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Excerpted From: Michael A. Middleton, Brown V. Board: Revisited, 20 Southern Illinois University Law Journal 19 (Fall, 1995) (Remark) (85 Footnotes) (Full Document)

MichaelMiddleton[T]he Negro needs neither segregated schools nor mixed schools. What he needs is Education. What he must remember is that there is no magic, either in mixed schools or in segregated schools. A mixed school with poor and unsympathetic teachers, with hostile public opinion, and no teaching of truth concerning black folk, is bad. A segregated school with ignorant placeholders, inadequate equipment, poor salaries, and wretched housing, is equally bad. Other things being equal, the mixed school is the broader, more natural basis for the education of all youth. It gives wider contacts; it inspires greater self-confidence; and suppresses the inferiority complex. But other things seldom are equal, and in that case, Sympathy, Knowledge, and Truth, outweigh all that the mixed school can offer.

As an African-American lawyer involved in the legal struggle to equalize opportunity for all Americans during my entire professional life, I have been troubled by the dilemma that presents itself when the ideal of integration conflicts with the goal of enhancing educational opportunity. What is the appropriate solution, in the context of implementing a desegregation program, when the interest in achieving or maintaining racial balance results in a denial of opportunity to African-American schoolchildren? This dilemma presents itself in three broadly defined circumstances: 1) where a desirable and effective educational program of limited capacity is made available on an integrated basis; 2) where limited resources require a choice between maximizing integration and maximizing the quality of education for African-Americans; and 3) where honest efforts to meet the educational needs of African-American children through race-specific programs are met with resistance as resegregative. In each of these situations, administrators and policymakers are faced with a difficult choice between meeting the educational needs of African-American children and complying with the integration mandate that is implicit in current desegregation discourse.

For example, where a highly attractive program, such as a particular magnet school, does not attract a sufficient number of White applicants to provide an appropriate balance for the number of Black applicants, the conflict between integration and quality education opportunities poses difficult problems. The interest in maintaining racial balance would compel administrators to admit only enough Blacks to “balance” the Whites admitted even if such a practice resulted in a substantial number of seats remaining unfilled. An interest in maximizing quality education opportunities for African-American children would compel administrators to admit African-American applicants until all seats were filled, even if the admission of large numbers of African-American children resulted, through “tipping,” in the eventual development of an all Black program.

A similar dilemma is posed where limited resources force allocation decisions. Most desegregation efforts include some transportation component. The administrators of a program may propose to purchase a limited number of large capacity buses to transport children for desegregation purposes. With a smaller number of buses, longer routes will be necessary and the average ride time for the children involved will necessarily be longer. An alternative proposal would be to purchase a larger number of smaller buses, thereby shortening the average ride time. The costs involved in the smaller bus alternative would of course be higher both in terms of the initial purchase price and long term operating costs. A focus on integration as the primary goal of the desegregation program could lead one to the conclusion that since both options effectively move children from a segregated setting to an integrated setting, the less costly method should be preferred, freeing resources for other integration promoting initiatives. A focus on the quality of education received might compel the conclusion that the longer ride time impedes the education process to an extent that the additional expense of the smaller bus option would be justified.

Another situation in which the dilemma presents itself is where sincere efforts are made to create educationally innovative programs targeting particular groups of “at risk” students. The integration ideal would compel a decision against the creation of an all African-American classroom or school. The interest in providing quality education for African-American children might justify such targeting for legitimate sociological and pedagogical reasons.

My concern is that policymakers, lawyers, and judges, because of the Supreme Court's unanimous decision in Brown v. Board of Education and the confirming interpretations of that decision over the past several decades, have a fixation on integration as the primary remedy for school segregation. It is as if we actually believe that the damaging effects of segregation in American education and the resultant complexities involved in educating America's diverse youth can be corrected by the simple expedient of appropriately mixing Black and White bodies. While no one can dispute that the ideal of integration should be vigorously pursued, I am concerned that pursuit of that ideal, with what appears at times to be a myopic zeal, may hamper the development of potentially effective remedies for the lingering effects of segregation. It is also worth noting that blind allegiance to the integration ideal over the last forty years has accomplished relatively little in terms of achieving a truly integrated public education system.

When I was asked to participate in a rethinking of the Brown opinion, I saw it as an opportunity to suggest a modification to the opinion that would have allowed policymakers the flexibility to address the real concerns that affect the education of African-American children. It is clear that our fixation on integration as the solution derives from Chief Justice Warren's opinion in Brown. In my view, while integration may well have been the best strategy to address the concerns of the African-American community in 1954, it may not be the best strategy in 1994 and beyond. There are circumstances in which a blind determination to achieve integration works against the goal of improving educational opportunity. When such is the case, policymakers should have the flexibility to implement policies that, at the least, do no damage to the quality of educational opportunities provided, and preferably, maximize their quality and quantity.

I believe that the Brown opinion could have been written in a way that would provide the necessary flexibility. I have come to this conclusion with the inestimable benefit of hindsight; yet even with that hindsight, I cannot conclude that Brown was wrongly decided or that its strategists were misdirected. What I can say is that today, an inflexible allegiance to the ideal of integration that produces an impediment to the maximization of educational opportunity for African-American children is wrong. The Brown opinion could have been written so as to provide the flexibility that is needed to create educationally effective remedies for the vestiges of segregation. It is the purpose of this essay to provide a rationale for that modification.

[. . .]

The Brown Court was correct in finding an equal protection violation based on the segregation of public schools as practiced in 1954. The decision can be supported purely on the basis that the racial classification involved, that is, with the purpose and effect of subordinating a class of people on the basis of race, could not be justified as promoting any legitimate governmental interest. The Court, however, apparently feeling a need to identify a tangible harm to underlie its finding, accepted questionable evidence of long term psychological and educational damage to the African-American children exposed to segregation. The problem is that the Court, in identifying the harm to the children, neglected to recognize that if African-American children had been harmed by segregation, it was likely that segregation in and of itself was not the sole cause of the observed “damage.” Rather, it seems clear in hindsight that any educational deficit that might have been observed in African-American children was caused by the unequal educational opportunities afforded them through the systematic underfunding of the schools to which they were relegated, and through curricula designed and implemented in an apartheid-like social context of White domination and Black subjugation.

In focusing on segregation as the cause of the harm and ignoring the subordination of the educational needs of Black children, the Court fixed on desegregation, or integration, as the appropriate remedy. In doing so, the Court missed an opportunity to develop potentially more effective remedies targeting the specific educational needs of African-American children. Recognizing the inequality in physical facilities, curricular material, and other tangible factors in the schools provided for Black children as an integral part of the constitutional violation would have allowed for an additional remedial focus on educational innovations designed to improve the quality of education provided to them. Such an approach would not only justify traditional remedial and compensatory programs designed to improve the quality of education, such as those authorized in Milliken II, but also provide a constitutional basis for the more controversial and innovative approaches that have more recently appeared in the literature. If these controversial measures identified the beneficiary of the remedy in the same terms as he or she was identified for victimization, so be it—this is the compelling governmental purpose that justifies the consideration of race in governmental decision making. If these measures did not work immediately to maximize integration, so be it—the remedy is tailored to the harm accurately identified. By eliminating the dubious notion that segregation in and of itself caused psychological and developmental harm to Black children from the Brown decision and thus from the lexicon of desegregation discourse, policy makers would be freed to structure remedies for state imposed segregation that focus on the undeniable harm that was done.

This approach is not anti-integrationist. The requirement that school systems unsegregate would put an end to active efforts to segregate the races. Beyond that, however, the Court should have noted that integrated schools, all other things being equal, are as a general matter superior to schools that are not integrated. Assuming that comparable schools are equal in terms of resources, facilities, and academics, one that excludes citizens on the basis of race is clearly inferior to one that does not. A school that operates in this pluralistic society in a manner inconsistent with one of America's fundamental values, equality among its citizens, cannot be equal in quality to one that does not. While unsegregation could be required to remedy the constitutional wrong of segregation, integration can be viewed as a quality enhancement that should be vigorously pursued in every school, except where it interferes with other legitimate remedial programs. Those other legitimate remedial programs might well, in educationally appropriate circumstances, include overt racial concerns or even segregation.

The constitutional inequality on which the Fourteenth Amendment equal protection violation could have been founded was in the simple fact of state-imposed segregation of the races. Segregation of the races is inherently unconstitutional because it is inconsistent with the fundamental value embodied in the Equal Protection Clause. The Court functioning in its expository capacity could easily have made that declaration and ordered that the practice cease. The tangible inequality that is the result of discriminatory treatment of Black students attending segregated schools through resource inequities and curricular deficiencies and the general inferiority of schools that are segregated without compelling reason must be addressed more directly than through assumptions that integration will work its magic.

Identifying the harm of segregation both in terms of its inherent inconsistency with the constitutional norms expressed in the Fourteenth Amendment and in terms of its rendering ineffective the education system in meeting equally the needs of all children, would allow the Court to fashion remedies focused on quality improvements for African-American children, in whatever form those improvements may take.

The question of when the remedy could be said to have been achieved would have to be answered in terms much more difficult to measure than a particular degree of racial balance. The remedy would be achieved when the schools equally meet the educational needs of their African-American and White students as measured by outcome-based measures of academic achievement. 

Professor of Law, University of Missouri-Columbia, and counsel for NAACP/Caldwell plaintiffs in Liddell v. Board of Educ., 814 F.Supp. 788 (E.D.Mo.1993). 

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