system, for instance, was tested in the Booker T. Washington school in Champaign, Illinois, an early illustration of the kinds of special offerings that can persuade families to make voluntary transfers. The devising and implementation of such plans had the triple advantage of taking desegregation battles out of the courts, involving educators, and enhancing local support. Early efforts of this sort appeared particularly in university communities, including Berkeley, California; Champaign, Evanston, and Urbana, Illinois; and Boston, which had a voluntary interdistrict transfer plan, Metropolitan Council for Educational Opportunity (METCO).75 Later, states such as Illinois, California, Minnesota, and Connecticut encouraged voluntary desegregation actions in school districts before those policies were dropped or gravely weakened decades after as the political tides changed.
The law consistently required systemic desegregation plans in districts with a history of discrimination until the Supreme Court's 1991 decision in the Oklahoma City v. Dowell case, which encouraged the termination of desegregation orders and did not require the maintenance of standards that would block resegregation in choice or magnet programs after a local court order ended.76 Following Dowell, districts released from court orders were free to either abandon or continue applying civil rights controls to their choice programs. Those that dropped them often experienced rapid resegregation.77 Some that maintained them were sued and lost, particularly in the Fourth Circuit Court of Appeals, which covers Maryland, Virginia, and the upper South and was the nation's most conservative appellate court in that period. In other words, race-conscious magnet plans were now being systematically attacked even when supported by local elected boards of education. The court-ordered dismantling of desegregation plans was under way, and the civil rights policies that had conditioned choice since the mid-1960s were quietly abandoned in some communities, prohibited by courts in others, and maintained elsewhere.
The Supreme Court's conservative majority, which was cutting back on desegregation and increasingly sensitive to claims that the rights of local whites were being violated, acted in the 2002 Zelman decision to address what it saw as the unfair situation of poor black children locked into Cleveland public schools (largely as a result of its 1974 decision protecting the suburbs from metropolitan desegregation plans) by authorizing vouchers for private religious schools. Few states were interested, since surveys consistently show that the large majority of Americans are satisfied with their own public schools and support public education. Conservatives next challenged the legality of civil rights enrollment controls in voluntary transfer and magnet plans. They argued that the absolute right of individuals to make choices in the education market must supersede what communities saw as the value of integrated schools.
In 2007, a transformed Supreme Court acted. Switching gears dramatically, it held in the 5-4 Parents Involved decision that the most common voluntary local desegregation efforts were no longer admirable efforts on behalf of integration but rather unconstitutional discrimination because they treated the choices of some individuals of different races differently when necessary to maintain diversity and avoid resegregation. The court now said that districts must end policies that blocked transfers or magnet applications that increased segregation, taking away a basic tool that federal civil rights officials and courts had found essential for decades.78 Choice would have to be more like the freedom of choice and open enrollment plans of the early 1960s that had failed dramatically. Even before Parents Involved, nonracial choice plans had been producing rapid resegregation in cities that had ended integration policies in their magnet schools.79 The Reagan administration's idea that taking account of race to intentionally integrate schools was just as bad as taking account of race to intentionally produce segregation was now the law of the land with the additional votes of two new justices who had worked in the Reagan Justice Department when it was struggling to end desegregation orders in the 1980s.
The chief justice and three supporters basically concluded that school segregation was no longer a problem and that doing anything aimed at integrating schools, even using a choice mechanism, violated the Constitution. They discussed none of the issues that had been so central in the Green decision. Four justices on the other side disagreed strongly with both the factual and the legal conclusions. In the middle, Justice Anthony Kennedy forbade race-based assignments but recognized that integration was important for schools and hoped that limited mandatory methods—which had failed in the past—would work now. His decision included no analysis of the history of freedom of choice. His controlling opinion said there was no need to “accept the status quo of racial isolation in schools” and affirmed that “this Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation.”80 But he took away critical tools for doing this.
The decision held the most common forms of voluntary desegregation plans to be unconstitutional. At the same time, it authorized far-more-contentious and less-effective plans that redrew attendance boundaries and paired schools. Boundary changes and pairing involved the mandatory reassignment of certain students, something that was much more explosive than the system of parental choice that it replaced. The legal scholar James Ryan commented that “the Court's decision makes it easier legally to leave segregated schools alone than to do something about them.”81 Harvard Law Dean Martha Minow noted that it meant that school authorities could only “try to produce racially integrated schools through ... indirect means.”82 While many school systems were content to leave in place long-established and often popular magnet programs with integration policies, starting all over and trying to find an indirect and legal way to preserve some diversity was a major obstacle.
Justice John P. Stevens, the court's then-senior member, with a moderate Republican background, called the decision “a cruel irony” that took away long-accepted and workable remedies and “[rewrote] the history of one of this Court's most important decisions.” The court, he said, previously had been “more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.”83 The kinds of choice that increased segregation were now legal and the kinds that had produced integration were prohibited, and the country was to abandon the goal of Brown or continue choice programs under policies that history had shown would probably produce increased segregation and inequality among schools.
The decision assumed that something else could be found, some indirect policy that would be color-blind but create diverse schools. Whether the policies that failed across the South and in many northern cities in the 1960s can work now is an important question in this book. The evidence on this point, from both new studies and previous research, is not optimistic.
Both the complexities of the different forms of choice and the extreme inconsistency of policy and law contribute to the deep confusion about this issue. When the Supreme Court shifts 180 degrees on the basic constitutional dimensions of choice and the administration of the first African American president forcefully pursues the rapid expansion of the most segregated sector of choice schools, charters, it is hardly surprising that citizens and educators are confused. A society with little historical memory may be in the midst of repeating the mistakes that led to the Green decision while forgetting the civil rights policies that conditioned and channeled choice for generations. The fact that a one-vote majority on the Supreme Court changed these fundamental assumptions means that this may not be the last shift. A bare-majority decision facing a bitter four-justice dissent is only as secure as that fifth vote.
The Obama administration's leading civil rights agencies issued guidance letters to schools across the country in December 2011 supporting the use of a variety of strategies to achieve integrated schooling without directly assigning students to schools on the basis of their race, which the Supreme Court had prohibited. The guidance also strongly affirmed the value of integrated schooling, which the Supreme Court had also affirmed.84 This was the first major positive federal policy pronouncement on school integration since 2000 and reversed the policy of the George W. Bush administration, which had opposed any consideration of race. However, it is about purely voluntary
