(From USA Today)
News that the U.S. Department of Justice invoked a 42-year-old desegregation decree in an attempt to thwart a Louisiana school voucher program raises an important question: Are desegregation orders really still in effect more than a half-century afterBrown v. Board of Education?
The answer is yes. But for the most part, the orders might as well not be. They are generally not actively or adequately reviewed and supervised by the judges. They remain in place doing little until someone uses them as a tool to push a political agenda.
Legal zombies
The Justice Department’s Civil Rights Division lists 186 school cases on its “Open Desegregation Case List” spread across much of the South: 44 cases in Mississippi, 43 in Alabama, 36 in Georgia, 25 in Louisiana, nine in Florida, seven in South Carolina, six in Texas, five in Tennessee, three in Arkansas, two each for Indiana and North Carolina, and one each for Arizona, Connecticut, Utah and Virginia. There are more cases that don’t involve the Justice Department as well.
One would think that decades after many of these orders were put in place, judges would be indignant. Either judges are wasting their time supervising school districts that have fully desegregated, or the court orders are allowing schools that continue to deny equal educational opportunities to get away with it.
Look at it this way: If a school district is desegregated, then the Supreme Court has made clear these court orders should be removed because they are unnecessary to prevent true discrimination and can only create mischief. And if a school district is notdesegregated — nearly six decades after Brown v. Board of Education — then, well, why isn’t it? If the existing court order is being ignored, someone needs to be held to account.
Move forward
But that’s not what is happening. Earlier this year in Louisiana, the Justice Department tried to use decades-old school-desegregation orders to thwart reforms that are in the interests of everyone, especially children stuck in failing public schools, including, ironically, the very minority children the Justice Department claimed to defend.
Though the Justice Department has ceased its immediate effort to stop the program, the agency can take it back up at any time in Louisiana or in any of the other places where it’s involved in these old court cases. That threat should end.
The Justice Department ought to focus its effort on fighting real discrimination, not keeping old cases open just in case. Congress ought to exercise its oversight authority to see that the government’s lawyers are doing so.
School districts owe it to parents and children to try to end old orders that have been fulfilled. If school district officials refuse, as they often do for shortsighted budget and political reasons, then parents should seek to force them. And judges ought to call in the parties, such as the Justice Department and school boards, to ask them how much longer courts should be responsible for these schools.
That way, everyone could win: Children will be protected from discrimination; parents and educators, not judges and lawyers, will run the schools; and efforts to reform schools can focus on education instead of 1970s-era legal arcana.
Clint Bolick is vice president of the Goldwater Institute, representing families in the Louisiana litigation. Roger Clegg is president of the Center for Equal Opportunity.
