only the immediate area. In that 1971 case, the U.S. Supreme Court had ordered a massive busing program to effect integration across the district.

In Atlanta’s U.S. District Court, the ongoing case had been taken over in January of 1981 by Judge William C. O’Kelley. In his February 22, 1984 opinion, Judge O’Kelley found that the DCSS had been converted from a dual to a unitary system in 1969. Thus, the presumption that the existence of a single-race school was evidence of intent to discriminate no longer applied. Having failed to prove discriminatory intent, the plaintiffs could not prevail. [5]

The Eleventh Circuit Court of Appeals saw things differently. In a strongly worded opinion dated March 22, 1985, the court held that only after a hearing could a finding be issued that a school system had become unitary. All interested parties must have notice and an opportunity to be heard before the withdrawal of court supervision. As to the Redan II plan, the court found that the DCSS had an affirmative duty to consider the impact upon the desegregation of the system in any building plans it made. If that impact was a tendency toward resegregation, the DCSS might be faced with an injunction to refrain from using the new facility (which was, by this time, under construction.)[6]

The Redan II episode offers perhaps the best example of the dramatic changes in population then occurring in DeKalb. By October of 1985, when Judge O’Kelley ruled again in the case, the Redan school district had a 40% black population. Clearly, opening Redan II (now renamed Miller Grove) would not have a resegregative effect and the school system was approved to go forward.[7]

In January of 1986, the DCSS filed a motion in District Court seeking a determination that the system had become unitary and an end to court supervision of the schools. The trial on the issue was held over three weeks in July of 1987. Testimony was heard which highlighted the inequities that remained in DeKalb’s schools. Teachers in majority-black schools had on average 4.9 years of experience, compared to 8.9 years in predominantly white schools. Fewer advanced placement courses were offered in majority-black schools, and per-pupil expenditures were lower in those schools.[8]

On June 30, 1988, Judge O’Kelley issued his ruling denying DeKalb’s motion. Holding that the system had fallen short in the areas of equalizing per-pupil expenditures, teacher experience, and minority representation among teachers and school administrators, the court nonetheless found that the system had satisfied other criteria for achieving unitary status. No longer would the court supervise the DCSS in the areas of student assignment, transportation, and extracurricular activities. Plaintiffs appealed, arguing that the DCSS should not be released from supervision in the area of student assignment.[9]

The Court of Appeals issued its opinion in October of 1989. The court held that the best approach for determining if a school system had achieved unitary status was to look at the six factors enunciated in the 1968 Green decision: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.[10] If a system was in compliance in all six areas simultaneously for a period of at least three years, a District Court could find that it had eliminated all vestiges of its dual system. If not, the District Court must retain jurisdiction.[11]

The Eleventh Circuit was not the only appellate court that had ruled on this issue. In a similar 1987 case, the First Circuit adopted the same kind of incremental approach that Judge O’Kelley had used, and that the 11th Circuit had rejected.[12]

The DCSS decided to appeal the ruling to the U.S. Supreme Court, hoping that the court would accept the case in order to reconcile the different rulings of the First and Eleventh circuits.

There was much at stake. Under the Eleventh Circuit ruling as it stood, the DCSS faced the burdensome obligation of overcoming any inequities caused by the dramatic demographic changes occurring within the county. By 1986, the black population in DeKalb schools had reached 47% and was continuing to grow.[13]

Along with changes in the population, came some new ideas about how to deal with the problem of inequality in the county’s schools.

____________

In Part VI, activists and administrators grapple with changing circumstances, with students caught in the middle.

____________

[1] Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985).

[2] DeKaib County School System Majority-to-Minority (M-to-M) Program. (1997).

[3] Pitts v. Freeman, 755 F.2d 1423, 1425 (11th Cir. 1985).

[4] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 at 28 (1971).

[5] Pitts v. Freeman, Civil Action No. 11946 (N.D.Ga., February 22,1984).

[6] Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985).

[7] Woolner, A. (1985, November 1). DeKalb school system can use Redan II facility, U.S. judge says. The Atlanta Journal and Constitution. p. A12

[8] Green, C. (1987, July 17). Witness cites racial gap in DeKalb system. The Atlanta Journal and Constitution. p. A17.

[9] Pitts by Pitts v. Freeman, 887 F.2d 1438,1443-1444 (l1thCir.1989).

[10] Green v. County School Board of New Kent County Virginia, 391 U.S. 430 at 435 (1968).

[11] Pitts by Pitts v. Freeman, 887 F.2d 1438,1446 (11th Cir. 1989).

[12] Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987).

[13] Freeman v. Pitts, 503 U.S. 467, 476 (1992).

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