The Shaping of Policy: Exploring the Context, Contradictions, and Contours of Privilege in Milliken v. Bradley, Over 40 Years Later
by Terrance L. Green & Mark A. Gooden - 2016
Background/Context: Milliken v. Bradley (1974) (Milliken I) is a pivotal Supreme Court case that halted a metropolitan school desegregation remedy between Detroit and 53 surrounding suburban school districts. In a 5-4 Supreme Court decision, the Milliken ruling was a significant retraction from the landmark Brown v. Board (1954) (Brown I) ruling that 20 years earlier deemed state imposed racially segregated schools unequal and unconstitutional. The effects of the Milliken decision neutralized school desegregation efforts in the United States, especially in the North. We, therefore, revisit the significance of Milliken over 40 years later.
Purpose: The purpose of this study is to examine the context and contradictions in Milliken. In doing so, we review select federal school desegregation cases that informed the judicial and plaintiff’s thinking in Milliken, and provide an in-depth description of the city of Detroit and Detroit Public Schools, prior to and during Milliken. We also analyze how the Milliken decision reinforced what we refer to as the “contours of privilege” as well as materialized property rights for white, suburban students and school districts at the expense of African American students in Detroit Public Schools.
Research Design and Methods: A qualitative content analysis was employed for this study. Our analysis draws on a review of existing literature about Milliken beginning in 1970, policy documents, legal filings, and local newspaper articles on the case. We use critical race theory’s whiteness as property to guide this analysis.
Conclusion: The findings suggest that the Supreme Court protected white, suburban students’ educational rights and interests in Milliken. This was accomplished through the contours of privilege as reproduced in Milliken, which include acknowledging inequity but not disturbing racially inequitable systems, restricting black educational rights and perpetuating white privilege, and exercising the right to maintain dual educational systems. The study concludes with policy implications in light of Milliken.
The landmark Brown v. Board of Education of Topeka, Kansas (1954) (Brown I) decision has been positioned as a critical legal juncture in the fight for educational equity, especially for African American1 children in the 11 southern U.S. states and the District of Columbia (Jones, 1992). The Supreme Court in Brown I determined that the separate but equal doctrine found in Plessy v. Ferguson (1896) was a violation of the 14th Amendments Equal Protection Clause, and thus held that racially segregated schools were inherently unequal and unconstitutional. For many, Brown I was expected to achieve educational and even social transformation across the United States (Jones, 2004; Radelet, 1991). However, over 60 years after the Brown I decision, American public schools are still racially segregated and unequal (Cashin, 2014; Orfield, 2014).
The Brown v. Board of Education (1955) (often referred to as Brown II) declared that school desegregation2 be implemented with all deliberate speed, but it was Milliken v. Bradley I3 (1974) that signified the Supreme Courts retrenchment from Browns legacy (Baugh, 2011a; Gooden, 2004; Orfield & Eaton, 1997). In a 5-4 decision, the Supreme Court found it illegal to impose a metropolitan4 (i.e., cross-district) desegregation remedy between the predominately black Detroit Public School system and 53 surrounding white, suburban districts. The Supreme Court did so despite evidence of de jure segregation by the Detroit School Board and the state of Michigan (Baugh, 2011a; Jones, 2004). Yet, without involving white, suburban districts in school desegregation efforts, it was nearly impossible to achieve meaningful desegregation in Detroit and other northern cities. Milliken was thus one of the first opportunities to take Browns fight to racially segregated schools in the North, and therefore became an inflection point in the struggle for school desegregation in the United States.
The Milliken decision essentially closed the door on mandatory metropolitan school desegregation remedies thus leaving in place de facto segregation (Bischoff, 2008; Clotfelter, 1999; Frankenberg, Lee, & Orfield, 2003; Gooden, 2004; Holme & Finnigan, 2013; Orfield, 2009; Ryan, 2011). This ruling also calcified the lines of race and social class inequities between urban school districts of color and wealthy, white suburban districts (Jones, 1992; Siegel-Hawley, 2013). Moreover, the decision failed to directly challenge residential segregation, which in turn protected white, suburban districts from participating in metropolitan school desegregation remedies, and ultimately changed the course of school desegregation in the United States (Gooden, 2004; Orfield, 2014; Radelet, 1991; Riddle, 2000; Ryan, 2011). As a result, Milliken has been described as the most important school desegregation case since Brown (Hochschild & Scovronick, 2004), yet Milliken is rarely discussed beyond university classrooms or as a footnote to cases that succeeded Brown.
The purpose of this study is to analyze the context and contradictions in Milliken. We discuss how the decision reinforced what we refer to as the contours of privilege and materialized property rights for white, suburban school districts. Radelet (1991) argues, The meaning of a case such as Milliken is, therefore, not only instructive for historys sake but it is important for the sake of the future (p. 174). Thus, we revisit Milliken on its 40th anniversary for historical and contemporary reasons. First, we reconsider Milliken through a lens that understands the complex legacy of school desegregation in the U.S. In doing so, we aim to provide a historical context to better understand the current racial inequities that exist between low-income school districts of color and wealthy, white suburban districts, as well as more recent federal school desegregation efforts. Forty years later, Milliken has proven to be a precursor of judicial resistance to desegregation efforts as evident in Missouri v. Jenkins (1995) and in more recent cases such as Parents Involved in Community Schools v. Seattle School District NO.1 (2007) in which the Supreme Court has all but abandoned racial equity remedies that address the vestiges of segregation. Second, we analyze Milliken in light of changing racial demographics across urban and first-ring suburban school districts (Frankenberg & Orfield, 2012; Orfield, 2014; Orfield & Lee, 2005). In essence, 40 years post-Milliken, we reflect upon the case and posit that metropolitan educational equitywith a particular focus on African American childrenmust become a national imperative to address the challenges within and across school districts in the United States.
In what follows, we broadly discuss select school desegregation cases that were adjudicated prior to Milliken. Next, we delve deeply into the background of Detroit Public Schools (DPS) and the city of Detroit prior to and during Milliken to describe the context in which the cases emerged. We then review Milliken, discuss how whiteness as property (Harris, 1993) framed our analysis, and describe our methods. To conclude, we offer policy implications in light of Milliken.
KEY SCHOOL DESEGREGATION CASES, PRE-MILLIKEN
Milliken is part of a history of school desegregation cases, especially at the federal level, in the United States that began over 160 years ago. These cases include, but are not limited to Roberts v. City of Boston (1849), Workman v. Board of Education of Detroit (1869), Sweatt v. Painter (1950), McLaurin v. Oklahoma State Regents for Higher Education (1950), Deal v. Cincinnati Board of Education (1966), Griffin v. County School Board of Prince Edwards County (1964), Green v. County School Board (1968), Alexander v. Holmes County Board of Education (1969), United States v. Scotland Neck City Board of Education (1972), Wright v. Council of City of Emporia (1972), and Keyes v. School District No. 1, Denver, Colorado (1973). One of the earliest school desegregation cases occurred in Massachusetts in 1849. In Roberts v. City of Boston (1849), Benjamin Roberts, attempted to enroll his five-year-old, African American daughter, Sarah, into a white-only elementary school that was closer to their home. Sarah walked by five white elementary schools to attend an all-black school, because the school board had established racially segregated schools in 1846. Challenging the separate but equal doctrine found in the Boston School Committees Policy, Mr. Roberts sued the city of Boston, but was unsuccessful. The Massachusetts Supreme Courts ruling in this case is significant because it sided with the Boston School Committee and justified racially segregated schools in a northern city, often thought to have few issues with de jure segregation.
Two decades later, the Michigan Supreme Court encountered its first school desegregation case, Workman v. Board of Education of Detroit (1869). In 1869, Joseph Workmans biracial son was denied enrollment into a Detroit Public School (i.e., Duffield Union School) because he was of African dissent. To build the case, Workmans lawyer relied on Michigan Act No. 34 (1867) that stated:
All residents of any district shall have an equal right to attend any school therein . . . this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when deemed expedient.
The Detroit School Board argued that they were exempt from Act 34 because they operated under a separate charter that allowed them to establish separate schools for blacks. They further purported that segregated schools best served the interest of public order (Moreno, 2008, p.10). However, the court found that Detroits school segregation charter violated Michigan law. The Workman decision is important because it established a legal precedent in Michigan to provide education for all students without racial discrimination.
Over the next hundred years, the Supreme Court heard a series of school desegregation cases5. However, in the late 1960s and early 1970s, the Supreme Court made decisions on several school desegregation cases that shaped Milliken. In 1968 in Green v. County School Board the Supreme Court held that the county's freedom of choice plans, which gave students the right to choose between black and white high schools, did not comply with Brown. In Green, the Supreme Court ruled that these plans were not sufficient enough to achieve school desegregation because the majority of white students chose to remain in racially separate schools.
In 1971, a key school desegregation case emerged in Charlotte, North Carolina: Swann v. Charlotte-Mecklenburg (1971). Swann is significant because the Supreme Court acknowledged the connection between housing and school segregation, supported a district-approved plan that restructured attendance zones to foster racial balance, and responded to the patterns of residential segregation across metro areas (M. Orfield, 2015; Siegel-Hawley, 2013). To address the school segregation in Swann, the Supreme Court ordered busing throughout the districts schools. Since most school districts in the South were countywide, meaningful desegregation had a greater potential to be accomplished. However, desegregation efforts were limited within a single countywide school district, and the Court made it clear that [as] an interim corrective measure, this [eradicating discriminatory attendance zones] cannot be said to be beyond the broad remedial powers of a court (Swann v. Charlotte-Mecklenburg, 1971, p. 29). The Swann ruling was the first decision that used busing as a remedy to achieve school desegregation (Gooden, 2004; Russo, Harris, & Sandidge, 1994). Swann also declared that school segregation violations and remedies must be congruent, that is, once a right and violation has been shown, the scope of the district courts equitable powers to remedy the wrong is broad, for breadth and flexibility are inherent in equitable remedies (p. 15). In other words, the degree of the violation informed the scope of the remedy.
Additionally, in Wright v. Council of City of Emporia (1972), the Supreme Court held that white flight must be considered in a courts remedial plan and separate suburban school district lines could not be used to block desegregation remedies. A year before Milliken was decided, the Supreme Court found in Keyes (1973) that discriminatory practices in any particular part of a district inferred district-wide discrimination.
Collectively, these and other cases informed the courts in Milliken in multiple ways, such as: the scope of desegregation remedies, the efficacy of busing as a school desegregation solution, and the Courts ability to address the relationship between housing and school segregation patterns. However, to better understand the impact of these cases on Milliken and to frame subsequent parts of this study, we next discuss Detroit Public Schools and Detroit prior to and during Milliken.
MILLIKENS MILIEU: RACE, SOCIAL CONTEXT, AND THE OTHER SIDE OF 8 MILE ROAD
To describe the context in which Milliken unfolds, we discuss the intersecting historical, racial, and social milieu of Detroit Public Schools (DPS) and the city of Detroit. We highlight important epochs within this context, particularly the origins of DPS, the Great Migration, and DPS prior to Milliken.
ORIGINS OF RACIALLY SEGREGATED AND UNEQUAL SCHOOLS IN DETROIT, 18401910
The Plessy (1896) doctrine of separate but equal that was undergirded by systemic racism and white supremacy was not only ubiquitous in the South, but also permeated every aspect of social life in Detroit (Katzman, 1973; Sugrue, 1996), especially DPS. On February 18, 1842, the Michigan legislature established free public schools in Detroit (Farmer, 1884). According to the legislative act, Detroit schools were to be public and free to all children within the limits thereof, between the ages of four and seventeen years (Burton, Stocking, & Miller, 1922, p. 738, emphasis added). Despite this law, the Detroit School Board created seven schools that were racially segregated and fiscally unequal. Six schools were established for white childrenone school for each of the citys six political districtsand one citywide school for African American children, named Colored School Number One. This school operated with only lower grade levels (Moehlman, 1925; Radelet, 1991), showing a general lack of commitment to black students and their education. Furthermore, it took nearly 20 years for DPS to find a permanent location for Colored School Number One6 (Baugh, 2011a). According to Baugh (2011a), For two decades, public education for black children was held in local churches and in leased buildings (p. 58). Finally, in 1865, the district created a second public school for African American children in Detroit, but by this time the inequities and instability had been firmly entrenched.
THE NOT SO GREAT EDUCATIONAL MIGRATION?, 19101960
During the First Great Migration of the 20th century, the African American population in Detroit grew significantly. Between 1910 and 1930, the African American population in Detroit skyrocketed more than twenty-fold, from 5,741 to 120,066 residents (U.S. Census Bureau, 1930), and continued to grow over the next seven decades. As blacks migrated to Detroit, seeking to escape racist institutions in the South and partake of more opportunities, they encountered similar, and in some cases, more severe forms of racism in the North. Blacks were systematically discriminated against in housing and employment opportunities (Jones, 2013; Sugrue, 1996). Moreover, as the black population grew within the citys limits, white families concomitantly fled to nearby suburbs, especially across Eight Mile Road. Eight Mile Road became a de facto exclusionary and psychological boundary for Blacks, but also a place marker indicating where suburban refuge started for whites (Baugh, 2011a; Sugrue, 1996).
Between 1940 and 1960, the white, suburban population grew nearly three times over, from 732,000 to 2.1 million (U.S. Census Bureau, 1960). In 1963, Detroit Public Schools served 150,565 (51.3%) African American students and 141, 240 (48.1%) white students (Baugh, 2011a). In this context of white flight and institutional discrimination that blacks continually experienced, racial tensions were high in the city and DPS. However, the racial tensions reached a zenith during the 1967 race rebellion, which was one of the nations most deadly and destructive civil disorders in U.S. history (Mirel, 1999; M. Orfield, 2015). The rebellion of 1967 accelerated white flight from Detroit to the suburbs, thus making the city home to a larger percentage of African Americans. By 1970, Detroits black population had increased by 15% from the previous decade, and DPS had approximately 290,000 students in which 65% were black, 34% were white, and 1% Latino/a (Mirel, 1999). At the same time, Detroits automotive industry was experiencing the genesis of decline, as auto plants eventually shut down or moved to the suburbs. In fact, between 1969 and 1973, the number of jobs in Detroit declined by 19% and most adversely impacted black households (Mirel, 1999). In this complex milieu of racial rebellions, exodus of white families and good-paying manufacturing jobs to the suburbs, and the start of deindustrialization, there was no unanimous opinion among black parents about school desegregationsome were for it and others were against it (Baugh, 2011a). Thus, it is within this context that Milliken emerges.
A REVIEW OF MILLIKEN V. BRADLEY (1974)
In 1970, the Detroit School Board took a first step to address the interlocking levels of racism that created racially segregated high schools. Many Detroit high schools that served Black students were located in the central part of the city while high schools that served white students were on the periphery. The decision to address the racial segregation in high schools was the result of constant pressure from the black community to provide equitable education opportunities and allocate more resources to schools where their children attended, and not necessarily the desire for integration (Jones, 1992; Mirel, 1999). Addressing racial segregation also seemed feasible because DPS had what many called a pro-integration superintendent and the majority of board members7 were advocates for desegregation (Baugh, 2011b). On April 7, 1970, the Detroit School Board approved a planpopularly known as the April 7th Planto decentralize and incrementally integrate eleven of Detroits 22 high schools, as well as send a substantial number of black students to the three high schools that were overwhelmingly white, through redrawing attendance lines (Baugh, 2011b; Radelet, 1991). The plan was in compliance with the 14th Amendments Equal Protection Clause.
The April 7th Plan was met with resistance from both black and white parents for different reasons (Meinke, 2011). White parents did not want their children to attend majority African American schools, and a growing contingency of African Americans were against the plan because they advocated for community control of neighborhood schools (Baugh, 2011a). Due to the history of unequal educational opportunities for black students in Detroit, many black parents believed that community control of schools, as opposed to the proposed integration plan, was the only way to ensure equitable educational opportunities for African American children. Operating from this perspective, State Senator Coleman Young (who later became Detroits first black mayor in 1973) sponsored Public Act 48, which placed schools under community control, and halted the school integration and decentralization goals of the April 7th Plan (Meinke, 2011). At the same time, whites that opposed the April 7th plan supported Public Act 48 because it provided a means to forgo participation in school desegregation efforts. According to Baugh (2011b), Public Act 48 included an open enrollment provision permitting white students left in neighborhood schools that were changing from white to Black to transfer out of the black schools (p. 3). Governor William Milliken, who supported Public Act 48, signed it into law on July 7, 1970.
PUBLIC ACT 48: A STATE-MANDATED INTERFERENCE OF BROWN
Public Act 48 directly interfered with the Detroit School Boards prior plan to comply with the 14th Amendments Equal Protection Clause as determined in Brown (Jones, 2004). By repealing the April 7th plan, Public Act 48 redrew boundaries across Detroit into four black and four white subdistricts that could be controlled locally, but would exacerbate racial segregation (Meinke, 2011; M. Orfield, 2015). In response to the halted April 7th Plan, on August 18, 1970, the National Association for the Advancement of Colored People (NAACP)on behalf of Verda Bradley and other African American parents and childrenfiled a lawsuit against the state of Michigan, the Michigan Board of Education, the Detroit Board of Education, the Detroit superintendent of schools, and Governor William Milliken, which became known as Milliken v. Bradley. To be clear, the lawsuit was not for the purpose of achieving racial balance in schools, but educational equity (Baugh, 2011a; Jones, 2004). The lawsuit claimed that Public Act 48 was unconstitutional and requested immediate reinstatement of the April 7th Plan.
Nathanial Jones, the general counsel for the NAACP, and his team, provided an arsenal of evidence, which proved that state and local government actionsincluding Detroit School Board actionsintentionally promoted racial segregation across Detroit Public Schools (Jones, 1992; Lindquist, 1974; Russo et al., 1994). Such school board practices and policies included: racially defined school feeder patterns, open enrollment, optional attendance zones, school construction decisions, and gerrymandering of attendance boundaries (Milliken, 1974). Additionally, to establish racially segregated housing, state and local governments enacted restrictive covenants, inequitable access to Federal Housing Administration (FHA) loans, redlining, race-based public housing decisions, urban renewal projects that disrupted Black communities (e.g., Black Bottom and Paradise Valley), and real estate code of ethics that systematically steered and excluded blacks from majority white neighborhoods in Detroit (Baugh, 2011a; Jones, 1992).
NEEDING A METROPOLITAN REMEDY
The NAACPs two-tier legal strategy was successful at the District Court level, as it showed how the Detroit School Board and State of Michigan created and perpetuated the inextricable link between race-based segregation in housing and schools. Thus, the lower court found that the Detroit school board had committed several violations as recognized in the Keyes case, including: (a) establishing and maintaining optional attendance zones that benefited white students, (b) busing black students past white schools that were closer to students homes, (c) alerting attendances zones, (d) creating boundaries from north to south when east-west boundaries would be more integrative, and (e) supporting construction policies that exacerbated racial segregation (Milliken, 1971; M. Orfield, 2015). On September 27, 1971, Judge Stephen Roth found local and state defendants guilty of de jure school and housing segregation, and ordered the school board to submit proposals to remedy the situation (Baugh, 2011b). Judge Roth held:
Pupil racial segregation . . . and the residential racial segregation resulting primarily from public and private racial discrimination are interdependent phenomena. The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation. The Boards building upon housing segregation violates the Fourteenth Amendment. (Milliken, 1971, p. 593)
Roths ruling underscored that an interlocking racial system produced housing and school segregation.
As such, Judge Roth rejected a Detroit-only desegregation plan and held hearings for metropolitan solutions, because a metropolitan remedy was the only way to truly desegregate schools and curb white flight to adjacent suburban school districts (Jones, 1992; Sedler, 1978). The proposed plan would have involved 503,000 students, including 276,000 in Detroit, across 53 of the 85 suburban districts. In December of 1972, the Sixth Circuit Court affirmed Judge Roths findings that a Detroit-only desegregation plan was too limited, and DPS and the state of Michigan were guilty of de jure segregation (Baugh, 2011b). The state, which was joined by the suburban districts, appealed to the Supreme Court.
THE SUPREME COURTS RULING AND ITS IMPACTS
On July 25, 1974, in a 5-4 vote, the Supreme Court rejected the relief ordered by the District Court and remanded the case, which had also been affirmed by the Court of Appeals. The Supreme Court ruled that the District Courts decision was based on erroneous standards and was not supported by evidence that outlying white, suburban districts had any impact on the discrimination found in the predominantly black Detroit schools. Hence, the Supreme Court ruled that a federal court could not impose a metropolitan (i.e., multidistrict) remedy for single-district de jure school segregation violation (Milliken, 1974). The Supreme Court also stated there was no claim or finding that the school district boundary lines were established to foster racial segregation. Finally, the Supreme Court noted the predominantly white neighboring school districts were not provided meaningful opportunity to present evidence on the questions of whether a metropolitan remedy would be appropriate, or on the question of constitutional violations by those districts (Jones, 1975).
The Supreme Courts decision was felt on multiple levels across metropolitan Detroit and the United States as it prohibited crossing urban/suburban school district boundaries unless suburban schools could be found at fault, which presented formidable challenges for meaningful school desegregation in Detroit (Jones, 1978, 1992; Sedler, 1978). In turn, the decision considerably restricted school desegregation solutions in other northern cities like Chicago, Philadelphia, Milwaukee, and Minneapolisall of which had predominantly black city centers surrounded by separate, white suburbs with their own school districts. Reflecting on the ramifications of the decision, Orfield and Eaton (1997) argue, Milliken rendered Brown almost meaningless for most of the metropolitan North by blocking desegregation plans that would integrate cities with suburbs (p. 2). Similarly, Baugh (2011a), in her final analysis, contends that Milliken was about much more than school desegregation and busing. She continues:
It reflected the differing perceptions and perspectives about several thingsthe origins and operation of the metropolitan color line, the political, economic, and social dynamics of Detroit and its suburbs; and the role of the law and the courts in achieving social change, especially in the face of resistance from the public, as well as from government officials. (p. 209)
The Milliken decision reinforced the prevailing and dominant perspectives about the metro color line and the role of the law in achieving educational change in Detroit.
Moreover, when the decision returned to the Federal District Court, newly appointed Judge Robert DeMascio ordered a Detroit-only desegregation remedy. According to Radelet (1991), with the Detroit-only busing plan, only 10.1% of students were bused, and the entire central area of Detroit was omitted from the busing plan, where the majority of black students attended school (p. 176). In sum, when reviewing Milliken, the context of Detroit, and its public schools, we note the enduring salience of race, white privileging found in policy, and educational inequity that most adversely impacts African American students. Therefore, we use critical race theory to further examine Milliken and its racialized effects.
CRITICAL RACE THEORY
We draw on critical race theorys (CRT) tenet of whiteness as property to frame our analysis of Milliken. In this effort, we draw on CRT as originated among critical legal scholars (CLS) and traditional civil rights scholarship in the 1980s (Bell, 1980; Crenshaw, 2011; Harris, 1993; Matsuda, Lawrence, Delgado, & Crenshaw, 1993) as well as how education scholars have employed the lens (Ladson-Billings & Tate, 1995). Angela Harris (1994) argues, CRT inherits from CLS a commitment to being critical, which in this sense means also to be radical . . . [and] CRT inherits from traditional civil rights scholarship a commitment to a vision of liberation from racism (p. 743). Hence, CRT challenges how race, racism, and racial power are constructed and represented in U.S. society and legal culture (Crenshaw, Gotanda, Peller, & Thomas, 1995). According to Bell (1995), [CRT] is a body of legal scholarship . . . a majority of whose members are both existentially people of color and ideologically committed to the struggle against racism, particularly as institutionalized in and by law (p. 898). Critical race theory is often disruptive to institutions because of its fidelity to addressing racism extends beyond civil rights and other liberal benchmarks (Bell, 1995).
In the first article on CRT in education, Ladson-Billings and Tate (1995) published, and theorized race and [its] use as an analytic tool for understanding school inequity, as well as the intersection of property rights and race (p. 48). These scholars argued that school desegregation signified a loss of African American teaching and administrative positions and increased white flight. Since then, scholars across the field have applied a CRT framework to education research (Alemán, 2006; Decuir & Dixson, 2004; Dixson & Rousseau, 2005; Horsford, 2010; Ladson-Billings, 1998; Lynn & Dixson, 2013; Parker, 1998; Solórzano, 1997; Solórzano & Yosso, 2001; Tate, 1997; Yosso, 2005).
Several tenets are consistent among most CRT scholars. First, CRT begins with the notion that racism is normalnot an aberration or series of separate actsand deeply ingrained in American society (Delgado, 1995; Dixson & Rousseau, 2005; Ladson-Billings & Tate, 2005). Due to the pervasiveness of racism throughout society, Delgado and Stefancic (2001) argue that the normalcy of racism makes it difficult to legally remedy any wrongdoing based on race, except in cases of the most blatant racist acts.
Second, CRT scholars argue that liberalism is inadequate for addressing Americas racial problems, because liberalism buttresses notions of colorblindness, objectivity, meritocracy, and neutrality (Bell, 1995; Crenshaw, 1988). CRT scholars posit that these legal claims must be challenged (Crenshaw, 1988; Delgado, 1995; Ladson-Billings, 1998). Third, interest convergence theory is an important tenet of CRT, which holds that blacks racial interests advance when they converge with the interests of elite, whites, and the changing economic conditions (Bell, 1980). Fourth, the counter-narrative, is another hallmark of CRT (Bell, 1995; Delgado, 1995; Ladson-Billings, 1998; Solórzano & Yosso, 2001). Through counternarratives, CRT recognizes the experiential knowledge of people and communities of color in analyzing society and law. Fifth, several scholars acknowledge whiteness as property as a tenet of CRT (Bell, 1995; Ladson-Billings & Tate, 1995), which we define and describe in the next section because it anchors our examination of Milliken.
WHITENESS AS PROPERTY
For our analysis, we specifically apply Cheryl Harris (1993) articulation of whiteness as property to help illuminate the contradictions in Milliken. The origins of property rights in the U.S. are rooted in racial domination, white supremacy, and chattel slavery (Harris, 1995). During chattel slavery in the U.S., property ownership was inextricably linked with race, citizenship, and human rights. Harris (1995) argues, Race and property were thus conflated by establishing a form of property contingent on race: only blacks were subjugated as slaves and treated as property (p. 278). After chattel slavery in the United States ended, white identity became the benchmark for racialized advantage and has evolved into a form of property protected by law that has embedded privileges, benefits, and statues attached to it (Harris, 1993). Hence, Harris (1995) posits, The ideological and rhetorical move from slave and free to black and white as polar constructs marked and important step in the social construction of race (p. 278). Blacks, then, represent a unique type of U.S. citizen that was property and now citizen (Ladson-Billings, 1998).
Moreover, Harris (1993) asserts that many theorists describe property as things that are owned or physical objects; however, she theorized that property is not only a tangible object, but also a right. Although whiteness is not a physical entity, it is still a form of property that has recognition in the law and will be protected as such (Harris, 1993, 1995). This form of property, that is whiteness, produces material outcomes for the benefactors. Whiteness, thus, becomes a property right and line of protection to accumulate benefits while being a non-holder of whiteness legally excludes persons from automatically accessing these benefits (Harris, 1995). In explaining the inherent power in the concept, Harris (1993) adds:
According whiteness actual legal status converted an aspect of identity into an external object of property, moving whiteness from privileged identity to a vested interest. The law's construction of whiteness defined and affirmed critical aspects of identity (who is white); of privilege (what benefits accrue to that status); and of property (what legal entitlements arise from that status). Whiteness at various times signifies and is deployed as identity, status, and property, sometimes singularly, sometimes in tandem. (p. 1725)
Whiteness as a legal status can take on and manifest in various ways. In the context of education, whiteness as property often takes on several forms including: access to advanced curricula, admissions into more prestigious/elite universities, highly qualified teachers, well-resourced schools that commonly serve all-white students, and the advantages that these opportunities offer (Ladson-Billings, 1998; Ladson-Billings & Tate, 1995; Pollack & Zirkel, 2013). To retain exclusive access and the benefits of these forms of property, holders of whitenesswhich in education contexts are often white parents, students, families, and community membersare commonly resistant to dismantling the existing system of racial inequality (Pollack & Zirkel, 2013). From this lens, then resistance to more equitable forms of education like school desegregation plans is an enactment of persons aiming to protect their property interests.
PROPERTY FUNCTIONS OF WHITENESS
Additionally, Harris (1993) provides four property functions of whiteness, which support the notion that whiteness truly does fit within the functional concept of property as constructed in the U.S. law. We employ three of the four property functions of whiteness because they were the most applicable to this study. First, Harris (1993) recognizes that property rights are traditionally alienable or transferrable, though not all types of property are. Whiteness turns out to be an exceptional type of property that is inalienable, meaning it cannot be transferred from one individual to the next. However, whiteness unlike other forms of property paradoxically relies on this non-transferrable attribute to enhance its value rather than disqualify it as a type of property. This value of whiteness exists upon black subordination (Harris, 1993). The paradox here is that whites can possess this property while maintaining a narrative that being white is neutral and embracing an ideology that justifies colorblindness and racially segregated schools.
Second, a property function of whiteness is the rights of use and enjoyment (Harris, 1993). Functioning as an aspect of identity and property interest, whiteness can be both experienced and deployed as a resource (Harris, 1995, p. 282). For example, to be white in America means that one has an expectation to be treated fairly, a right to pursue happiness, to buy the house of his or her choice, and send children to high quality schools, all without the direct and obvious consideration of race. A white person is free to "use and enjoy" whiteness whenever she or he takes advantage of the institutionalized privileges, embedded in places like schools and school districts that are conferred upon white people simply by virtue of their whiteness. Indeed, whiteness is [an] object of law and a resource deployed at the social, political, and institutional level to maintain control (Harris, 1995, p. 282). This property function gives holders of whiteness the privilege of choice, and can be applied to influence and even control aspects of educational inequality such as policies like Milliken.
Third, Harris (1993) argues that whiteness as property contains the absolute right to exclude. She notes that the right to exclude is the conceptual nucleus in which whiteness as property has taken shape (Harris, 1993, p. 1714). She further asserts that just as theorists have conceptualized property to include the exclusive rights of use, transferability, and possession, there was also the absolute right to exclude if you possessed any form of property. Put simply, whiteness as property has the ability to exclude those who are not white (Haney-Lopez, 1996) from schools, school districts, housing communities, and any other institution in U.S. society. Holders of whiteness enjoy its privileges and they can legally exclude those deemed to be non-white from encroaching upon their property because the law affirmed this exclusion as seen in policies like Milliken. Because of the laws history to protect whites property interest, Bell (1995) argues, The courts [function] as instruments for preserving the status quo and only periodically and unpredictably serving as a refuge of oppressed people (p. 302). Historically, education was provided for wealthy, white male children. That system has historically added others but never at the same level of access and never without a struggle. For example, consider the creation of six schools for whites and one for blacks in Detroit, which were established as unequal and maintained as such for decades.
Together, we argue that it is useful to view Milliken as a battle over property rights instead of solely as a fight over school desegregation. So, what were the property rights in this case? We contend the property rights were the entire suburban system of advantage with all of its benefits such as: schools with elite curricula, living in neighborhoods where property values of homes grew significantly compared to inner city Detroit, and access to good manufacturing jobs that had once been in Detroit. Thus, drawing on whiteness as property offers a useful lens to analyze and better understand Milliken.
To examine the context and contradictions in Milliken, we examined peer-reviewed literature about Milliken between 1970 and 2014. This time frame was selected because the case began in 1970 and 2014 marked the 40th anniversary of Millikens Supreme Court decision. To identify relevant literature, we searched ERIC; Education Source; PsycINFO (per EBSCO); Sociological Abstracts and Social Services (per Proquest); Academic Search Complete; and Hein Online for literature, using the search terms Milliken v. Bradley and Milliken. Our initial searches returned 112 sources. We examined all of the returned searches and, to analyze data sources that explicitly focused on Milliken, only included sources that had Milliken v. Bradley or Milliken in the title and/or abstract. In total, we examined 40 peer-reviewed articles. The articles emerged from various fields, including law (25 articles), education (11 articles), public/urban affairs (2 articles), and history (2 articles).
We also reviewed one full-length text8 that exclusively focuses on Milliken (Baugh, 2011a), and newspaper articles from the Detroit News and Michigan Chronicle. We read and examined the district court case, the sixth circuit appeals court case, the Milliken v. Bradley (1974) Supreme Court case, and other desegregation cases that were cited in Milliken. We examined these data until we reached saturation (Merriam, 1998); that is, until it seemed increasingly unlikely to add anything new or centrally important (Schutz, 2006, p. 695).
To analyze these data, we conducted a qualitative content analysis. Content analysis is a systematic procedure for reviewing and evaluating documents, which require that data be examined and interpreted to elicit meaning, gain understanding, and develop empirical knowledge (Bowen, 2009). Hence, we placed the 40 studies into a spreadsheet and organized them according to the name of study (in APA format), research question(s), theoretical or conceptual framework, methods, and key findings. We then used the three property functions of whiteness (i.e., the right to transfer, the right to use and enjoyment, and the right to exclude others) to examine Milliken in terms of its history, context, but more so, its process and Supreme Court decision. In doing so, using whiteness as property as a lens, we examined through comparison previous school desegregation cases, the U.S. Constitution, and Michigan state statutes that were in effect during the case. We next discuss our findings.
EXAMINING MILLIKEN THROUGH WHITENESS AS PROPERTY
In this section, we discuss how the Milliken decision reinforced materialized property rights for white, suburban students and school districts at the expense of African American students in Detroit Public Schools. As such, we suggest that the Milliken decision contains at least three contradictions that we situate as themesaccording to Harriss (1993) articulation of property functions of whiteness. We discuss these themes, which are acknowledging inequity but not disturbing race-based inequitable systems, restricting black educational rights and perpetuating white privilege, and exercising the right to maintain dual educational systems. Collectively, we refer to these contradictions as contours of privilege because, while they appear inconsistent with the Supreme Courts precedents, by examining these contours of privilege through a whiteness as property lens, we find they not only make sense but they reveal a pattern of privileging that is as old as the republic.
ACKNOWLEDGING INEQUITY BUT NOT DISTURBING RACIALLY INEQUITABLE SYSTEMS
In several school desegregation cases, the Supreme Court declared that when de jure segregation was found that it must be addressed. However, departing from this line of thinking, the Milliken decision acknowledged de jure segregation but did nothing to change the racially inequitable systems that created it. Lindquist (1975) notes positive law requires that three factors must be proven before public school segregation is found as a violation to the constitution: (1) a current condition of segregation, (2) the state has taken action or failed to take action with discriminatory intent, and (3) state action or inaction has exacerbated segregation conditions. Meeting all of these requirements, the Supreme Court agreed that the state of Michigan and the Detroit School Board violated the 14th Amendment rights of black children, and their intentional actions contributed to and aggravated racial segregation in Detroit Public Schools (Milliken, 1974, see also Lindquist, 1974).
Thus, legal precedent in previous federal school desegregation cases stated that where a clear constitutional wrong had been committed, the courts job was to provide a remedy that was congruent to the wrong (e.g., Brown, Swann, Green, Scotland Neck, etc.). Most noted is the Green v. New Kent County (1968) precedent that stated that if a constitutional violation is found, then the state must take whatever steps might be necessary to convert a unitary system in which racial discrimination would be eliminated root and branch (p. 437-438). With the Supreme Court acknowledging this wrong, it might appear puzzling to discern what the Supreme Court majority was contemplating when it concluded that black children have a right to attend integrated schools but only within a school system that is predominantly black and racially segregated. It is important to note that the final part of this sentence, though not stated so directly, is no less true. Indeed, in reality, the Supreme Courts decision ensured that black children in Detroit remained racially segregated, which is a clear example of acknowledging the wrong while still keeping the racial system of segregation intact or maintaining the status quo. The Supreme Courts action of keeping segregation intact starts to make sense only if we consider that the goal was to maintain the choice of the innocent white parents over the removal of the separation.
The preserving of the segregation and thereby maintenance of the inequitable status of the black district in Detroit is apparent in the remedy. What is less apparent is why. Consider the contradiction that develops on the question of how restrictive the remedy should be as the Supreme Court held that the removal of the remedy should be limited to Detroit-only, and should not include the other districts. This implies that all school districts are in some ways separate and independent from the state, which is contrary to Michigan statutes. The Supreme Court confirms its contradictory belief that Michigan is made up of independent and autonomous districts:
Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must be first shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district; i.e., specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation (Milliken, 1974, pp. 744745).
In stating incorrectly that school districts are independent and autonomous, the Milliken majority created a decision that has implications far beyond Michigan because the decision sent a message that there now was a limit in what could be done to engage predominantly white school districts in the process of remedying desegregation. Additionally, the decision demonstrates that the Supreme Court was unwilling to allow for a metropolitan remedy that would disturb this supposed school district independence, but more so white property interests (Harris, 1993). In building their argument from the premise of suburban autonomy, the Supreme Court leaves a white dominated racial caste system completely intact. This allowed whites to continue to flee Detroit for suburban districts and evade participation in school desegregation plans (Bell, 1975; Harris, 1993). To drive this point home about the Milliken decision, Harris (1993) argues:
In effect, the protection of the expectations of the local school boards that the de facto desegregation resulting from exogenous factors would be left undistributed was determined to be of greater significance than any constitutional injury caused by the state. (p. 1757)
What are these exogenous factors in Milliken? Exogenous factors may be ostensibly beyond de jure segregation and include whites ability to buy homes outside of Detroit to avoid residential segregation, schools in poor physical conditions, and an urban core that was underdeveloped. While whites may ostensibly choose a good school district that might include newer schools with a better curriculum, new physical plant, more resources, including teachers with more experience, they are allowed to do so freely. In essence, whiteness as property is manifested in these exogenous factors and had insulated suburban school districts from participating in a remedy for the injury to Detroit that they in part engendered, albeit indirectly through public and private actions to buy homes and build predominantly white schools in the suburbs that were deemed separate districts. Lest this seem to far-fetched, consider that the majority in cases like Griffin (1964) and Green (1968) that prevented white parents and students from exercising personal choice to use vouchers to attend white-only schools. In both cases, the court struck down the state statutes because they were developed to create two separate systems and maintain segregation.
Justice Douglas in his dissent argues squarely against the premise that suburban districts are autonomous and draws on Michigan law to challenge the notion that the districts are separate governmental units. He states, Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education (Milliken, 1974, p. 758). He continues, education in Michigan is a state project with very little completely local control, except that the schools are financed locally, not on a statewide basis (Milliken, 1974, p. 758). In our review of the Michigan state statutes, we also find that the state was responsible for controlling the boundaries of school districts and supervising the selection of school sites, an activity that was used to further the segregative effects by the local school districts (Jones, 1975; Lindquist, 1975). The statutes confirm that Michigan is one district, as opposed to separate, autonomous entities, and as a state, it is responsible for any segregative effects in violation of the 14th Amendment. Through deciding that school districts are autonomous and not agents of the state for desegregation remedial purposes, the Supreme Court reinforced the white, suburban right to exclude black children from desegregated education as contemplated by Brown. The positioning of Michigan as separate, autonomous districts demonstrate the Supreme Courts ambivalence to address the interlocking race-based systems that fostered white property interests and black subordination (Harris, 1993).
Further, Wright v. Council of the City of Emporia, 407 U.S. 451 (1972) and United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1972) are both cases where the Supreme Court, just two years prior to Milliken, prohibited state or local officials from carving out a new school district from an existing district, particularly when a district was in the process of dismantling a dual school system. The Supreme Court refused to allow redrawing of boundaries because it impeded desegregation efforts. The conclusion of the Supreme Court strongly suggested that recognizing and respecting state-drawn boundaries should not impede efforts designed to eventually secure federal fourteenth amendment rights of Black children. Freeswick (1975) agrees as he notes that these companion cases:
[A]ppear to stand for the proposition that, once a constitutional violation has been shown to exist and the inquiry has shifted to the appropriate remedy, school district boundary lines which impede the effectiveness of a desegregation plan can be crossed, regardless of whether they were established with segregative intent. (p. 513)
The point here is that maintaining exclusive white boundaries should not defeat the 14th Amendment rights of black students when a state violation has been found, regardless of segregative intent of the state. In essence, the Supreme Court allowed for white property interests to outweigh the 14th Amendment right of black students to attend a desegregated school that was on par with the predominantly white schools of the suburbs in terms of curriculum, resources, and physical plant.
Notwithstanding precedent and the firmly established federal court holdings striking down the strategy of drawing discriminatory district lines, the Supreme Court distinguished all of these cases from Milliken. For the Supreme Court majority, the rationale was that Milliken represented a single-district injury and therefore the constitution called for only a single-district remedy, unlike its previous cases. Moreover, in the Supreme Courts view, the constitution only required that they examine the question of the validity of a remedy mandating cross-district consolidation to remove the condition of segregation found to exist in only one district.
RESTRICTING BLACK EDUCATIONAL RIGHTS AND PERPETUATING WHITE PRIVILEGE
Bell (1980) argues that the American law is replete with examples where whites generally support legal policies that can provide equal rights to blacks, but only in cases where there is a tangible benefit to whites. Bell refers to this as interest-convergence noting that whites can back concrete policies that support blacks if there is an interest and no loss of their status of being white (Harris, 1993). To be clear, a contradiction appears in Milliken when these rights of blacks are seen as providing deprivations of whites accumulated benefits and property rights of suburban schools and neighborhoods, and all it affords (Harris, 1995; Pollack & Zirkel, 2013). It is at this point that white support for policies like Milliken significantly wane.
In essence, the Supreme Courts decision in Milliken to leave racially segregated school systems intact signified a departure from black students educational rights under Brown, toward maintenance of the racial status quo. The Supreme Court in Milliken acknowledged an inherent concept of whiteness as property because their decision held the rights of whites (presumed to be innocent and defenseless by the court) could not be disturbed for black children to have access to better schools and/or equitable educational opportunities. To hold whiteness as property confirms that there exists a right to enjoy its use and the related privileges, which include selecting the best school districts and taking comfort in knowing that this choice will not only be acknowledged by the law, but also protected even at the exclusion of others. Thus, any remedy to a 14th Amendment violation of blacks (a subordinate group throughout legal history and current law) can never be cured through proposing reduction or decreasing of the value of whiteness (a social, political, and legal attribute confirmed by that same legal history) and its educational right to exclude.
The Milliken decision demonstrates that the rights of whites and blacks exist on two different nonparallel lines, with white rights (represented as a horizontal line) on top and black rights (represented by a line increasing from left to right) on the bottom (see Figure 1). Think of these two lines as continua representing the progress of each groups rights over a period of time. As white, middle-class rights have continued on a horizontal trajectory, they have enjoyed social and cultural privilege that has been confirmed by the law. That continuum includes white supremacy, which has decreased in brutal and blatant manifestation, but not necessarily in power. Consistently, white supremacy, as represented by positioning is predicated on black subordination (the second line below), and is represented by the top line. Black rights as a continuum, which includes subordinate status, started below the white continuum and remains there for the entire period of time. Note that as black rights moved across time, there was some advancement and uplift, illustrated by the upward trajectory of the continuum and punctuated by significant points of progress. However, as that continuum approaches white rights, toward the right side in the illustration, questions arise regarding whether blacks may overtake rights of whites. This is where courts, and all other systems that are impacted by white supremacy, operate tenaciously to maintain this order. There exists a foundation of white supremacy that must be above black subordination so any approach by the latter toward white rights and the threat of convergence is regarded as improper. Even worse for whites, this focus on black rights could result in an unfathomable decrease in the actual property value of whiteness. The Milliken majority notes indirectly that even with the Brown decision, black rights simply cannot converge with, and eventually take precedent over, white rights. After all, history reminds us that the rights of each started in different places and Milliken confirmed that they are undeniably still in two very different places, especially when it comes to 14th Amendment rights.
Figure 1. White versus black educational rights over time
Our analysis, therefore, finds that the Supreme Court did not focus on providing a remedy to the state of Michigan and Detroit School Boards segregative acts. Rather, the majority focused on protecting white childrens interests or the property rights of whites to choose a school free of associating with blacks or one not located in urban spaces with substandard physical structures. While history of the United States and court cases corroborate that there are instances where black rights have over time approached white rights, Milliken serves as a reminder that white supremacy maintains its position by resting upon black subordination (see Figure 1).
As such, the Milliken majority perpetuated whites privilege and property interests to enjoy insulated, exclusive, and segregated educational experiences. Today, the inequities that were not challenged by the Milliken majority are confirmed in research in that the majority of white children in America attend schools that are over 70% white (Orfield & Lee, 2005). In preserving white privilege, the Supreme Court decentered the injury to blacks brought on by the state and Detroit School Boards intentional de jure segregation actions, and centered the district courts supposed aim on racial balancing. What the majority was really centering indirectly on was the freedom of whites to associate or not associate with blacksthe perpetuating of white privilege. Bell (1980) in his discussion on association rights of whites reminds us the Fourteenth Amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought to threaten the superior societal status of middle- and upper-class whites (p. 22). So by superficially attacking the proposed remedy, the Supreme Court accused the district court of using a metropolitan plan which, upon implementation, would leave "no school, grade or classroom . . . substantially disproportionate to the overall pupil racial composition" of the metropolitan area as a whole (Milliken, 1974, p. 740). Citing Swann, the Supreme Court found that desegregation, at least in the sense of dismantling a dual school system, does not require any particular racial balance (Milliken, 1974, pp. 739741).
Both the District Court and the Court of Appeals concluded that it was simply unreasonable to desegregate Detroit schools without involving the surrounding suburban districts. However, the Supreme Court majority only focused on the inappropriateness of racial balancing between districts. As Justice Marshall notes in his dissent, Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools (p. 785). It thus seems that the Supreme Courts intention was to subordinate and therefore restrict or just ignore Black educational rights to maintain white privilege immanent in white supremacy.
EXERCISING THE RIGHT TO MAINTAIN A DUAL EDUCATION SYSTEM
Justice Marshall offered a dissenting prophetic analysis about how the Milliken decision would further create dual education systems within metro Detroit:
In the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two citiesone white, the other blackbut it is a course, I predict, our people will ultimately regret. I dissent. (p. 815)
Indeed, Milliken did further racially divide Detroit and its suburbs. With the Supreme Courts decision, metro Detroit maintained dual education systemsa predominantly black school system in Detroit, and predominantly white school districts in the surrounding suburbs. Ironically, just a mere 20 years after Brown had struck down the separate but equal principle, the Supreme Court was literally sanctioning separation by insulating white districts. Hence, the Supreme Court legally protected the rights of whites in the suburbs to exclude non-whites from attending their schools, a move Brown sought to eliminate from occurring. Baugh (2011b) argues, Because of rigid housing segregation in the suburbs, few [B]lack students, if any, were in a position to attend these schools (p. 7). The Supreme Court thus protected a structure of the state school system that portends the segregation across metropolitan school districts. While Milliken did not create the dual education system in Detroit and its adjacent suburbs, it made it nearly impossible to remedy it (Baugh, 2011b). Considering the proposal of the Milliken majority in the current way of viewing school districts may cause one to overlook the fact that Justice Douglas repeats the arguments that confirm Michigan is the school district and Detroit and surrounding entities are mere machinations of this one state district. Any alternative is to operate as a dual system that is indeed segregated.
Somehow the Milliken majority, in its focused attempt to maintain dual school systems within metro Detroit (including suburban districts), omitted the definition of desegregation and concluded that it should be kept in place because of local control and proposed complexity of the administrative burden of fashioning a multi-district remedy (Lindquist, 1975). Baugh (2011b) contends, By focusing on whether specific decisions by suburban school officials had established or promoted segregation, the courts missed a crucial point (p. 7). Invoking Brown to make the point, Douglas notes, States create and nurture a segregated school system, just as surely as did those States involved in Brown when they maintained dual school systems (Milliken, 1974, p. 761).
Why did the Supreme Court majority still support local control when the evidence pointed so clearly to a state violation by the school board? This is a clear contradiction and a disingenuously constructed argument that goes beyond reasonable bounds, and thus the Milliken decision maintains two racially separated educational systems by de facto. Consequently, Harris (1993) notes that while Brown struck down the legal segregation, white privilege and legal entitlements that arise from a history of societal desegregation and Black subordination remainedand these enabled whites to establish and maintain a dual education system as long as they subscribed to a new form of whiteness as property. She writes:
Brown I's dialectical contradiction was that it dismantled an old form of whiteness as property while simultaneously permitting its reemergence in a more subtle form. White privilege accorded as a legal right was rejected, but de facto white privilege not mandated by law remained unaddressed. In failing to clearly expose the real inequities produced by segregation, the status quo of substantive disadvantage was ratified as an accepted and acceptable base linea neutral state operating to the disadvantage of Blacks long after de jure segregation had ceased to do so. (p. 1753)
In other words, though Brown struck down de jure segregation, neither it nor Milliken was able to remove de facto segregation.
If we examine the Milliken opinion in the context of Brown, at first glance we find a retrenchment from the support of the idea of equal educational opportunity. Upon closer examination we realize that this is not an aberration at all. Indeed, we conclude that what is really present in the Milliken decision, though not clearly visible initially, is a natural extension of an undisturbed racially separate educational system that draws its strength from its ability to maintain whiteness as property. If we consider the continua illustration in Figure 1, we see that the line of whites rights has not decreased in power and influence. It is still above black rights and still moving forward (see Figure 1). Harris (1993) agrees that this undisturbed system reinforces the right to maintain a dual education system, and white privilege remains even after the legal segregation was struck down in Brown I. This whiteness exists paradoxically below the radar of the law as it not illegal to hold this attribute, though its maintenance and membership are supported by the law. Furthermore, the social systems in America confirm that those not deemed white are precluded from legally changing their status in such a way that provides access to all of the related privileges. Whatever the phrase used to refer to it, whiteness as property has been a consistent and persistent force that maintains two educational systems, one white and one black.
CONCLUSION AND IMPLICATIONS: SOMEWHERE BETWEEN PLESSY AND BROWN?
In analyzing Milliken it is evident that the Supreme Court protected white property interests in suburban districts. In turn, the Supreme Court failed to honor the educational rights of Black children in Detroit because doing so would disturb the existing racial order that legally reproduced white privilege. Looking through a whiteness as property lens, the Milliken decision is not really an aberration, but rather the natural consequence of a society that privileges white property interests at nearly any cost (Bell, 1995; Harris, 1993). Thus, achieving equitable educational opportunities within and across metropolitan regions, especially for African American children, has and continues to be a struggle (Gooden, 2004; Jones, 2004; Ladson-Billings & Tate, 1995). At the core of the struggle, black parents wanted and still want the best education for their children (Baugh, 2011a, 2011b; Bell, 1975). Yet, to focus on the best education for black children means to center it in policy efforts and Supreme Court decisions. Obviously we must use a lens that helps us understand how to decenter whiteness before we can adequately fulfill that task.
Moreover, we cannot unequivocally assert that a metropolitan remedy as originally suggested in Milliken would have disrupted white, suburban property rights. We, however, agree with Baugh (2011b) who posits, it seems reasonable to assume that urban schools would not have deteriorated so badly if white and black children had been required to attend the same schools (p. 7). At the same time, as learned from Brown and other cases, school desegregation policy does not guarantee its implementation. In addition, a metropolitan remedy could have more quickly incited the proliferation of private, white schoolsas was done in the South to evade the Brown decision (see, e.g., Green, 1968)where the financial barriers to entry would have almost assured white exclusivity. Thus, in light of these realities along with the Supreme Courts hesitation to support issues of racial equity through desegregation polices and the urgency to provide equitable educational opportunities for African American students, we argue for education policies that take into account a both/and approach to metropolitan desegregation. Milliken suggests a need for metropolitan school desegregation policies that extend beyond mere racial balancing, as well as a move toward dismantling the interlocking racial systems that perpetuate housing segregation and white property interests at the expense of everyone else. Therefore, desegregation efforts that focus exclusively on schools are too narrow, but should extend into every aspect of social life such as housing, employment, law, and healthcare.
The reality that American public schools are still racially segregated and unequal cannot be overlooked (Holme & Finnigan, 2013). While it is imperative to continue to work toward racial desegregation in U.S. schools, many African American students, in racially segregated schools, need immediate access to high-quality, equitable education. Additional efforts could focus on providing equitable funding and resources to public schools within metropolitan areas despite racial demographics (Gooden, 2004), both public and charter. Again, equalizing resources and access to opportunity were major impetuses for Black parents filing Milliken (Jones, 1992). Reconsidering community controlled schools, as well as black-owned and operated schools, which some Black parents in Detroit wanted, deserves more empirical attention.
Finally, the Supreme Court should revisit Milliken. Although it is very difficult to overturn a Supreme Court decision, states could consider amending the Constitution, which would require local mobilization across the nation for metropolitan school desegregation. This would also help align state and school district policies with efforts for equitable educational opportunities for African American students. We hope that this analysis will inform future efforts to promote racial equity within and across school district lines as the Supreme Courts decision in Milliken left metropolitan school desegregation somewhere between Plessy and Brown and the contours of privilege in place.
1. In this article, we use the terms African American and black interchangeably.
2. Throughout this paper, we use the terms integration and desegregation to describe Milliken. Though these terms have varying meanings and we personally differentiate between them, we use integration because that was the language used during the case.
3. We hereafter use Milliken to refer to the Milliken I decision, although Milliken II was tried in 1977.
4. In this paper, we use the terms metropolitan to also mean inter- and cross-district interchangeably.
5. Many of the cases include ones that we listed earlier in the manuscript, as well as San Antonio School District v. Rodriguez (1973), among others.
6. The school also met in the basement of Bethel AME Church in Detroit.
7. According to Mirel (1999), this board was responsible for substantially increasing the number of black administrators and teachers and mandating the use of multicultural material throughout the curriculum (p. 298).
8. Based on our research Joyce Baugh (2011a) provides a rich and detailed description about Milliken in her text The Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation. To our knowledge, this is the only full-length text devoted exclusively to Milliken.
Alemán, E. (2006). Is Robin Hood the Prince of Thieves 1 or a pathway to equity? Applying critical race theory to school finance political discourse. Educational Policy, 20, 113142.
Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969).
Baugh, J. A. (2011a). The Detroit school busing case: Milliken v. Bradley and the controversy over desegregation. Lawrence, KS: University of Kansas Press.
Baugh, J. A. (2011b). A wrong without a remedy: Milliken v. Bradley and the controversy over school desegregation. The Court Legacy, 18(3), 17.
Bell, D. (1975). Running and busing in twentieth-century America. Journal of Law and Education, 4(1), 214217.
Bell, D. (1980). Brown and the interest-convergence dilemma. In D. Bell (Ed.), Shades of Brown: New perspectives on school desegregation (pp. 90106). New York: Teachers College Press.
Bell, D. (1995). Whos afraid of Critical Race Theory. University of Illinois Law Review, 29(3), 11791192.
Bischoff, K. (2008). School district fragmentation and racial residential segregation: How do boundaries matter? Urban Affairs Review, 44, 182217.
Bowen, G. A. (2009). Document analysis as a qualitative research method. Qualitative Research Journal, 9(2), 2740.
Brown v. Board of Education, 347 U.S. 483 (1954).
Brown v. Board of Education, 349 U.S. 294 (1955).
Burton, C. M., Stocking, W. & Miller, G. K. (1922). The city of Detroit, Michigan, 1701-1922. Chicago, IL: SJ Clarke Publishing Co.
Cashin, S. (2014). Place, not race: A new vision of opportunity in America. Boston, MA: Beacon Press.
Clotfelter, C. T. (1999). Public school segregation in metropolitan areas. Land Economics, 74(4), 487504.
Crenshaw, K. (1988). Race, reform, and retrenchement: Transformation and legitimation in antidiscrimination law. Harvard Law Review, 101 (7), 13311387.
Crenshaw, K. (2011). Twenty years of Critical Race Theory: Looking back to move forward. Connecticut Law Review, 43(5), 12551346.
Crenshaw, K., Gotanda, N., Peller, G., & Thomas, K. (1995). Critical Race Theory: The key findings that formed the movement. New York, NY: The New Press.
Deal v. Cincinnati Board of Education, 244 F. Supp. 572 (S.D. Ohio 1965).
DeCuir, J. T., & Dixson, A. D. (2004). "So when it comes out, they aren't that surprised that it is there": Using critical race theory as a tool of analysis of race and racism in education. Educational Researcher, 33(5), 2631.
Delgado, R. (Ed.). (1995). Critical race theory: The cutting edge. Philadelphia, PA: Temple University Press.
Delgado, R., & Stefancic, J. (2001). Critical Race Theory: An introduction. New York, NY: New York University Press.
Dixson, A. D., & Rousseau, C. K. (2005). And we are still not saved: Critical race theory in education ten years later. Race Ethnicity and Education, 8(1), 727.
Farmer, S. (1884). The history of Detroit and Michigan or the metropolis illustrated: A chronological encyclopedia of the past and present. Detroit, MI: Silas Farmer & Co.
Frankenberg, E., Lee, C., & Orfield, G. (2003). A multiracial society with segregated schools: Are we losing the dream? Cambridge, MA: Harvard University Civil Rights Project.
Frankenberg, E., & Orfield, G. (2012). Educational delusions?: Why choice can deepen inequality and how to make schools fair. Oakland, CA: University of California Press.
Freeswick, J. R. (1975). Milliken v. Bradley. Hofstra Law Review, 3, 487515.
Gooden, M. A. (2004). A history of black achievement as impacted by federal court decisions in the last century. Journal of Negro Education, 73(7), 230-238.
Green v. County School Board of New Kent County, Va., 391 U.S. 430 (1968).
Griffin v. County School Board of Prince Edwards County, Va., 363 U.S. 206 (1964).
Haney-Lopez, I. H. (1996). White by law: The legal construction of race. New York: New York University Press.
Harris, A. (1994). Forward: The Jurisprudence of reconstruction, 82, 741743.
Harris, C. (1993). Whiteness as property. Harvard Law Review, 106, 17071791.
Harris, C. (1995). Whiteness as property. In K. Crenshaw, N. Gotanda, G. Peller, & K. Thomas (Eds.), Critical race theory: The key writings that formed the movement. (pp. 276291). New York, NY: The New Press.
Hochschild, J. L., & Scovronick, N. B. (2004). The American dream and the public schools. New York, NY: Oxford University Press.
Holme, J. J., & Finnigan, K. S. (2013). School diversity, school district fragmentation and metropolitan policy. Teachers College Record, 115(11), 129.
Horsford, S. D. (2010). Mixed feelings about mixed schools: Superintendents on the complex legacy of school desegregation. Educational Administration Quarterly, 46, 287321.
Jones, J. M. (2013). Redevelopment and race: Planning a finer city in postwar Detroit. Detroit, MI: Wayne State University Press.
Jones, N. R. (1975). An anti-Black strategy and the Supreme Court. Journal of Law and Education, 4(1), 203208.
Jones, N. R. (1978). Metropolitan desegregation: Where are the courts heading? Urban Review, 10(2), 128135. doi:10.1007/BF02175382
Jones, N. R. (1992). Milliken v. Bradley: Browns troubled journey north. Fordham Law Review, 61(1), 4956.
Jones, N. R. (2004). The judicial betrayal of BlacksAgain: The Supreme Courts destruction of the hopes raised by Brown v. Board of Education. Fordham Urban Law Journal, 32, 109.
Katzman, D. M. (1973). Before the ghetto: Black Detroit in the nineteenth century. Chicago, IL: University of Illinois Press.
Keyes v. School District No.1, Denver, Colorado, 413 U.S. 189 (1973).
Ladson-Billings, G. (1998). Just what is critical race theory and whats it doing in a nice field like education? International Journal of Qualitative Studies in Education, 11(1), 724.
Ladson-Billings, G., & Tate, W. F. (1995). Toward a critical race theory of education. Teachers College Record, 97(1), 4768.
Lindquist, R. (1974). The Supreme Court considers a school desegregation remedy for metropolitan areas: Bradley v. Milliken. Educational Researcher, 3(6), 1012.
Lindquist, R. (1975). Bradley v. Milliken: Was busing really the question? Educational Researcher, 4(3), 1620.
Lynn, M., & Dixson, A. D. (Eds.). (2013). Handbook of critical race theory in education. New York: Routledge.
Matsuda, M., Lawrence III, C. R., Delgado, R., & Crenshaw, K. W. (1993). Words that wound. Critical race theory, assaultive speech, and the first amendment. Boulder, CO: Westview Press..
McLaurin v. Oklahoma State Regents for Higher Ed., 339 US 637 (1950).
Meinke, S. (2011). The northern battle for desegregation. Michigan Bar Journal, 90(9), 2023.
Merriam, S. B. (1998). Qualitative research and case study applications in education (2nd ed.). San Francisco, CA: Jossey-Bass.
Milliken v. Bradley, 338 F. Supp. 582 (1971).
Milliken v. Bradley, 345 F. Supp. At 916.
Milliken v. Bradley, 418 U.S. 717 (1974).
Mirel, J. (1999). The rise and fall of an urban school system: Detroit, 1907-81. Ann Arbor, MI: University of Michigan Press.
Missouri v. Jenkins, 515 U.S. 70 (1995).
Moehlman, A. B. (1925). Report of a study of the sketch plans of a proposed high school in consolidated agricultural district no. 1, Grosse Pointe, Wayne County, Michigan. Detroit, MI.
Moreno, P. (2008). Verdict of history: The history of Michigan jurisprudence through its Significant Supreme Court cases. Retrieved from http://www.michbar.org/file/barjournal/article/documents/pdf4article1453.pdf
Orfield, G. (2009). Reviving the goal of an integrated society: A 21st century challenge. Los Angeles: Civil Rights Project.
Orfield, G. (2014). Tenth annual brown lecture in education research: A new civil rights agenda for American education. Educational Researcher, 43, 273292.
Orfield, G., & Eaton, S. (1997). Dismantling desegregation: The quiet reversal of Brown v. Board of Education. New York, NY: The New Press.
Orfield, G. & Lee, C. (2005). Why segregation matters: Poverty and educational inequality. The Civil Rights Project at Harvard University. Retrieved from http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/why-segregation-matters-poverty-and-educational-inequality
Orfield, M. (2015). Milliken, Meredith, and metropolitan segregation. UCLA Law Review, 62, 364462.
Parents Involved in Community Schools v. Seattle School District, No. 1, 551 U.S. 701 (2007).
Parker, L. (1998). 'Race is race ain't': An exploration of the utility of critical race theory in qualitative research in education. International Journal of Qualitative Studies in Education, 11, 4355.
Plessy v. Ferguson, 163 U.S. 537 (1896).
Pollack, T. M., & Zirkel, S. (2013). Negotiating the contested terrain of equity-focused change efforts in schools: Critical race theory as a leadership framework for creating more equitable schools. The Urban Review, 45, 290310. doi:10.1007/s11256-012-0231-4
Radelet, J. (1991). Stillness at Detroits racial divide: A perspective on Detroits school desegregation court order? 1979? 1989. The Urban Review, 23(3), 173190.
Riddle, D. (2000). Race and reaction in Warren, Michigan, 1971 to 1974: Bradley v. Milliken and the cross-district busing controversy. The Michigan Historical Review, 149.
Roberts v. City of Boston, 59 Mass. 198 (1849).
Russo, C., Harris, J. J., & Sandidge, R. F. (1994). Brown v. Board of Education at 40: A legal history of equal educational opportunities in American public education. The Journal of Negro Education, 63, 297309.
Ryan, J. (2011). Five miles away, a world apart: One city, two schools and the story of modern educational inequality. New York, NY: Oxford University Press.
Sandford v. Scott, 60 U.S. 393 (1857).
Schutz, A. (2006). Home is a prison in the global city: The tragic failure of school-based community engagement strategies. Review of Educational Research, 76, 691743.
Sedler, R.A. (1978). Discussion of papers presented by Nathaniel R. Jones and Daniel D. Polsby. Urban Review, 10, 149157.
Siegel-Hawley, G. (2013). City lines, county lines, color lines: The relationship between school and housing segregation in four southern metro areas. Teachers College Record, 115(5), 145.
Solórzano, D. G. (1997). Images and words that wound: Critical race theory, racial stereotyping, and teacher education. Teacher Education Quarterly, 24(3), 519.
Solórzano, D. G., & Yosso, T. J. (2002). Critical race methodology: Counter-storytelling as an analytical framework for education research. Qualitative Inquiry, 8(1), 2344.
Sugrue, T. J. (1996). The origins of the urban crisis: Race and inequality in postwar Detroit. Princeton, NJ: Princeton University Press.
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
Sweatt v. Painter, 339 U.S. 629 (1950).
Tate, W. F. (1997). Critical race theory and education: History, theory, and implications. Review of Research in Education, 22, 195247.
United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1972).
U.S. Census Bureau. (1930). Census of population and housing, 1930. Retrieved from http://www.census.gov/prod/www/decennial.html
U.S. Census Bureau. (1960). Census of population and housing, 1960. Retrieved from http://www.census.gov/prod/www/decennial.html
Workman v. The Board of Education of Detroit. 18 Mich 400 (1869).
Wright v. Council of Emporia, 407 U.S. 451 (1972).
Yosso, T. J. (2005). Whose culture has capital? A critical race theory discussion of community cultural wealth. Race Ethnicity and Education, 8(1), 6991. doi:10.1080/1361332052000341006