December 01, 1998
Reproduced below is a recent letter that Linda Chavez, president of the Center for Equal Opportunity, sent to the federal judges whose jurisdictions still include hundreds of schools districts under desegregation orders.
Members of the Federalist Society who are interested in the issues raised by her letter—for purposes of pro bono participation (on behalf of the school district, a parent or child, or teacher) or simply as concerned citizens—can learn from CEO whether a school district near them is under such a court order. Please contact Hugh Joseph Beard at the Center for Equal Opportunity for a list of school districts: 202/639-0803 (ph), 202/639-0827 (fax), firstname.lastname@example.org, 815 15th St., N.W., Suite 928, Washington, D.C. 20005.
October 5, 1998
Recently the Center for Equal Opportunity obtained a copy of a list compiled by the United States Department of Justice of school desegregation cases, one or more of which may be under your jurisdiction. According to the list, there are literally hundreds of school districts that remain under court order for desegregation.
This strikes us as a very odd situation, some 44 years after the decision in Brown v. Board of Education, and 34 years after Title IV of the Civil Rights Act of 1964 authorized and directed the Department of Justice to initiate and obtain full desegregation. Are these school districts not yet desegregated? If they are not, then this is inexcusable. But if they are, then why are they still under court order? This is inexcusable, too. Among other things, it would mean that these school districts would be barred not only from assigning students on the basis of neighborhood schools and assigning teachers on the basis of their respective preferences, it would also make it difficult or impossible to adopt reforms such as charter schools or school vouchers. This state of affairs compromises the educational opportunities of all children—black, white, Hispanic, and Asian.
In recent cases, the Supreme Court has noted in strong language that the jurisdiction of the federal courts is limited both temporally and substantively to remedying intentional school segregation. For instance, in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 247-48 (1991), the Court emphasized that the decrees entered in school desegregation cases "are not intended to operate in perpetuity." Rather, "[f]rom the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." The Court went on to stress that "'necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.'" (Quoting Spangler v. Pasadena City Board of Education, 611 F.2d 1239, 1246 n.5 (9th Cir. 1979) (Kennedy, J., concurring).)
My concern is strictly as a citizen. Neither I nor any organization with which I am associated is a party or amicus before your court or before any other court in a school desegregation matter.
Moreover, we know that in many cases the parties themselves are not eager to reopen the cases, to review the remedies entered years if not decades ago, and to ascertain the current constitutional status of the formerly dual school districts. These orders have been a crutch for the local school boards, obviating the need for hard decisions regarding school reform, providing an easy excuse for poor academic performance, and justifying all forms of bureaucratic inertia. The other parties to the litigation—usually civil rights groups and the Department of Justice itself—have their own, institutional and ideological, reasons for wanting judicial supervision to continue indefinitely.
Nevertheless, the close and proper control of its docket is a singularly important obligation of the court. This is true for all cases—wouldn't a judge wonder about the status of any 20-year-old case?—but especially in matters touching upon two constitutional imperatives implicated here: the Fourteenth Amendment's guarantee of an educational system that does not use racial or ethnic classifications, and the Tenth Amendment's promise of a locally controlled school system.
We understand that, accordingly, many judges have sua sponte reviewed the status of their school desegregation cases, to ascertain whether a continued judicial role exceeds their Article III authority.
I attach a photocopy of those pages of the Justice Department's list that include cases filed in your judicial district. Please note that this list includes only those cases in which the United States Department of Justice participated in some formal capacity; it does not include cases of like status brought solely by private parties. Neither I, nor apparently the United States Department of Justice, knows precisely how many cases fall into this category; perhaps you can determine this, too.
In any event, we would urge your honor to look into this matter. Either students are still being sent to non-unitary segregated schools, or their school boards and their educational opportunities are being hamstrung by judicial decrees that should have been dissolved years ago. The time is overdue for the court to ask the parties to show cause why these school districts should not be declared unitary, the cases dismissed, full authority for making educational decisions returned to the local school boards, and the federal judicial role to end.
With best regards, I am,
Very truly yours,
Center for Equal Opportunity