hundreds of school districts in the United States remain under
school-desegregation court orders, even after the fiftieth
anniversary of the Supreme Court’s landmark decision in
Brown v. Board of Education (1954). This doesn’t make any
sense. If there are still segregated schools in these districts,
it is long past overdue that those schools be desegregated.
Of course, the fact of the matter is that, in most of these
cases, the school districts are no longer segregated, but they
still remain under court order. This is bad policy and bad law.
The Supreme Court has made clear that, once a school district
is desegregated—that is, has achieved “unitary status”—the
judicial role is supposed to end, and power to run the schools
in a nondiscriminatory way is supposed to be returned to the
local school board.
This part of the Center for Equal Opportunity website is designed
to be a resource for parents, local school officials, their lawyers,
and others who believe that their schools are no longer segregated
and that therefore the judicial oversight role should come to
an end. We have included access to the following:
• A list obtained from the U.S. Department of Justice of
all the cases in which it is involved in which desegregation
orders are still in effect.
A letter sent from CEO president Linda Chavez to every judge
in those districts having schools on the Justice Department list,
urging them to determine whether continued judicial supervision
in each school system is appropriate.
Two important federal statutes that bear
on school desegregation, in both of which Congress has stated
its general opposition to
busing and racial balancing.
Key judicial decisions and briefs.
Links to top private and public-interest law
firms that handle
cases in this area as well as related
Useful secondary materials (law review articles,
List of Desegregation Orders
Still in Effect
July 8, 2004
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. I am writing to ask you to determine
the status of any school desegregation case on your docket,
and to take appropriate action on it. 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 50 years after the decision in Brown v.
Board of Education, and 40 years after Title IV of the
Civil Rights Act of 1964 authorized and directed the
Department of Justice to initiate and obtain full
desegregation. If these school districts are not yet
desegregated, then this is inexcusable. But if they are, then
it is inexcusable that they are still under court order. 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, legitimate preferences, but it would also
make it difficult or impossible to adopt reforms such as
school choice, 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).)
One might think that the defendants in the cases – usually
local school districts – would urge termination of these cases
once their original purpose had been achieved. Unfortunately,
however, we know that in many cases the school districts
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
systems. 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.
No one wants to open what is often seen as a political can of
Not only is this situation contrary to Supreme Court
decisions that make clear that these orders are supposed to be
of limited duration, but these orders are also sometimes in
tension with the recently passed federal No Child Left Behind
Act. I am enclosing two news articles – from The New York
Times and The Boston Globe – that discuss this point.
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. This course best honors the law,
but it is also simply good case management.
The close and proper control of its docket is of course an
important concern for any court. This is true for all
litigation – a judge would wonder about the status of any
20-year-old case – but especially in matters touching upon the
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.
I attach a photocopy of those pages of the Justice
Department's list that include those 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, know precisely how many cases in your district fall
into this category; perhaps you can determine this, too.
In any event, we would urge your honor to look into this
matter – to see whether any of these cases are on your court’s
docket (indeed, cases this old can fall between the cracks as
judges come and go) and, if so, to satisfy yourself that your
court’s continued supervision of the school system is legally
justified and is achieving a unitary system. Either school
districts have failed to desegregate, or school boards and
students’ educational opportunities are being hamstrung by
judicial decrees that should have been dissolved years ago.
The time is overdue for the courts 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.
I appreciate your willingness to consider this suggestion.
Please note that 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.
Title IV of the Civil Rights Act of 1964,
U.S.C. 2000c through 2000c-9
v. Board of Education of Topeka (Brown I), 347 U.S. 483 (1954).
v. Board of Education of Topeka (Brown II), 349 U.S. 294 (1955)
of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991)
Board of Education v. Brinkman, 433 U.S. 406 (1977)
v. Jenkins, 515 U.S. 70 (1995)
v. Pitts, 503 U.S. 467 (1992)
v. Charlotte-Mecklenburg Board of Education, 400 U.S. 803 (1970)
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)
Brown v. Unified School District, 56 F.Supp. 1212 (D-Kansas July
Capacchione v. Charlotte-Mecklenberg Schools
57 F. Supp. 2d 228 (WDNC 1999)
v. Texas, 5th Cir. October 29, 1998 (Cite prior to being published:
No. 9740162CV0 - 10/29/98)
Who Care v. Rockford Board of Education, 7th Cir. April 18, 2001 (No. 003200
v. Georgia,171 F.3d 1239 (11th Cir. 1999)
v. Board of Education of Muscogee County School District, 111
F.2d 839 (11th Cir. 1999)
963 F.2d 1416 (11th Cir. 1992)
Burris v. Rockhill School District
No. 3 (N.C. D.Ct. 2002)
Appellees’ Brief, Belk v. The Charlotte-Mecklenburg Board
of Education (4th Cir. 1999)
Institute for Justice
Pacific Legal Foundation
Center for Individual Rights
The Institute for Justice
Atlantic Legal Foundation
Discrimination and Preferences
for Neighborhood Schools
School Performance: Lessons from the Kansas City Desegregation
Experiment by Paul Ciotti, Cato Policy Analysis No. 298, March 16, 1998
The Destructiveness of Continuing Desegregation
Orders:What Happens When the School You Go to Depends on the
Color of Your Skin, Roger Clegg, Findlaw Commentary (September
The Role of Res Judicata in
Recognizing Unitary Status, Hugh Joseph Beard, Jr. Louisiana
Law Review Vol. 49 No. 6 1989
School Desegregation Cases: The “Good Faith” Requirement, Charles
L. Patin, Jr.and William M. Gordon,
159 Ed.Law Rep.  (Jan 31, 2002)
J. Armor, Forced Justice: School Desegregation and the Law
(Oxford University Press, 1996).