Accountability and Desegregation: Brown and Its Legacy

Daniel, Philip T K

Brown v. Board of Education (Brown I) was decided in 1954 by the United States Supreme Court to order the desegregation of students by race in public schools. Opposition to this order occurred in many of the states as well as from the Office of the President in the 1980s, Over time, alternatives to educating students have surfaced, some of which have the potential for under-mining the original ruling in the Brown decision. National support of education has come in the form of spending legislation that favors accountability and achievement over racial equity with newly funded schools virtually free to carry on the same discrimination as in the past. This article offers an analysis of these trends in American education, exposing the paradox of how an emphasis on supposed achievement trumps equality with quality. Within the current government activity, students of color will be doubtful recipients of either equality of opportunity or greater educator accountability.

INTRODUCTION

American education from its privately sponsored beginnings was shrouded in a competitive atmosphere, focusing on the best and the brightest, with the idea that students must be the successors and eventual caretakers of the nation's leadership future (Smith, 1776). As a nationwide concept, publicly supported education was forged in the late 19th and early 20th centuries (Goldstein, Gee, & Daniel, 1995). From its inception, however, students of color were scarcely included; through the 1950s such students faced a very limited education or a very segregated education based on state law and 19th century judicial doctrine (Daniel, 1980). The United States Supreme Court decision in Brown sought to arrest this trend and announced that the various states must cease discriminatory practices and educate all students on equal terms. The Court also overturned itself, moving from a ruling that imposed separation of the races to one where such differentiation was deemed to be unconstitutional (Plessy v. Ferguson, 1896). Just about the time of this proposed judicially ordered desegregation, however, America's schools were perceived as being in a state of crisis. On the one hand, public schools were failing in the successful promotion of achievement for students, and, on the other, school-choice options for improvement were sorely lacking in the country. This collective view has been perpetuated with various reports condemning the inadequacy of education notably for students most in peril within the current system. .Accountability and choice have become the new by-words in American education with each promoting reform for all pupils, especially at-risk students and students of color. On this 50th anniversary of the decision of Brown v. Board of Education (Brown I) it is a fitting imperative that there be an examination of the value of education especially since the quality of the experience helps to define our lives as well as our quotidian existence.

This article focuses on the intersection of the concepts of accountability and choice, denoting their impact on students of color in the United States. The impact of choice and accountability on desegregation has been largely ignored by legal scholarship. Moreover, while much has been written on the education of students of color, only a modest amount of research has focused on whether charter schools have the capacity to ameliorate both the prospect of educational progress and the continued problem of racial desegregation. Initial sections of the current study examine government in the advancement of appropriate educational reform for all students. This research also addresses American education in terms of reactions to reform; this includes examination of legislation addressing academic accountability as well as judicial response to the country's enduring segregation of students by race. Questions remain, for example, as to whether accountability and reform foster student achievement at the sacrifice of educational equality.

ACCOUNTABILITY AND REFORM

The National Commission on Excellence in Education gave impetus and prominence to the modern movement toward American national and statewide accountability standards (Edgewood v. Menof, 1995) with its commentary in a report sponsored by the United States Department of Education entitled, A Nation at Risk: The Imperative for Educational Reform (National Commission, 1983). The report deplored the mediocrity of education offered in America's public schools and argued that unless reform was imposed through higher educational standards, "the education skills of [current K-12 students] will not surpass, will not equal, will not even approach, those of their parents" (National Commission, p. 11). The report continued with the admonition that "our once unchallenged preeminence in commerce, industry, science, and technological innovation is being overtaken by competitors throughout the world" (National Commission, p. 5). The way to ameliorate this problem, according to government officials reading the report, was to initiate reforms demanding demonstrated accountability, based on measurable goals and objectlives, in a rigorous curriculum; especially in reading, math, and the sciences in the nation's schools. Student success would be measured through progress reports based on uniform, statewide administered tests. This accountability would involve all of the actors in the school system including administrators, teachers, and parents. Educators would face not only rewards but possible punishment in the form of "reconstitution of classes or whole schools" (Rozmus, 1998, p. 104) as well as the sanctions of lost licenses or even professional positions (Daniel & Nance, 2002). The process of school reform was spurred on by those in the highest level of government decision making. During the Reagan administration, for example, educational reformers with ties to the White House began a crusade to raise educational standards throughout the country using a national mode (Chambers, 1987). This call was continued in presidential leadership with the introduction of a national education reform package known as America 2000, "Our future depends on education reform, on our ability to revolutionize, literally reinvent our schools, to take that revolution beyond the four walls of the classroom, transform our attitudes and ideas, the way we think about education" (Bush, 1992).

This meant that national support of public education in the United States would profoundly change from the social programs approach of the Elementary and secondary Education Act of 1965 targeting school lunches, appropriate transportation, and remedial instruction of the administration of former President Lyndon Johnson (Elementary and secondary Education Act) to one which would be delimited through quantitative measurement and improved achievement of all students through the Improving America's Schools Act (1996) of the administration of former President William Clinton (Improving America's Schools Act, 1996). This profound transformation resulted in very stringent educational regulations and domination over the curriculum, educational planning, and the delivery of instruction in every school district receiving federal funds (No Child Left Behind [NCLB], 2002).

The Twin Pillars of Accountability

The contemporary American experiment in accountability, based on student achievement, is currently illuminated by two major governmental sponsored educational pillars. The first involves universal educational standards for each grade level and high stakes testing through proficiency tests for every student. The second pillar creates a system of alternatives if the state-run public schools do not show accountability through progress of students. This is the element of educational choice, through school vouchers, charter schools, and the like where parents gain the privilege of selecting schools for their children that advertise and promote positive academic achievement. It is a competitive model of education where tax dollars traditionally allocated to established public schools are now redirected to private and religious institutions or state charted institutions that promise educational excellence and encourage greater community involvement in the process of educational programming and diurnal instruction (Daniel, 1993). It is also an approach which has raised issues about racial discrimination. Specifically, "choice" alternatives were established or perpetuated to counter the Supreme Court order in Brown v. Board of Education (Brown I) to desegregate the schools. Prominent researchers have written that "[choice, particularly] charter schools will [today] increase the growing ethnic segregation in American schools" (Minow, 1999, p. 283) and "...are predicated in part on the repudiation of methods and results of law-driven educational equality efforts like school desegregation litigation" (Brown-Nagin, 2000, p. 756). These symbiotic approaches to education, accountability and choice, will be described in turn together with a critical analysis that, at best, establishes each as ambivalent approaches in the pedagogical enterprise.

Accountability and Testing

At one level, accountability represents a response to poor study and work skills as well as substandard overall test scores on the part of all students, but especially those representing protected populations. Nonetheless, these accountability experiments actually began in a few of the states where they acquired voter support during the latter part of the 1980s and 1990s (Heubert & Hauser, 1999). In 2002, the United States Congress, relying on the perceived success of these programs in states such as Ohio, Texas, and North Carolina, radically restructured federal funding of education by imposing new accountability procedures on every state (Ravitch, 2001). The new legislation, No Child Left Behind Act, is a federal spending statute authorizing and combining under one rubric those funds to be allocated for K-12 education programs (NCLB, 2002). Although the Act impacts all school districts and all public school students, the legislation targets schools that receive funds from Title I of the Elementary and secondary Education Act of 1965 (1965). Those funds are directed to schools with the highest proportions of low-income families. Through the "spending clause" (U.S. Constitution, 1788) of the United States Constitution, the federal government has extended itself into American education on a national level never before experienced. As a profound shift of authority over educational policy tilted toward the national government and away from the states, this national mandate prescribes accountability guidelines for states, districts, and their schools.

For example, within the core of NCLB a number of measures are designed to drive broad gains in student achievement and to hold states, school districts, schools and school personnel more accountable for student progress. States must establish "challenging academic content standards" and "student achievement standards" for an adequate education for all students (NCLB, 2002). For example, beginning in the 2002-2003 academic year, states had to furnish annual report cards showing a range of information, including student achievement for students and for targeted ethnic and socioeconomic populations; this report card responsibility also had to be demonstrated through school by school data (NCLB, 2002). Furthermore, by the year 2005-2006, states must begin testing students in grades 3-12 against statewide standards in literacy, mathematics, and science (NCLB, 2002). The tests must be aligned with state academic standards and a sample of 4th and 8th graders in each state must participate in the National Assessment of Educational Progress testing program in reading and math to form year-to-year comparisons of achievement (NCLB, 2002). With the national NCLB mandate, states must bring all students up to the proficient level on state tests. Individual schools must meet state adequate yearly progress targets toward the proficiency level goal (based on a formula spelled out by law) for both the student population as a whole and certain demographic populations (NCLB, 2002). In addition, beginning in 2002-2003, all new teachers hired with federal Title I money had to demonstrate that they were highly qualified through passing the respective state's licensure test (NCLB, 2002), and, by the end of 2005-2006, every teacher employed in core content areas working in a public school must be "highly qualified" in the subject; under law, "highly qualified" means the teacher is licensed and demonstrably proficient in the subject matter (NCLB, 2002).

Each year, local school districts are compelled to use the results of the annual statewide standardized tests to review the progress of its schools, and its students. These results must be widely disseminated to school personnel, parents, and the community. Of importance to note is that failures in any of the above may cause the loss of federal funds; moreover, these dollars may go to parents in order to make other educational choices for their children, including charter and private schools, but, specifically, student options are expanded in that those who do not improve their scores within two years may transfer to another school within the district (NCLB, 2002). If improvement does not occur in three years, students, especially low-income students, may use the federal funds going to the school district to purchase supplementary educational services from educational providers from the public or private sector (NCLB, 2002). Continued failures could cause corrective action against offending schools, including the demotion or termination of school personnel (accountability) or the "reconstitution" of schools where whole staffs may be relocated (NCLB, 2002). Failure of achievement may result in imposition of accreditation sanctions, including the closing of schools, the de-licensure of teachers and administrators, and the termination of teachers and administrators (Texas v. United States, 1998). Moreover, schools whose students fail to meet appropriate achievement standards may be taken over by private management companies (NCLB, 2002). Accountability for educators has the impact of a stick, rather than a carrot, especially if proficiency test scores demonstrate slow student progress. The federal government, hence, has presented the states with a Hobbesian choice-improve student scores or reconstitute school personnel in district buildings.

MUTED SUCCESS

The No Child Left Behind legislation provides the withholding of federal funds from states that have not fulfilled requirements for a successful student achievement program. While states are compelled to report performance and progress, there is no provision and little detail in the legislation for federal monitoring or oversight of the state process. States must create programs and report the status of tests and the outcomes of such testing to the United States Department of Education. This is submission data, self-selected by school authorities, which results from the mandate of creating a state accountability system for the purpose of ensuring that school districts and their schools make adequate yearly progress (NCLB, 2002). The U.S. secretary of Education has the discretion to sanction a state for not reporting appropriately as regards students, especially members of targeted populations. While the data are voluminous, time-consuming, and costly to produce, there is no real federal determination as to whether the information is accurate. The enforcement mechanism is only triggered when a state fails to submit the data, the testing instruments, and the standards used for measuring and monitoring progress in a timely manner.

States and municipalities have complained bitterly about this process. The claim is that all of this information is to be collected with no oversight or direction from the governmental entity demanding the activity. A number of states have criticized the law since they could find themselves without federal funds if they test less than 100% of the targeted populations of students in a year (Paulson, 2004). Some states are critical because of what-they perceive as national intrusion into a state-based responsibility (Paulson, 2004). The criticism most heard, however, is that state government is responsible for funding this program (Paulson, 2004). For example, "[a] recent Ohio study concluded [that NCLB] would cost the state $1.5 billion a year to achieve 100% proficiency (a theoretical goal most educators see as impossible)[;][s]tates worry that, amid their own tight budgets, they'll pay for tutoring, transferring, and other mandates (Paulson, 2004)." This additional educational cost to states has caused school districts in Vermont and Connecticut to refuse federal funds for NCLB (Paulson, 2004).

The criticism has a more pernicious element, however. While states or school districts may loose federal money, educators have the potential of being transferred, punished, or moved completely out of the profession for lack of licensure. The legislation exhorts teachers and administrators to improve the performance of students; failing this mandate, the accountability movement through No Child Left Behind permits school officials to terminate personnel who do not reach stated goals for student achievement. Such legislation profoundly effects the evaluation of school personnel at every level. Within this statute, protections fall to the most minimalist level in a produce or perish atmosphere. Clearly, this is the trend in American public school education; school teachers and administrators are the country's academic barometer, and the mercurial measurement of student success or failure will determine just how much such professionals will be held accountable. Said differently, the "accountability" movement in the states permits school officials to sanction or even terminate educators who do not demonstrate student achievement or who do not meet the objectives of a particular reform movement.

For example, the Commonwealth of Massachusetts has enacted laws consistent with the educational accountability movement. A principal was terminated for failing to improve student achievement at a high school (Marlborough School Committee v. Morley, 1996). His school was required to show student achievement in mathematics, reading, citizenship, and technology. School officials in the case argued that state law, modified to address accountability in schools, permitted the dismissal of principals for any reason that is not "arbitrary, irrational, unreasonable, or irrelevant to the.. .task of building up and maintaining an efficient school system" (Marborough School Committee v. Morley, 1996, p. 4). A state appeals court agreed with the school officials (Marborough School Committee v. Morley, 1996). In its finding, the court concentrated on the state's major objective in fashioning new law, promoting public schools' delivery of high quality education to all students. This required school principals to create a process emphasizing the achievement of established performance objectives for all students and creating a mechanism for monitoring progress toward those goals. The new law also established sanctions, one of which was dismissal, for administrators who could not demonstrate such achievement. According to the court, principals were "at-will" employees under contract to deliver on student progress. At-will employees may be dismissed "for good cause, bad cause or no cause... without being guilty of a legal wrong" (Marborough School Committee v. Morley, 1996, p. 4) These educators serve exclusively at the pleasure of their respective Boards of Education with no tenure privileges and no collective bargaining protection (Sperry, Daniel, Huefner, & Gee, 1998).

In another accountability case a local school council expressed concerns about the success of a school principal's school improvement plan, particularly that portion on how to raise student skill levels through testing assessments (Newton v. Chicago School Reform Board of Trustees, 2000). The state school code provided for the removal and replacement of school principals who fail to make adequate progress in correcting academic deficiencies among students. Upon removal from his position, the principal alleged a deprivation of a property interest and the denial of due process of law. Focusing on the fact that amendments to the state school code emphasizing student achievement simultaneously reduced administrative, due process protection; a state appeals court stated that the principal had sufficient notice of his employment protections. As such, the principal had to overcome a presumption of good faith, honesty, and integrity on the part of the local school council and the larger city school board. To overcome this presumption, the court stated that a school administrator had to produce substantial evidence of actual or potential bias, such as evidence of a pecuniary interest in the proceeding, personal animosity, or actual prejudice. The court found no such bias; instead, there was evidence that the council had serious concerns about the principal's ability to appropriately increase student achievement, and it was reasonable for the school district to remove him (Newton v. Chicago School Reform Board of Trustees, 2000, p. 1).

The accountability approach buttressing the No Child Left Behind Act (2002) has its impetus in a number of states, not the least of which is Texas. The Texas State Assembly enacted comprehensive legislation holding school districts accountable for student achievement in public schools (Texas Education Code, 2002). As such, local school officials are subject to sanctions and these include: (a) public notice of school district student achievement deficiencies, (b) unannounced on-site investigations by accreditation teams, and (c) state education agency monitoring of the success or failure of school boards and superintendents in regard meeting achievement standards. If the weaknesses persist, the state education agency may appoint a master to oversee local school district operations or reconstitute school board membership so as to exercise the powers and duties of that governing body. The legislation provides that if a school district is rated academically unacceptable for two or more years, educators may be removed and the district can be annexed to one or more adjoining districts. In a case decided on other grounds, the United States Supreme Court examined the Texas legislation and determined that accountability in education is very much a state function and such sanctions fall squarely within legislative authority and prerogative (Texas v. United States, 1998). In other words, if a school district fails to meet state standards for student achievement, state government may use the least intrusive means to support improvement. The Court also approved more intrusive means within state legislation including the take over of school districts by private entities when improvement does not occur over the course of two years or more.

Local school districts across the country must be cognizant of this holding as it places accountability squarely within the powers of state policy makers and demonstrates that severe sanctions against educators may be supported by the courts, that is, absent evidence of positive and measurable student achievement. Almost all states, under the banner of accountability, have enacted legislation creating greater forms of personnel assessment. The cases herein indicate that school personnel may face formidable review for failing to uphold expectations related to student achievement. Such evaluation may result in further scrutiny on all work assignments and even termination.

Professional educators, based on this rendition of recent case law, realize they are not at the center of this accountability policy, and, more importantly, they are not even part of the policy paradigm. As this author has written in other research pertaining to the accountability scheme, "[pjolicy made at a distance from those who must implement it and from those who must live it rarely, if ever, achieves the objectives of the policyf;] [pjolicy formulated outside of education by legislators and executives (through legislation and state or provincial mandates) tends to be blunted if there is no involvement of the educational professionals at each level" (Daniel & Nance, 2002, p. 211). The motivation, hence, for teachers is to meet the policy, implement as much as possible, and to make the best of more legislative imposition devoid of educator feedback. This is often at the expense of the very population at the center of the legislation.

Moreover, as teachers, according to one study, have sought transfers to schools with high achieving populations of students; such students are typically White and middle to high income. When teacher transfers are granted, the receiving school tends to have student achievement rates of as much as 7-10% over the sending institution. The request for transfers is also impacted by a desire for better facilities, potential bonuses for success, and fewer disciplinary problems. No matter the motive, the result is that the most qualified and experienced teachers seek to escape schools that face accountability sanctions or the potential punishment of reconstitution, leaving low performing schools with low performing and less competent educators. While it is too soon to determine the impact of the law, this outcome (involving the transfer activity of teachers) is at cross-purposes with the intent of the No Child Left Behind accountability legislation, the mission of which is to enhance, rather than detract from, the educational well being of at risk students.

Accountability and Choice: The Impact on Racial Desegregation

The thrust toward accountability in American public school education has targeted children of color, especially those in low-income families (NCLB, 2002). Presidential administrations over the past 50 years have promoted school choice (Daniel, 1993) as furthering the issue of accountability, so as to aid all students, but especially those viewed as most vulnerable hi the current public school system. The administration of George W. Bush included a plan for a number of school choice options in the original proposal to the United States Congress for the No Child Left Behind Act (NCLB, 2002). These encompassed tuition vouchers for any school, public or private, tax credits and charter school options. The most contemporary version of the Act has provisions on school choice, involving charter schools, which permit students to transfer from public schools classified as "needing improvement or failing" to schools that offer better academic alternatives. There is also a credit enhancement provision for "federal funds to be used as collateral to facilitate the ability of charter schools to borrow funds to address the cost of acquiring, constructing, and renovating facilities" (Mead, 2003, p. 359). Federal legislatures and executive branch officials, therefore, clearly promote choice in the NCLB Act (2002); a mandate has emerged that government supported competition, both public and private, is the order of the day in American education.

The executive and legislative branches of government are supported in their views by proponents of school choice on either side of the political spectrum; there is strong advocacy for school choice, especially for marginalized students. Supporters of educational choice argue that it enables low-income students and students of color to achieve educational equity and opportunities previously denied them because of economic status (Zelman v. Simmons-Harris, 2002). The rationale is that such students are victims of neighborhood schools, because they must deal with an "intellectually starved curriculum, a disproportionate track, and the stigma of being less-capable learners[;] choice proponents suggest that if given innovative choices, parents will elect to leave the local school for more effective options" (Daniel, 1993, p. 30). With bipartisan political support, 41 states across the country have enacted legislation authorizing educational choice (Center for Educational Reform, 2004). Those with no charter school legislation include Alabama, Kentucky, Maine, Montana, Nebraska, North Dakota, South Dakota, Vermont, and West Virginia. By far, the choice option with the most popularity involves charter schools, and presently there are almost 700,000 students in approximately 2,700 such schools in operation in the United States (U.S. Charter Schools, 2004). In fact, the state of Michigan can boast that its charter school experiment contains the largest number of students in an approved curricular enterprise; the charter schools student body is more numerous than the largest school district in the state and almost half the population are students of color (U.S. Charter Schools, 2004).

Choice options to promote better schools have not been without opposition. There is some question as to whether the emphasis toward choice, particularly charter schools, will be found to have equal protection consequences with such schools being overly identified by race. The United States Supreme Court has rendered a very ambivalent message concerning discrimination against students based on race; however, and charter school educators would do well to effectively navigate this judicial whim.

BROWN AND ITS PROGENY

As noted, the selection of "choice" plans as a way of addressing issues involving the achievement of American school children has faced legal challenges relative to concerns about desegregation. States in the South and North created alternative student assignment plans to avoid court mandates for integration.

National school desegregation by Court Order began with Brown v. Board of Education which held that de jure segregation in public education was unconstitutional (Brown I, 1954). The U.S. Supreme Court intended that the Brown decision eliminate single-race schools and lead to integration, but Brown can be read in more than one way. Did the unanimous opinion in that case demand racial equity in schools, or did it simply require relative equality of educational opportunity? Under the former reading, mostly one-race schools are not permissible; under the latter (a major issue for charter schools today), they are permissible.

The Brown decision consisted of two opinions: the first (Brown I, 1954) provided the legal underpinnings for desegregation, while the second (Brown II, 1955) implemented the tenets of the first. In Brown /, a unanimous Court held that school segregation denied plaintiffs equal protection of the law as mandated by the 14th Amendment. The Court first noted that cases construing the 14th Amendment precluded all state-imposed discrimination against African- Americans. Writing for the Court, Chief Justice Earl Warren chronicled the erosion of Plessy v. Ferguson, which in 1896 solidified the doctrine of "separate but equal" in public accommodations among the races, then rebutted its central tenets by citing modern psychological studies that demonstrated the detrimental effect segregation had on Black schoolchildren. In ruling that de jure separation of students in public schools can never be constitutional, the Court ushered in the modern era of school integration.

Unfortunately, Brown II failed to provide much direction to the lower courts. Although the Supreme Court held that the school district involved in the litigation had to proceed with "all deliberate speed" in desegregating their schools, the pace of desegregation remained slow 15 years after Brown I. Many judges, interpreting the phrase "all deliberate speed," emphasized the efforts of Blacks who transferred into mostly White schools (Read, 1975). A school district's compliance with Brown often merely meant offering "freedom-of-choice" plans which allowed courageous Blacks to enter White schools; few Whites entered the previously all-Black schools.

In Green v. New Kent County School Board (Green, 1968) the Court examined a "freedom-of-choice" plan in the southern state of Virginia. The Court found such plans unacceptable as a sufficient step in the transition to a racially unitary school system (Green, 1968). Even though earlier Supreme Court decisions focused on providing Black students the opportunity to attend all-White schools, the Court held that these goals were only a first step (Green, 1968). New Kent County had not acted with deliberate speed in desegregating its schools; it adopted its freedom-ofchoice plan 11 years after Brown I (Green, 1968). In its examination of the freedom-of-choice plans, the Court stated that such plans are not automatically unconstitutional (Green, 1968) and that:

Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonably available other ways, such for illustration [sic] as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, "freedom of choice" must be held unacceptable. (Green, p. 440)

The Court further determined that school systems must satisfy seven factors in order to comply with a desegregation order. Known to later courts as the "Green factors," they require that: (a) students of all races receive the same quality education, (b) administrator and teacher assignments be race neutral, (c) student assignments be race neutral, (d) all students be given equal access to the school transportation system, (e) all schools receive equitable allocations of resources, (f) school buildings and facilities be of equal quality, and (g) all students be given equal access to extracurricular activities (Green, 1968). The Court concluded that the school district had not satisfied these factors and then required New Kent County to formulate a new plan for desegregation that would result in the elimination of racially identifiable schools (Green, 1968, p. 442).

Until 1971, Supreme Court desegregation decisions failed to delineate which equitable remedies lower courts could use in issuing desegregation orders. In Swann v. Charlotte-Mecklenburg Board of Education (Swann, 1971), the Court filled that void. The Court's objective in dealing with desegregation issues was to ensure that school districts did not exclude pupils from any school, directly or indirectly, on account of race (Swann, 1971). Swann is arguably the most aggressive decision involving desegregation and "freedom-of-choice" plans where a unanimous Supreme Court struck down the school district plan for integration, which involved only a few city schools and endorsed busing between non-contiguous school attendance zones, that is, using quotas of Black and White students when making school attendance assignments and aligning predominantly Black city schools with predominantly White suburban schools to create racially integrated zones (Swann, 1971).

ALTERNATIVES TO DESEGREGATION

To avoid Supreme Court desegregation directives, states, in the manner of Swann, established school-choice plans giving tuition credits to White students and also allocating state funding to academies catering to White students only. In addition, school districts established choice plans whereby parents determined the school district for their children and constructively permitted little or no mixing of the races in those plans (Green v. County School Board, 1968; Monroe v. Board of Commissioners, 1968). The ethnic and racial implications, rooted in intended segregation, have caused continued criticism of these plans (Mead, 2003; Aldana, 1997; Daniel, 1993). Choice plans today, nonetheless, may be immune from the desegregation rulings listed above, especially since many today are more segregated than public schools. This is based on the fact that charter schools are not subject to the same strictures as public schools, and charter schools may also attract students on the basis of cultural themes, auricular restrictions, school location, staff hires targeting ethnicity, and marketing strategies (Brown-Nagin, 2000). Moreover, such schools today serve as gatekeepers so as to attract the most academically talented students, while draining public schools of such pupils and denying at-risk students in their own communities of a better education (Daniel, 1993). There is some question, given other Supreme Court decisions, whether one-race schools or those predominantly of one race actually violate Supreme Court desegregation decisions today and the second part of this ambivalence will be explored in the next section of this article.

Contemporary Desegregation cases

The Impact of Milliken on Dowell, Freeman, and Missouri II Supreme Court decisions from Brown to Swann encouraged federal court intervention in state and local education activities so as to promote equal educational opportunity via desegregation. Opposition to this position arose through the states with the development of racially identifiable institutions based on parental choice. The freedom of choice schools have continued and some of the most ardent supporters of these options have been political conservatives hostile to desegregation (Boger, 2003). This juxtaposition of power and judicial support has been quite prominent in case law, and this has extended the debate as to whether educational choice provides tax-supported sanctuaries for middle-class and wealthy members of the majority, while students of color and other at-risk students are left to schools in disadvantaged urban enclaves.

Judicial hegemony over school desegregation was substantially limited by Supreme Court Chief Justice Warren Burger in the decision of Milliken v. Bradley (1974). That holding placed constraints on the reach of the remedial powers explicitly available to the lower courts. At issue was a State of Michigan law requiring suburban school districts surrounding the City of Detroit to participate in a massive integration plan with the city, without tangible evidence of statutory or constitutional state provisions legislating segregation of schools (Milliken, 1974). In an abrupt departure from previous rulings, especially Swann, the Supreme Court determined that lower courts could not order multidistrict or interdistrict relief for de jure discrimination, absent a showing that all school districts to be included had practiced such discrimination, that racial practices in one district had deleterious effects on other school districts, or that district lines had been drawn with the understanding that students would be separated by race (Milliken, 1974). The Burger Court stressed the importance of local control of education, a notion which it had articulated two years earlier in San Antonio Independent School District v. Rodriguez (1973). The Court rendered its support of attendance policies for schools established by school officials and stated that lower court judges were not in a position to supplant the decisions of school board members or licensed school administrators (Milliken, 1974). Such a preemption, according to the Court, would produce problems involving pupil assignments, transportation, and tax-based financial support (Milliken, 1974). Hence, the state legislation in Milliken was found to unconstitutionally abolish local control, and the Court refused to impose a desegregation remedy without extant evidence that suburban, mostly White, school districts had participated in intentional segregation.

The theory of returned local control has continued with recent Supreme Court cases; the extension has been somewhat of a leap; however, in that the decision involving the interdistrict segregation of Milliken has been applied to cases of intradistrict school discrimination with existing desegregation orders. Specifically, the Court has determined that school districts that have not reached desegregation judicial mandates may still be found to have reached "unitary status" (Board of Education v. Dowell, 1991). This may have profound implications for school choice plans, particularly charter schools that promote student achievement, where one-race or nearly one-race schools abound.

The most recent cases in this area heard by the Supreme Court have involved districts attempting to extricate themselves from federal court supervision of desegregation efforts. In Board of Education v. Dowell (1991), the Court expressed its willingness to grant school districts more discretion in administering desegregation plans. The Oklahoma City School District had adopted a School Reassignment Plan in 1984 which effectively returned many previously desegregated schools to one-race schools (Board of Education v. Dowell, 1991, p.242). In response to a civil rights complaint by Black parents, the Dowell Court supported the school district and held that federal supervision of local school systems was intended to be a temporary measure to remedy past discrimination (Board of Education v. Dowell, 1991 p. 248). It repeated the Milliken Court's emphasis on local control of education; if a school district has complied with court conditions for a reasonable period, dissolution of a judicial desegregation decree recognizes the importance of local control. The decision established a good-faith standard whereby school districts need only demonstrate "that they had eliminated the vestiges of past discrimination, 'to the extent practicable,' rather than make a more definite showing of compliance" (Brown-Nagin, 2000, p. 791). This now meant that "de jure segregated school districts] that had been found unitary could return to assigning students to neighborhood schools, even if such schools would be racially segregate" (Brown-Nagin, 2000, p. 785).

In a case with direct influence on school choice, the Supreme Court held that resegregation of schools does not have constitutional implications if the resegregation results from private choices rather than state action. In Freeman v. Pitts (Freeman, 1992), the DeKaIb County (Georgia) School System sought to be released from federal court supervision of its efforts to eliminate the effects of past de jure segregation. The school system claimed that private residential decisions by parents caused resegregation in the school district; this was remarkable since racial separation had been an issue in the school district before the desegregation decree. Moreover, while the desegregation plan in place required busing for students wishing to transfer schools, school officials budgeted no funding for this kind of transportation (Freeman, 1992). The school district went on to assert that a plan had been created that satisfied most of the factors necessary for achieving desegregation and then requested that court jurisdiction be lifted. The lower courts held that all of the factors needed to be satisfied before the district could be declared unitary (Freeman, 1992). The Supreme Court overturned these decisions and ruled that federal courts may relinquish supervision of suspect schools even when only some of the "Green" factors have been accomplished; specifically, courts are under no obligation to remedy racial imbalance in schools caused by private demographic decisions. Moreover, courts may order that school districts are free of judicial control when they can demonstrate desegregation in "incremental stages," despite not having achieved equality in all areas (Freeman, 1992, p. 492).

The triumvirate of Supreme Court decisions, undermining desegregation and further compromising the education of at-risk students, include Missouri v. Jenkins (Missouri II, 1995), a case involving a judicial decree for the Kansas City, Missouri schools. The state of Missouri had incoiporated laws fostering de jure segregation and agreed to follow the desegregation mandate of Brown, but only after several years of legal complaints by Black parents. A district court decision imposed a writ of mandamus requiring the increase of property taxes to establish "magnet schools" so as to attract White students to a school district that had become predominantly African American (Missouri I, 1990). The decision also compelled the raising of teacher salaries and the addition of a city-wide remediation program to address minority student achievement on standardized test scores. State officials challenged every element of the district court ruling (Missouri I, 1990, p. 52).

Following the holding in Milliken v. Bradley, the Supreme Court, Chief Justice William Rehnquist held that the magnet school plan to attract White students back to the city was impermissible as there was no proof of an interdistrict constitutional violation (Missouri Il', 1995). Focusing on the recent decision in Freeman v. Pitts, the Court also announced that demographic private-choice decisions caused the "White flight" from the city, and the state was under no obligation to reverse this trend (Missouri II, 1995, p. 71-72). In effect, according to the Court, racial imbalance prompted by private and personal decisions that might include questions of race are not unconstitutional. The Court also found that disparities in test scores did not justify a continued desegregation order in that Brown signified an equal educational opportunity for all students, not a commensurate outcome. Differences in test scores between Blacks and Whites was said to be an insufficient basis for continuing a Court Order, but more importantly, a school district is not required to demonstrate improved student achievement for a ruling on unitary status (Missouri II, 1995, p. 72).

Dowell, Freeman, and Missouri II offer persuasive arguments that the judiciary in the context of school choice will interpret Brown as standing for equality of educational opportunity and not necessarily racial integration. The three decisions indicate a willingness to defer to state and local school authorities even if a consequence of a school-choice plan is the re-creation of several mostly one-race schools. With local control as a constitutional imperative, courts cannot issue remedial orders for interdistrict remedies for de jure segregation absent findings that all of the school districts in the order participated in discrimination that affected other school districts. Furthermore, segregation is constructively sanctioned by the courts when that separation is deemed to be caused by private actors. The courts have accepted the provision of a return to onerace schools due to choices of domicile causing self-segregation. Judges have also acknowledged that poor student achievement that might be occasioned by these private choices are also not remediable under the 14th Amendment's equal protection clause when no state actor is be implicated. Such decisions have a profound impact on school choice, especially charter schools. Such schools, based on these cases, will likely not be subject to racial balance requirements especially if they are established in districts without a history of intentional discrimination.

CONCLUSION

The new movement toward educational accountability began an unabated period of protracted efforts to address identified shortcomings in American education. One result of the criticism is the universal application of proficiency testing for public school students compelled by federal spending legislation to observe, measure, and thereby facilitate a greater quality of education. Among the reforms promoted by accountability reports and the enacted law has been school choice as an alternative to the public schools in situations where the educational needs of disadvantaged children are being inappropriately addressed. The No Child Left Behind legislation stipulates support of public schools but only if those schools show direct evidence of student achievement. On findings that students do not progress under such a system, parents are imbued with the right to select options that are said to provide greater efficacy of academic progress. Among the school-choice possibilities, the one most favored involves charter schools. Yet, charter schools are "financed by the same per-pupil funds that traditional public schools receive" (Nathan, 1996, p. 2), and while they are typically located within the boundaries of school districts, they are not subject to the regulatory constraints such as teacher training, budgets, pupil-teacher ratios, and curriculum mandates (Ohio Revised Code, 2002). In addition, school admission standards are prescribed by the charter school organizers and not subject to compulsory education laws of the states. Unlike public schools, charter schools are free to refuse admission or to terminate admission without due process (North Carolina General Statutes, 2000). Although some school choices are subject to judicial desegregation orders, many are not. Forty-one states have enacted legislation for charter schooling, but only twelve of those states require that charter schools comply with desegregation orders (American Charter Schools, 2001). This means that these nonpublic schools could be more segregated as well as legal in creating and maintaining racially exclusive admissions policies; thus, causing additional segregation in the traditional schools. Hence, such choices could be used to further avoid desegregation obligations. This portends that courts could impose neither an interdistrict nor an intradistrict remedy on such schools because, in either case, the choice is a private one. An argument might be made that charter schools are still subject to the desegregation decisions of the federal courts.

In the more recent round of desegregation cases the United States Supreme Court has embraced constitutionally protected segregation where desegregation is deemed to be too expensive, impractical, or where education decisions are made by private and not public actors. This directly impacts charter schools and choice options, in general, which are not subject to the same strictures as the public schools. Accordingly, the school achievement sanctioned by the No Child Left Behind Act could be used as judicial cover to sanction charter schools that are established for one racial group. Such a situation likely perpetuates the very concern overruled by the Court in Brown, that the separation of "[African-American] children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community...unlikely ever to be undone" (Brown I, 1954, p. 494). In this sense, the achievement doctrine supported by more recent United States Supreme Court decisions trumps equality with quality, but given the rationale for the decision in Brown, students of color are doubtful recipients of the latter concept.

REFERENCES

Aldana, R. (1997). When the free-market visits public schools: Answering the roll call for disadvantaged students. National Black Law Journal, 15, 26-86.

American Charter Schools (2001). Retrieved April 8, 2004, from http://www.uscharterschools. org./ pub/uscs_docs/o/index.htm.

Board of Education v. Dowell, 498 U.S. 237 (1991).

Boger, J. C. (2003). Education's "perfect storm"? Racial resegregation, high-stakes testing, and school resource inequities: The case of North Carolina. North Carolina Law Review, 81, 1375-1462.

Brown v. Board of Education (Brown I), 347 U.S. 483 (1954).

Brown II, 349 U.S. 294 (1955).

Brown-Nagin, T. (2000). Toward a pragmatic understanding of status-consciousness: The case of deregulated education. Duke Law Journal, 50, 753-886.

Bush, G. (1992, April 16). Speech of President George Bush to the Lehigh Valley 2000 community in Allentown, Pennsylvania. Public Papers of the President, 606, 610, 612. Washington, DC: U.S. Government Printing Office.

Center for Educational Reform. (2004). Charter Schools. Retrieved April 3, 2004, from http://www.edreform.com/index. cfm?mseAction=section&pSectionID=14&cSectionID=34.

Chambers, J. (1987). Adequate education for all: A right, an achievable goal. Harvard Civil Rights-Civil Liberties Law Journal, 22, 55-74.

Daniel, P. T. K. (1980). A history of discrimination against Black students in Chicago secondary schools. History of Education Quarterly, 20, 147-164.

Daniel, P. T. K. (1993). A comprehensive analysis of educational choice: Can the polemic of legal problems be overcome? DePaul Law Review, 43, 1-96.

Daniel, P .T. K., & Nance, J. P. (2002). The role of the administrator in instructional technology. Brigham Young University Education and Law Journal, 2002 (2) [sic], 211-231.

Edgewood Independent School District v. Menof, 893 S.W. 2d 450 (Tex. 1995).

Elementary and secondary Education Act of 1965, 20 U.S.C. sec. 601 et seq. (1988).

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

Goldstein, S. R., Gee, E. G., & Daniel, P. T. K. (1995). Law and Public Education. Charlottesville, VA: Mitche Press.

Green v. County School Board., 391 U.S. 430 (1968).

Huebert, J., & Hauser, R. (1999). National research council, high stakes: Testing for tracking, promotion, and graduation. Retrieved March 20, 2004, from http://www.chhistory.org/ school/FAQs/OPTs.background.html.

Improving America's Schools Act, 20 U.S.C. sec. 6301 et seq. (1996).

Marborough School Committee v. Morley, WL 1186877 (Mass. Super. 1996).

Mead, J. (2003). Devilish details: Exploring features of charter school statutes that blur the public/private distinction. Harvard Journal on Legislation, 40, 349-392.

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

Minow, M. (1999). Reforming school reform. Fordham Law Review, 68, 257-288.

Missouri v. Jenkins (Missouri I), 495 U.S. 33 (1990).

Missouri v. Jenkins (Missouri II), 515 U.S. 70 (1995).

Monroe v. Board of Commissioners, 391 U.S. 450 (1968).

Nathan, J. (1996). Charter schools: Creating hope and opportunity for American education. San Francisco: Jossey-Bass.

National Commission on Excellence in Education (1983). A nation at risk: The imperative for educational reform. Retrieved September 29, 2004, from http://www.ed.gov/pubs/NatAt Risk/risk.html.

Newton v. Chicago School Reform Board of Trustees, WL 1367612 (N.D. Ill 2000).

No Child Left Behind (NCLB) Act, Pub. L. 107-110, sees. 1113-1115, HSStat. 1425(2002).

North Carolina General Statutes Annotated (2000) section 115C-238.29(g)(7).

Ohio Revised Code (2002) Chapter 3314.

Paulson, A. (2004, February 11). A school-district rebellion stirring. Christian Science Monitor. Retrieved March 20, 2004, from http://www.csmonitor.com/2004/0211/pOIs02-ussc.html.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Ravitch, D. (2001). The travails of the Bush plan for education. Education Week, pp. xx, 1.

Read, F. (1975). Judicial evolution of the law of school integration since Brown v. Board of Education. Law and Contemporary Problems, 39, 7-30.

Rozmus, K. (1998). Education reform and educational quality: Is reconstitution the answer?. Brigham Young University Education and Law Journal, 1998 [sic], 103-145.

San Antonio v. Rodriguez, 411 U. S. 1 (1973).

Smith, A. (1776). An inquiry into the nature and causes of the wealth of nations. London: W. Strahan & T. Cadell.

Sperry, D., Daniel, P., Huefner, D., & Gee, E. (1998). Educational law and the public schools: A compendium (2nd ed.). Norwood, MA: Christopher-Gordon Publishers.

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

Texas Education Code, section 39.141 (Vernon 2002).

Texas v. United States, 523 U.S. 296 (1998).

Title I of the Elementary and secondary Act (1965)(repealed), Pub. L. No. 89-10, 79 Stat. 27, 27-36.

U. S. Charter Schools, Retrieved April 8, 2004, from http://www.uscharterschools.org/ pub/uscs_docs/o/index.htm#national.

U. S. Constitution, Article I, section 8, Clause 1.

Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

Philip T. K. Daniel The Ohio State University

AUTHOR

PHILIP T. K. DANIEL is Professor, Educational Administration/Higher Education, and Adjunct Professor of Law, The Ohio State University, Columbus, Ohio.

All queries or comments regarding this article should be addressed to daniel.7@osu.edu.

Copyright Howard University Summer 2004
Provided by ProQuest Information and Learning Company. All rights Reserved