How can we desegregate re-segregated public schools? (again)
Richards, M., Stroub, K., Vasquez Heilig, J. & Volonnino, M. (2012). Achieving diversity in the Parents Involved era: Evidence for geographic integration plans in metropolitan school districts. Berkeley Journal of African-American Law & Policy, 14(1), 65-94.
Landmark legal victories over de jure segregation in the wake of Brown v. Board of Education of Topeka helped to secure dramatic decreases in the racial and ethnic segregation of schools in subsequent decades, especially in the formerly segregated American South. The promise of the post-Brown era proved ephemeral, however; nearly sixty years after the Supreme Court ruled that segregation was inherently unequal, American schools remain remarkably segregated by race and ethnicity. Since the 1980s, the de facto segregation of schools has rapidly intensified, especially in the South and for Hispanic/Latino populations. Indeed, during the 1990s the proportion of Black students in majority-White schools decreased 13 percentage points, to a level not seen since 1970. This re-segregation of schools has been facilitated by weak executive enforcement of civil rights provisions and continued judicial retrenchment on school integration, exemplified by Board of Education of Oklahoma City v. Dowell and Freeman v. Pitts, which diminished desegregation standards and resulted in the release of hundreds of districts from their court-imposed desegregation orders.
In 2007, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1 dealt another blow to integration efforts, rendering unconstitutional school assignment plans that use individual student race or ethnicity as the sole factor in school assignment, punctuating the steady decline in support for school desegregation policies. In the case, which was decided with Meredith v. Jefferson County Board of Education,  the Court ruled that the racial balancing efforts of the Seattle and Louisville school districts, which were undertaken voluntarily in the absence of evidence that either district had deliberately practiced de jure racial discrimination, were impermissible and unconstitutional violations of the Equal Protection Clause. Consequently, districts that had been using such policies to achieve and maintain racial and socioeconomic balance across campuses were denied the primary weapon with which they had historically combated racial and socioeconomic segregation.
In the Seattle student assignment plan, which was challenged under Parents Involved, students were permitted to apply to any high school in the district. However, if the demographics of any school deviated from the demographics of the district as a whole (within a specified percentage), a racial “tiebreaker” was used to determine which students were admitted to the school. Thus, if a school had too many whites, admission might be restricted to only non-whites (including Asians, Latinos, Native Americans, or African Americans); if a school had too few whites, admission might be restricted to only whites. As the foregoing illustrates, the Seattle plan was concerned only with racial balance among “whites” and “non-whites,” not with the racial distribution within non-white populations. In the Jefferson County, Kentucky plan, which was challenged under the Meredith case, students were classified as either “black” or “other,” with students assigned to schools in such a way as to ensure that schools were no less than 15 percent and no more than 50 percent black.
While acknowledging the pernicious effects of segregation, the Court held in Parents Involved that the use of racial classifications in Seattle and Louisville were not “narrowly tailored” to achieve a “compelling” government interest. First, the Court held that there was not a compelling interest that justified the use of race in their student assignment processes. In the plurality opinion, Roberts argued that while racial diversity is a compelling interest in higher education, the ruling in Grutter v. Bollinger and Gratz v. Bollinger did not apply to primary and secondary education, because the districts in question (i.e., Seattle and Louisville) did not use an individualized consideration of students and utilized a very limited racial perspective on diversity (i.e., “white” vs. “non-white”). Moreover, the cases of Seattle and Louisville did not constitute a compelling interest because neither district had a legacy of past discrimination that the plans were designed to remedy. In addition, the Court ruled that the plans of Seattle and Louisville were not sufficiently “narrowly tailored” to constitutionally justify the use of race. Indeed, Roberts notes that both plans were exclusively focused on achieving demographic goals, and not towards achieving any benefit of racial diversity. Moreover, the Court ruled that neither district had made a “serious, good faith consideration of workable race-neutral alternatives,” as required under Grutter. Indeed, the Court held that the districts failed to show that the use of race was necessary to meet its diversity objectives, arguing that similar effects could have been achieved without race-conscious means.
In his concurrence, Justice Kennedy agreed that the Seattle and Louisville district plans were unconstitutional. However, Kennedy argued that the plurality opinion was “too dismissive of the government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race.” Rather, he emphasized that in public schools it is “permissible to consider a schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.” As such, Kennedy concluded that schools are “free to devise race-conscious measures to address the problem in a general way,” so long as they do not treat students differently “based solely on a systematic, individual typing by race.” Indeed, Kennedy specifically endorses creating “attendance zones with general recognition of neighborhood demographics.” Thus, while repudiating the use of individual student race, the Court left open the possibility of using non-individualized measures of race, such as those used in the Berkeley plan.
In the post-Parents Involved and post-Meredith legal environment, districts committed to integrating their schools have implemented several alternative race-neutral and race-conscious strategies to ameliorate segregation. This article examines one promising and innovative policy strategy, pioneered by Berkeley Unified School District (USD), which leverages persistent patterns of residential racial and economic segregation by assigning students to schools on the basis of the characteristics of the neighborhoods in which they reside. Such plans exploit historic patterns of neighborhood racial and socioeconomic segregation, presuming that neighborhood characteristics will reliably predict student characteristics. Thus, a school that is diverse in terms of the neighborhoods it represents will also have a comparably diverse student body.
The use of geography-based integration approaches was pioneered by the Berkeley USD prior to Parents Involved as a means of complying with the stringent requirements of California’s Prohibition Against Discrimination or Preferential Treatment (Proposition 209), which prohibits public institutions from considering individual race/ethnicity and sex in education and hiring decisions. Previously, Berkeley USD had operated a controlled choice integration plan that considered individual student race/ethnicity and parental preferences in student assignment decisions. Under this plan, parents were allowed to choose their child’s school of attendance so long as their choice would not result in a school deviating significantly from the overall diversity of the attendance zone. If, however, family school choices would result in significant declines in diversity at any of the schools, the district would assign students to schools on the basis of individual student race/ethnicity.
In response to concerns regarding a possible violation of Proposition 209, however, Berkeley USD redesigned its integration plan to pair controlled parental choice with innovative geographically-based diversity indices. Under this plan, parents are still allowed to select their top school choices. So long as their choices would result in school racial/ethnic and socio-economic diversity remaining close to the attendance zone average, the parents’ request is granted. However, when school demographics would deviate significantly from the attendance zone average, students may be assigned to campuses on the basis of their neighborhood’s “diversity index” rather than their individual characteristics.
Specifically, Berkeley USD divides the district into 445 neighborhood “planning areas”, each of which ranges in size from four to eight city blocks. Each neighborhood is assigned a diversity index, which is calculated as a weighted function of the percent students of color, median household income, and mean level of adult education, using data from the U.S. Census 2000 and district K-12 data. These diversity scores were divided into three categories, and each neighborhood assigned a code ranging from 1 to 3— where neighborhoods assigned a code of 1 are relatively less advantaged than neighborhoods assigned a code of 3. In the student assignment process, all students within each neighborhood are assigned identical diversity indices, regardless of their individual race/ethnicity or socio-economic status.
The goal of Berkeley USD’s plan is for each school within an attendance zone to reflect the overall attendance zone average on the composite measure. For example, if it is estimated that, for a given attendance zone, 50 percent of the students reside in category “1” neighborhoods, 30 percent in category “2” neighborhoods, and 20 percent in category “3” neighborhoods, each school in the attendance zone should reflect that distribution. If, as a result of parental choice, any school deviates from the overall attendance zone average by more than 5-10 percent, any available seats are filled with students residing in neighborhood of the category that is needed to realign the schools diversity with that of its attendance zone. Using the hypothetical attendance zone above, if a school’s percentage of category “2” students drops to 15 percent, then open seats at that school will be preferentially given to students residing in category “2” neighborhoods until that schools diversity realigns with the attendance zone average.
Berkeley USD’s plan has recently survived a major legal challenge to its constitutionality in American Civil Rights Foundation v. Berkeley Unified School District. The American Civil Rights foundation challenged Berkeley USD’s student assignment policy on the grounds that it was racially discriminatory in violation of Section 31 of the California Constitution. As amended by Proposition 209, the California Constitution prohibits school districts, as government entities, from discriminating against or granting preferential treatment to “any individual or group on the basis of race, sex, color, ethnicity, or national origin.” The American Civil Rights Foundation alleged that by using race in making student assignments, Berkeley was using race to discriminate against and grant preferences to certain students.
In deciding the case, the First District Court of Appeal ruled that Berkeley USD’s plan was not racially discriminatory and did not violate Section 31. Most importantly, the court rules that Berkeley USD’s plan did not show any partiality according to an individual student’s race, noting that all students in each neighborhood were treated equally and were not classified according to their personal attributes, as was prohibited by Parents Involved. Indeed, in the court’s opinion, Sepulveda noted that “white and African American students from the same neighborhood receive the same diversity rating and the same treatment.” Moreover, the court affirmed the constitutionality of the Berkeley USD plan’s emphasis on diversity, arguing that Section 31 does not prohibit consideration of race for any and all purposes, but only prohibits “unequal treatment of particular persons,” which is absent in the plan, which considers only community-wide demographic factors.
Since being implemented in 2004, Berkeley USD’s plan has been credited with maintaining stable integration throughout the district, while still enabling a majority of parents to obtain their school of choice. Indeed, our analysis of data from the National Center for Education Statistics Common Core of Data reveals that Berkeley’s segregation rates have remained extremely low since shifting from a race-based to a geography-based integration plan (multigroup entropy index of H = .03).
The vacuum left by the Parents Involved and Meredith decisions have invalidated many school districts’ integration policies, leaving many school districts looking for new, legal ways to integrate students voluntarily. By using neighborhood diversity in determining student assignment, Berkeley’s integration plan presents a legally viable alternative to plans considering individual student race/ethnicity that avoids the problem of using individual student race/ethnicity that was invalidated in Parents involved and which has withstood legal challenge in American Civil Rights Foundation. Moreover, this study finds that in addition to being legally valid, such plans would likely be effective in achieving meaningful increases in racial/ethnic diversity.
This study, which tested both a multifactorial model such as that used by Berkeley as well as single predictor models using race alone, socioeconomic status alone, and parent education alone, finds that single predictor models may be more effective and parsimonious than multifactorial “diversity models. In particular, a model using only aggregate race would perform better than a multifactorial diversity factor. Indeed, the addition of predictors beyond race will necessarily reduce prediction rate. Because such models still do not use individual student race (i.e., a black student and a white student in a given area would still be treated equally), such a single-predictor model would likely still be upheld under Parents Involved. It is important to note, however, such plans may be less politically feasible than plans using multiple indicators, considering the current climate favors more holistic approaches to diversity and integration than race alone. In particular, socioeconomic integration received considerable attention in recent years, with many districts incorporating socioeconomic factors into their existing models or replacing their traditional race-based plans with plans that consider only economic factors.
In sum, yes, there are policy alternatives that will meet legal muster to remedy the re-segregation of our public schools.
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 See Parents Involved, 551 U.S. 701.
 Richard D. Kahlenberg, Rescuing Brown v. Board of Education: Profiles of Twelve School Districts Pursuing Socioeconomic School Integration (The Century Foundation 2007).
*Meredith P. Richards, Ph.D. Student, Educational Policy and Planning, University of Texas at Austin. B.A. University of Virginia, 2002; M.A. George Mason University, 2005.
**Kori J. Stroub, Ph.D. Student, Educational Policy and Planning, University of Texas at Austin. B.A. University of California at Santa Barbara, 2001; M.A. The College of William & Mary, 2007.
***Julian Vasquez Heilig, Assistant Professor of Educational Policy and Planning, University of Texas at Austin. B.A. University of Michigan Ann Arbor, 1997; M.A. University of Michigan, 1999; M.A. Stanford University, 2004; Ph.D. Stanford University, 2006.
****Michael R. Volonnino, Ph.D. Student, Education Policy and Planning, University of Texas at Austin. B.A. Harvard University, 2001, M.Ed. Rutgers University, 2007.
This research was supported by a grant from the American Educational Research Association which receives funds for its “AERA Grants Program” from the National Science Foundation under NSF Grant #DRL-0941014. Opinions reflect those of the author(s) and do not necessarily reflect those of the granting agencies.
 Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954).
 See generally Reynolds Farley, Racial Integration in the Public Schools, 1967-1972: Assessing the Effects of Governmental Policies, 8 Soc. Focus (1975); James S. Coleman, et al., Trends in School Segregation, 1968-73 (The Urban Institute, 1975); John R. Logan & Dierdre Oakley, The Continuing Legacy of the Brown Decision: Court Action and School Desegregation, 1960-2000 (Lewis Mumford Center for Comparative Urban and Regional Research, 2004); Gary Orfield, Public School Desegregation in the United States, 1968-1980 (Joint Center for Political Studies, 1983).
 See generally Gary Orfield, Schools More Separate: Consequences of a Decade of Resegregation (The Civil Rights Project, 2001); Gary Orfield, et al., The Resurgence of School Segregation, 60 Educ. Leadership 16 (2002); Erica Frankenberg & Chungmei Lee, Race in American Public Schools: Rapidly Resegregating School Districts (The Civil Rights Project, 2002).
 See generally Gary Orfield, Schools More Separate: Consequences of a Decade of Resegregation (The Civil Rights Project, 2001); Sean F. Reardon, et al., The Changing Structure of School Segregation: Measurement and Evidence of Multiracial Metropolitan-Area School Segregation, 1989-1995, 37 Demography 351 (2000); Gary Orfield & John T. Yun, Resegregation in American Schools (Harvard University Civil Rights Project, 1999); Gary Orfield, et al., Deepening Segregation in American Public Schools: A Special Report from the Harvard Project on School Desegregation, 30 Equity and Excellence in Education 5 (1997); Gary Orfield, et al., The Growth of Segregation in American Schools: Changing Patterns of Separation and Poverty Since 1968 (Harvard Project on School Desegregation, 1993); Gary Orfield & Franklin Monfort, Status of School Desegregation: The Next Generation (Harvard Opportunity Project, 1992); Charles Clotfelter, After Brown: The Rise and Retreat of School Desegregation (Princeton University Press, 2004).
 Erica Frankenberg, et al., A Multiracial Society with Segregated Schools: Are We Losing the Dream? 37 (Civil Rights Project, 2003).
 See Bd. of Educ. of Okla. City v. Dowell, 498 U.S. 237 (1991).
 See Freeman v. Pitts, 503 U.S. 467 (1992).
 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
 Clotfelter, supra note 4.
 Meredith v. Jefferson Cnty. Bd. of Educ., 551 U.S. 701 (2007), decided with Parents Involved.
 Parents Involved, 551 U.S. at 702.
 See generally Adai Tefera, et al., School Integration Efforts Three Years After Parents Involved (The Civil Rights Project, 2010); Abbie Coffee & Erica Frankenberg, Two Years After the PICS Decision: Districts’ Integration Efforts in a Changing Climate (The Civil Rights Project, 2009); Amy Stuart Wells & Erica Frankenberg, The Public Schools and the Challenge of the Supreme Court’s Integration Decision, 89 Phi Delta Kappan 178 (2007).
 Parents Involved, 551 U.S. at 701-02 (contains additional information on Seattle and Louisville’s student assignment plans discussed below).
 Id. at 702.
 Id. at 703-04.
 Grutter v. Bollinger, 539 U.S. 306 (2003).
 Gratz v. Bollinger, 539 U.S. 244 (2003).
 Parents Involved, 551 U.S. at 703.
 Id. at 703-04.
 Id. at 704.
 Parents Involved, 551 U.S. at 782 (Kennedy, A., concurring).
 Id. at 787.
 Id. at 788-89.
 Id. at 789.
 Tefera, et al., supra note 12.
 Lisa Chavez & Erica Frankenberg, Integration Defended: Berkeley Unified’s Strategy to Maintain School Diversity (The Chief Justice Earl Warren Institute on Race Ethnicity & Diversity ed., 2009).
 CAL. CONST. art. I, § 31(a) (adopted November 5, 1996 through the ballot initiative measure Proposition 209).
 See Chavez & Frankenberg, at 3-5.
 Id. at 5.
 Id. at 6.
 Id. at 4.
 Chavez & Frankenberg at 6.
 Id. at 4-5.
 Id. at 7.
 American Civil Rights Found. v. Berkeley Unified Sch. Dist., 90 Cal.Rptr.3d 789 (2009).
 CAL. CONST. art. I, § 31(a).
 American Civil Rights Found., 90 Cal.Rptr.3d at 789.
 Id. at 801.
 Id. at 797.
 Id. at 798.
 See Chavez & Frankenberg, at 11-15.
 See John Iceland, et al., Racial and Ethnic Segregation in the United States: 1980-2000 (U.S. Census Bureau, 2002) (noting the multi group entropy index is a statistical measure of “eveness”). In this case, the entropy index indicates the segregation of racial/ethnic groups.