What Do You See? The Supreme Court Decision in PICS and the Resegregation of Two Southern School Districts
by Celia Rousseau Anderson - 2011
Background/Context: In June 2007, the U.S. Supreme Court ruled to prohibit student assignment on the basis of race. In Parents Involved in Community Schools v. Seattle School District No. 1 (hereafter referred to as PICS), the court deemed race-based strategies used to voluntarily desegregate school districts to be unconstitutional. Although the ruling certainly has important practical implications for the desegregation of U.S. schools, the PICS decision is also significant for what it reflects about the climate surrounding school segregation.
Purpose/Objective/Research Question/Focus of Study: One purpose of this article is to examine larger landscape of contemporary views in which the PICS decision is situated. As such, the focus is less on the specific impact on student assignment policies and more on the broader picture of desegregation and education. A second purpose of this article is to illustrate the important role that critical race theory (CRT) can play in viewing these issues. Specifically, the author uses CRT to analyze the historical and contemporary conditions of two adjacent school districts and to connect the conditions in these districts to the PICS ruling. Insofar as neither district, at least on the surface, was directly impacted by the PICS decision in a practical sense, these cases provide a different means through which to understand the potential significance of PICS.
Research Design: This article is an analytic essay that draws on both historical accounts and contemporary descriptive data from the two school districts.
Conclusions/Recommendations: The data reviewed in this article highlight the ongoing resegregation of the two districts. I argue that this resegregation is tied to collective definitions of segregation that are supported by color-blindness and the valuing of private choice. These collective definitions are also clearly reflected in PICS and represent the connection between the Supreme Court decision and the conditions in two districts that ostensibly are not impacted by the ruling. Insofar as these collective definitions shape the way that we view school segregation, we will not be able to address the ongoing inequity tied to segregation until we change what we see.
In June 2007, the U.S. Supreme Court ruled to prohibit student assignment on the basis of race. In Parents Involved in Community Schools v. Seattle School District No. 1 (hereafter referred to as PICS), the court ruled that race-based strategies currently used to voluntarily desegregate school districts are unconstitutional. For those school districts that were using or would at some point desire to use race-conscious measures to ensure school desegregation, the PICS decision has important practical implications. However, my purpose in this article is not to consider the specific impact on student assignment policies. Rather, I seek to widen the lensto zoom out from PICS. In particular, I consider elements of the larger landscape of contemporary views in which the PICS decision is situated. Instead of looking at the specific impact of PICS, I seek to understand what PICS indicates about the broader picture of desegregation and education. A second purpose is to illustrate the important role that critical race theory (CRT) can play in viewing these issues. I seek to accomplish these goals through the examination of the cases of two adjacent districts, one suburban and one urban. Insofar as neither district, at least on the surface, was directly impacted by the PICS decision, these cases provide a different means through which to understand the significance of PICS.
CRITICAL RACE THEORY
Critical race theory originated in legal studies in the 1980s. At that time, legal scholars examining issues of race were searching for a vocabulary that more explicitly articulated the myriad ways that racism shapes the experiences of persons of color. They were searching for a lens that would bring into focus the racial inequities in society and the law (Crenshaw, Gotanda, Peller, & Thomas, 1995). Over the past few decades, this effort to shape a new lens has produced a substantial body of legal scholarship that highlights the operation of race-related structures in law and society.
In a 1995 article in Teachers College Record, Ladson-Billings and Tate argued that CRT could fill a similar void in the study of education. They asserted that race remained undertheorized in educational scholarship and that CRT could provide the lens necessary to better understand the role of race and racism in U.S. education. Since the publication of that article, CRT has been used by several researchers, both within and outside the United States, to analyze various aspects of education.
These analyses have typically reflected one of two different approaches to the use of CRT in education. Several scholars have focused on the application of specific constructs from legal literature on CRT. These constructs include Whiteness as property, interest convergence, and restrictive versus expansive views of equality (Decuir-Gunby, 2006; Donnor, 2006; Rousseau & Tate, 2003; Solorzano, 2001). These applications of the constructs of CRT are critical and have made important contributions to the body of CRT scholarship in education. Another application of CRT has been as an overarching analytical framework. As opposed to using specific constructs from the legal literature on CRT, others have approached the analysis of education using CRT as a more holistic frame (Gillborn, 2008; Solorzano & Yosso, 2002). These two different approaches can be compared to the difference between zooming in and zooming out. My goal in this article is to zoom out. I do not select particular constructs on which to focus, but rather seek to illustrate CRTs utility as an overarching analytical framework. To do this, I apply the frame outlined by Gillborn in his analysis of the British educational system. Specifically, Gillborn used four key themes of CRT as the foundation of his analysis: (1) the proposition of racism as endemic; (2) a call to context; (3) a critique of liberalism; and (3) a revisionist critique of civil rights laws. I draw on these four themes to construct the frame through which to examine the conditions in the two districts described in this article.
RACISM AS ENDEMIC
A central premise of CRT is the understanding of racism as endemic, as a normal part of everyday life (Gillborn, 2008; Matsuda, Lawrence, Delgado, & Crenshaw, 1993). Understanding the ubiquitous nature of racism requires a perspective that can separate racism from intent. Racism in CRT is not only used to refer to the most obvious and blatant acts on the part of individuals or groups; it also describes the more subtle and hidden operations of power that have the effect of disadvantaging one or more minority ethnic groups (Gillborn, p. 27).
This perspective on the endemic nature of racism is reflected in the concept of racial realism as outlined by legal scholar Derrick Bell (1992). The theory of racial realism involves the assertion that American racial history has demonstrated both steady subordination of blacks in one way or another and, if examined closely, a pattern of cyclical progress and cyclical regression (p. 98). In other words, racial realism does not hold a view of steady or ongoing progress with respect to racial justice. Instead, racial realists seek to understand the ebb and flow of racial progress and retrenchment through a careful examination of the historical conditions that have contributed to changes in the cycle (Delgado & Stefancic, 2001, p. 18).
A second theme of racial realism, as outlined by Bell (1992), involves the centrality of economics and the importance of examining the position of people of color in the socioeconomic realm. According to CRT scholars, this attention to material sheds more light on the cycle of racial progress than consideration of more psychological conditions, such as attitude or intent (Delgado, 2001). Like Bell, Delgado argued that race operates as an ordering principle, not simply with regard to attitudes and beliefs, but also in the allocation of resources. Racial realism acknowledges that lack of conscious malice or intent does not mitigate the oppressive effects of institutional racism and the impact on the material conditions of persons of color (Delgado, 2001, 2003). The core of the racial realist perspective is the acknowledgement that discriminatory beliefs, stereotypes, and attitudes toward persons of color could disappear overnight, but the lives of persons of color would change only minimally (Delgado & Stefancic, 2001). Such is the endemic nature of racism.
CALL TO CONTEXT
Another theme of CRT is the call to context. This call to context reflects two different strands that run through CRT scholarship. The first is a challenge to ahistoricism. It reflects the need to understand contemporary conditions through the examination of history. According to Matsuda and colleagues (1993), critical race theorists adopt a stance that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage (p. 6). Putting contemporary conditions into historical perspective serves as a means to make clear the race-based mechanisms that have contributed to inequity. This historical grounding is necessary to counteract perspectives that would seek to disconnect current conditions from racism by separating the present from the past.
A second, closely related strand of the call to context is the centrality given to the experiences of persons of color (Gillborn, 2008). According to Matsuda et al. (1993), critical race theory insists on recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society (p. 6). CRT asserts the importance of the personal and community experiences of people of color as sources of knowledge. CRT scholars argue that we should shift the frame (Crenshaw, 1989) or look to the bottom (Matsuda, 1995) to value the perspectives of persons of color. Those who have experienced discrimination speak with a special voice to which we should listen (Matsuda, 1995, p. 63). In this way, the CRT call to context is a challenge to the majoritarian story through the foregrounding of the counternarratives of people of color. In particular, these counternarratives and the historical context call into question the liberal discourse with respect to equity and justice.
CRITIQUE OF LIBERALISM
Another key theme of CRT is its critique of liberalism (Gillborn, 2008). According to Delgado and Stefancic (2001), critical race scholars are discontent with liberalism as a framework for addressing Americas racial problems (p. 21). In particular, CRT calls into question liberalisms faith in the legal system as an instrument of justice (Ladson-Billings, 1999). This critique of liberalism reflects frustration on the part of legal scholars with the inability of traditional legal discourse to address anything except the most obvious and crude versions of racism (Gillborn, 2008, p. 29). Although nominally committed to ideals of justice, CRT scholars note that liberalism and liberal theory often serve to preserve the status quo by failing to more deeply critique the existing racial hierarchy. For example, with respect to liberal positions on affirmative action, Lawrence (2001) noted that liberalisms focus on fair process and bad actors and its agnosticism toward continuing conditions of subordination allow the liberal defender of affirmative action to champion racial justice without confronting the moral question of whether he can define as just a society still significantly separate and unequal (pp. 941942). In contrast, CRT focuses on the inequitable conditions that can exist even absent overt or intentional racial discrimination (Lawrence, 2001).
One of the key principles of liberalism called into question by CRT is the ideal of colorblindness (Crenshaw et al., 1995; Gotanda, 1991). Crenshaw and colleagues (1995) noted that integration, assimilation, and colorblindness have become the official norms of racial enlightenment. The dominant discourse positions colorblindness as an ideal. The writings of several scholars within CRT in legal studies seek to problematize this construction of colorblindness.
CRT indicates how and why the contemporary jurisprudence of colorblindness is not only the expression of a particular color-consciousness, but the product of a deeply politicized choice. . . . The appeal to colorblindness can thus be said to serve as part of an ideological strategy by which the current Court obscures its active role in sustaining hierarchies of racial power. (Crenshaw et al., p. xxviii)
Like Crenshaw and colleagues, Gotanda also asserted that the color-blind ideal in the law serves to maintain racial subordination. In his analysis, Gotanda proposed that the Supreme Court uses the concept of race in different ways. One of those ways is what Gotanda referred to as formal-race.
Formal-race refers to socially constructed formal categories. Black and white are seen as neutral, apolitical descriptions reflecting merely skin color or country of origin. Formal-race is unrelated to ability, disadvantage, or moral culpability. Moreover, formal-race categories are unconnected to social attributes such as culture, education, wealth, or language. This unconnectedness is the defining characteristic of formal-race. (p. 4)
Gotanda went on to suggest that color-blind analyses of the law use race to mean formal-race. Because formal-race is unconnected to social realities, a color-blind analysis often fails to recognize connections between the race of an individual and the real social conditions underlying litigation or other constitutional dispute (Gotanda, p. 7). As a result, CRT scholars view colorblindness not as part of the solution but as part of the problem in an effort to achieve racial justice. According to Delgado and Stefancic (2001), only color-conscious efforts to change the ordinary business of society will serve to relieve racial injustice and inequity. However, as Haney-Lopez (2007) noted, such color-conscious efforts are often constructed as a form of racism in contemporary society. In this form of reactionary color-blindness, race-conscious remedies are put on the same plane as racial subjugation, and such comparison is justified under the Equal Protection Clause. The most striking feature of contemporary colorblindness lies not in the mere fact of its opposition to race-conscious remedies, . . . but in the strict doctrinal equation of affirmative action and Jim Crow racism (Haney-Lopez, p. 989).
Another aspect of the critique of liberalism involves questioning the dominant discourse regarding racial progress. In particular, CRT scholars have offered revisionist accounts of civil rights laws and other parts of the history of the United States. Revisionist history reexamines Americas historical record, replacing comforting majoritarian interpretations of events with ones that square more accurately with minorities experiences (Delgado & Stefancic, 2001, p. 20). These revisionist accounts most often reflect the racial realist perspective through the focus on the means by which society [systematically] allocates privilege, status, and wealth (Delgado, 2001, p. 2283). Moreover, such accounts not only attend to the material impact of historical events on persons of color; revisionist accounts also examine the material motivation for decisions that have shaped the lives of people of color throughout U.S. history (Bell, 2004).
One classic example of a revisionist history is Bells (1980, 2004) analysis of the Supreme Court decision in Brown v. Board of Education. Bells historical account of international conditions and their economic and political impact provides an alternative view of the Brown decision. In contrast to the majoritarian view of Brown as a high point of racial justice in U.S. history, Bell argued that Brown was shaped by materialist, not idealist, forces. Rather than a decision intended to promote civil rights for African American citizens, Brown reflected an effort to combat Communism by improving the image of the United States on an international stage (Dudziak, 2000). As part of this revisionist history, Bell (2004) called into question not only the motivation for the decision, but also the strategy pursued by civil rights advocates: Zealous faith in integration blinded us to the actual goal of equalizing educational opportunities for black children, and led us to pursue integration without regard to, and often despite, its ultimate impact on the well-being of students (p. 113). Revisionist histories such as Bells train a different lens on the comforting stories of racial progress, revealing in some cases a very different picture while at the same time shedding light on lessons to be learned regarding the nature of racial inequity.
THE CRT FRAMEWORK
The lens that I apply in this article is composed of these four interrelated themesthe endemic nature of racism, revisionist history, critique of liberalism, and call to context. My goal is to demonstrate how the application of this framework can illuminate particular features of the specific cases of two school districts and the larger image of the meaning of PICS. In addition, as a unifying framework, CRT highlights how PICS is related to the cases of two school districts that on the surface are unaffected by the Supreme Courts decision regarding student assignment.
THE TWO SCHOOL DISTRICTS: AN INTRODUCTION
Immediately following the Supreme Court ruling in PICS, the local newspaper in Memphis, Tennessee, reported the reactions of personnel from the two school districts that serve most of the Memphis metropolitan area. In both cases, the medias reports indicated that administrators from the districts held the view that the Supreme Court ruling in PICS was irrelevant to the operation of their respective districts.
In the aftermath of the PICS ruling, an administrator from the Memphis City Schools (MCS) was quoted as stating that the district will not be affected by the ruling because it doesnt use race in its planning (Melvin, 2007a, p. B1). In the same article, the administrator went on to suggest that Even if city schools wanted to create diversity, it would be impossible (p. B1). The reason given to explain the implausibility of creating diversity was the high percentage of students of color in the district. The district has a more than 90 percent minority population, making integrated schools nearly impossible (p. B1). In fact, the demographic composition of the district at the time of the PICS decision was 85% African American, 5.3% Hispanic,1 8.4% White, and 1.3% Asian or Native American. Because of the large number of students of color, the creation of diversity across the district was not viewed as a viable option, regardless of whether race-conscious measures were available.
Like MCS, the newspaper reports regarding the response of personnel from the Shelby County Schools (SCS) suggested that the ruling was irrelevant, but for different reasons. One reason for the lack of impact on the SCS was the existence, at the time of the PICS ruling, of an active desegregation order. As a result of this active case, the district would have to give consideration to race to ensure that the conditions of the desegregation order were met. Until the order was lifted, the district was exempt from the Supreme Court ruling in PICS. However, the Supreme Courts decision did not appear to alter what the district would do once released from the court order. According to the newspaper article, when asked about the PICS ruling, the district superintendent stated that the district had no plans to implement methods to ensure diversity after the end of the desegregation order, arguing that he did not see that theres a need (Melvin, 2007a, p. B1). This view appeared to be related, at least in part, to the belief that school segregation was no longer a problem. In fact, the attorney for the school district referred to segregation as a non-issue in SCS (Melvin, 2007b).
At the time of the PICS ruling, SCS were 59.6% White, 32.0% African American, 3.6% Hispanic, and 4.7% Asian or Native American. Although desegregation was at least nominally possible in SCS, the picture painted by district personnel was that, beyond the legal requirements of the existing court order, desegregation was not a priority.
HISTORICAL CONTEXT AND CONTEMPORARY CONDITIONS
MEMPHIS CITY SCHOOLS
Historical context. Much like the initial reaction to the ruling of the Supreme Court in PICS, the response of Memphis City Schools representatives to the Brown decision outlawing de jure segregation was not one of alarm. The president of the board of education was quoted in the local newspaper at the time of the Brown decision: We have been expecting this to happen for a while . . . we believe our Negroes will continue using their own school facilities since most of them are located in the center of Negro population areas (City Schools, 2005). In fact, through new school construction and school zoning, the board of education of the MCS was able to maintain de facto segregation for several years after the original Brown decision (Green, 2007).
However, in 1960, lawyers associated with the NAACP Legal Defense Fund filed a complaint against the Memphis Board of Education. The plaintiffs in Northcross v. Board of Education sought an injunction to cease the operation of a biracial school system that they asserted was in violation of the 14th Amendment. Although the defendants acknowledged that the Memphis schools were separated by race, they denied that the biracial system was compulsory. Rather, they alleged that attendance at separate schools was entirely voluntary, flowing from the desire on the part of each race to associate and attend school with members of its own race (McRae, 1996, p. 37).
In 1961, the presiding U.S. District Court judge ruled in favor of the defendant school board, upholding the boards position that the existing system of voluntary transfer met the requirements for creating a desegregated or unitary system. However, in 1962, the Sixth Circuit Court of Appeals reversed the original decision, concluding that the Memphis Board of Education was, in fact, operating two systemsone for White students and another for Black students. As a result, the defendants were required to adopt a desegregation plan to create a unitary system. However, it took more than twelve years for the Board to put into place, involuntarily, a plan which was approved as a unitary plan in accordance with the United States Constitution as interpreted by the U.S. Supreme Court (McRae, 1996, p. 42). Moreover, the implementation of this desegregation plan began almost 20 years after the initial Supreme Court decision in Brown v. Board of Education.
In 1973, more than a decade after Northcross was filed, the judge in the case ordered busing for the purpose of the desegregation of MCS (McRae, 1996). Although the first Black students began attending historically White schools in MCS in 1961, little progress toward desegregation had been made during the 1960s. By 1971, fewer than 4% of Black students attended predominantly White schools (Herenton, 1971; McRae). The remaining Black students attended MCS that were still all-Black. It was this lack of progress toward desegregation that led to the eventual busing plan.
In anticipation of busing in MCS, Whites in Memphis established an organization called Citizens Against Busing (CAB) and began to set up several private schools. The CAB schools typically leased space from local churches. In 1972, there were 40 private schools in Memphis. That number increased to 90 in 1973 as court-ordered busing began. Private school enrollment climbed to 33,000 in 1973 and increased to 35,300 the following year (Biles, 1986). Students enrolled not only in the newly formed CAB schools but also in other existing private and parochial schools (Egerton, 1973).
Whereas some of the CAB schools were short lived (Pohlmann, 2008), many became permanent fixtures of education in Memphis. In many cases, the CAB schools transformed into established private schools operated by the schools former landlords. The White-flight academies became the property of several Protestant denominations in Memphis, including Baptist, Church of Christ, and Presbyterian groups (Biles, 1986). According to Biles, the private church-affiliated schools mushroomed across the landscape (p. 480).
The impact of White flight at the time of busing was substantial. In 1970, just a few years prior to the start of busing, the district was 55% black. Although there is some question as to the exact number of students who left the system in response to desegregation, the percentage of White students had dropped to approximately 33% by 1973 (Egerton, 1973; McRae, 1996; Terrell, 2004). One author who wrote at the time that busing began characterized the White flight from the MCS in the following manner: The school system has already lost many thousands of white students, and in all probability it will lose more. The school system is powerless to control that exodus (Egerton, p. 34). After a dramatic drop when busing began, the percentage of White students in the MCS continued to decrease at a steady pace over the subsequent decades (Terrell). By 1981, White students made up only 24% of the enrollment in the MCS. At the same time, the city had one of the largest private school enrollments in the nation (Biles, 1986). Moreover, an analysis of data from the 19891990 school year indicated that of the largest school districts in the nation, Memphis had the highest levels of private school segregation. White students in Memphis attended private schools at a rate almost 14 times that of Black students and made up 83% of private school enrollment while only accounting for 29% of the school-age population (Reardon & Yun, 2002).
Another significant dynamic that emerged during the desegregation era was the formation of optional schools within the MCS district. The first optional schools were created in 1976 as a strategy for desegregation (specifically, to keep White families in the district) and were part of the consent agreements between the plaintiffs and the board in the Northcross case (McRae, 1996; Pohlmann, 2008). Similar to magnet schools, the optional schools were intended to be high-caliber schools specializing in academic, artistic, or vocational subjects. The tuition-free programs are housed in freestanding schools or schools within schools. Optional students can come from any part of the district and must apply to the programs, with preference given to those who live within the actual school zone. Although flexible racial quotas have been established for the programs, Pohlmann noted that only a few of the programs have been regularly oversubscribed.
Despite the existence of these optional schools, the district continued to steadily lose White students in the decades following the start of busing. According to Kiel (2008), by the 1990s, it was clear that desegregating the Memphis City Schools was no longer an accomplishable task (p. 296).
Contemporary details. At the time of the PICS decision, MCS consisted of 180 schools. During the 20062007 school year, the district was 85% Black, 5.3% Hispanic, 8.4% White, and 1.3% Asian or Native American. As in the days immediately following desegregation, the demographics of the district do not mirror those of the city itself. According to the Memphis Chamber of Commerce, the citys population in 2007 was 34.1% White, 61.2% Black, 2.1% Asian, and 2.6% other races.
To understand the contemporary nature of (re)segregation in MCS, I examined recent changes (between 2000 and 2007) in both the overall demographics of the district (Figure 1) and the composition of individual schools. As a means to characterize the changes at the individual school level, I separated the schools into three categories: stable, moderately stable, and unstable. Stable schools experienced no more than 10%2 change in any racial demographic group in the years between 2000 and 2007; moderately stable schools experienced between 10% and 20% change in at least one racial group; and unstable schools demonstrated change of greater than 20% in at least one racial group.
Figure 1. Demographic Changes in Memphis City Schools From 2000 to 2007
The majority of schools in MCS were what I am referring to as stable in racial composition between 2000 and 2007. Of the schools examined, 114 out of 1503 showed less than 10% change in any racial category. However, the schools in this category were generally not both stable and racially diverse. In fact, 103 of the schools in this category had populations that were at least 95% students of color. In other words, the majority of the stable schools were already hypersegregated.
A second category of schools were moderately stable. These schools showed a 10% 20% change in at least one racial category between 2000 and 2007. Seventeen schools demonstrated change patterns that I am characterizing as moderately stable. Of the 17 schools in this category, 15 reflected a decrease in the proportion of White students and an increase in the relative number of African American or Hispanic students. In only two cases did moderately stable schools demonstrate an increase in the proportion of White students over the period from 2000 to 2007. In both cases, the schools were atypical in some respect (one was a university demonstration school and the other was an optional school).
The third category of schools consists of what I am referring to as unstable schools. These schools demonstrated at least a 20% change in one or more racial categories. There were 19 such schools in the district in the period from 2000 to 2007. In no cases did this change reflect a relative gain in White students. The patterns in this category reflected either an increase in African American and Hispanic students and a decrease in White students, or a decrease in both African American and White students, with an accompanying increase in the proportion of Hispanic students.
Given their history, the status of optional schools is also a point of interest in the contemporary data on MCS. The current success of optional schools as an integration strategy can probably be best described as mixed. On the one hand, 19 of the 37 optional schools had populations in 2007 with a greater proportion of White students than the district overall. On the other hand, 14 of the 37 optional schools had student populations that were at least 95% students of color. Thus, although optional schools may have demonstrated some success with respect to integration, more than one third of these schools are themselves hypersegregated. In addition, three schools enroll nearly 75% of all White students currently enrolled in the optional program (Pohlmann, 2008).4
Although this analysis provides, at best, only a rough measure of stability, I argue that these data are important to consider for at least two reasons. First, given the challenges of opportunity to learn and outcomes associated with segregated schools (discussed in greater detail later in this article), the substantial number of stable, yet hypersegregated, schools is significant. A second point of significance is the fact that the resegregation process in MCS is ongoing. The schools that were moderately stable or unstable, with only two exceptions, reflect the continuing segregation of Black and Hispanic students in MCS, as students of color continue to become more, rather than less, racially isolated. Even those schools that were intended to support integration currently reflect a substantial level of racial segregation.
SHELBY COUNTY SCHOOLS
Historical context. The Shelby County Schools district has historically comprised all parts of the county outside of the Memphis City limits. As such, the district is spread out across several different municipalities that ring the city. Before World War II, most Black students in the district attended one- or two-room schools that provided no education past the eighth grade. Prior to the 1940s, in fact, there was only one high school for Black students in the county system (partially funded by a private foundation), and the distance from other parts of the county made it necessary for some students to stay overnight in order to attend school. Although a second high school for Black students was built in the 1940s, the educational opportunities for African American students remained unequal to those of White students in the county (Robinson v. Shelby County Board of Education, 1986). In response to these conditions, 21 students filed a class action suit against the Shelby County Board of Education in June 1963, claiming that the district was operating as a dual system.
The ruling in the case of Robinson v. Shelby County Board of Education charged the district with the task of eradicating vestiges of the dual system. The first effort of the board of education toward this end involved a freedom of choice plan. Under this plan, African American students could voluntarily choose to attend all-White schools. However, the actual freedom of choice was limited by conditions of transfer that included criteria related to behavior, academic performance, family income, and psychological stability (Robinson v. Shelby County Board of Education, 2009). In 1967, 4 years after the Robinson suit, all White students in the district still attended the formerly all-White schools. Nearly 99% of all African American students attended all-Black schools (Robinson v. Shelby County Board of Education, 2009).
In 1967 and 1968, the court modified its decree, adding precise benchmarks for desegregating both students and faculty in SCS. The court ruled that student assignment should be made to achieve a racial composition in each school that was within 10 percentage points of the district composition. Similar guidelines were set with regard to the composition of faculty at each school (Robinson v. Shelby County Board of Education, 2009). The district remained under the supervision of the district court in the areas of school construction, student assignment, staffing, and transportation for over 40 years.
After some progress initially, the district largely failed to meet the benchmarks set by the court (Robinson v. Shelby County Board of Education, 2009). For example, in 1986, when the district sought a modification of the desegregation plan, the U.S. District Court noted the school districts failure to consider the impact on desegregation of adding classrooms at a majority-White school. According to the court, the Board has apparently accorded its concept of community pride a higher standing than its constitutional duty to eliminate all vestiges of segregation within the Shelby County school system (Robinson v. Shelby County Board of Education, 1986, p. 97). Because the district had not been declared unitary, the court ruled that the board was not absolved of its duty to desegregate. Mere demographic changes or community pressure did not change that duty (p. 97).
Evidence of the boards failure to achieve the goals of desegregation that had been laid out by the court can be seen in the racial make-up of the schools. For example, in 1984, 3 schools out of 34 had populations that were less than 5% African American. Three other schools had populations that were between 50% and 75% African American. By 2004, fewer than 40% of the districts schools (17 out of 46) had student populations that were within 10 percentage points of the district composition, which was at that time 32% African American (Robinson v. Shelby County Board of Education, 2009).
Also significant to the history of SCS is the interrelationship between the county and the city systems. In particular, the desegregation of MCS also had an impact on SCS. As MCS began busing, more Whites moved outside the city limits. This movement was facilitated by the Supreme Court ruling in Milliken v. Bradley, which prohibited interdistrict busing for the purpose of desegregation. As a result, Whites who moved beyond the city limits could send their children to predominantly White schools in SCS without fear that their children would be bused back to Memphis. Estimates of the growth of SCS in response to busing in MCS are complicated by city annexations that took place at the same time. However, Noblit and Collins (1978) reported that the gain in White enrollment in SCS due to desegregation in the city most likely exceeded 6,000 students. Given that the total White enrollment in SCS for the year prior to desegregation was 15,181, this growth was substantial (Noblit & Collins).
Unlike the steady increase in MCS, the proportion of African American students in SCS has fluctuated. In 1969, African American students made up 28% of the SCS population. In 1971, the proportion had increased slightly to 30%. In 1984, the proportion dropped to 15%, largely as a result of annexation of portions of the county by the City of Memphis. By 2001, the proportion of African American students had climbed back to 22%. And, by 2007, 32% of students in the county schools were African American (Robinson v. Shelby County Board of Education, 2009).
Contemporary details. The picture with respect to racial change in SCS differs in several respects from that of MCS. For example, overall changes in SCS between 2000 and 2007 were substantial (Figure 2). These districtwide changes are also reflected in shifts within individual schools. In contrast to the large number of MCS schools that demonstrated stability over the period from 2000 to 2007, only 14 of the 395 SCS schools examined fell into the stable category, with less than 10% change in any one racial category. In all but two of these stable schools, the White population in 2000 was higher than the overall proportion of the district (which was 76% in 2000). Thus, in contrast with MCS, most of the stable schools in SCS were more White than the district as a whole.
Figure 2. Demographic Changes in Shelby County Schools From 2000 to 2007
Ten of the schools in SCS fell into the category that I have called moderately stable. These schools showed change of between 10% and 20% in at least one racial category. In 8 out of the 10 schools, this change reflected a decrease in the proportion of White students and an increase in one or more of the other categories (African American, Hispanic, and Asian/Native American).
More than one third of the SCS schools were unstable over the period from 2000 to 2007. A total of 15 of the 39 schools showed change of greater than 20% in at least one racial category. In all 15 cases, this change reflected a decrease in the percentage of White students and an increase in the percentage of African American and Hispanic students. These changes have caused a significant shift in the level of segregation of some schools. In 2000, no schools in SCS were less than 10% White. In fact, only two schools were less than 40% White. By 2007, however, five schools were less than 10% White. And this figure does not count a high school opened in the 20072008 school year, which was less than 2% White.
The data on the changes in SCS are significant for what they indicate about the potential for resegregation. First, it seems clear that the district is in a period of rather significant racial shifts. A total of 25 of the 39 schools showed at least double-digit change in one or more racial categories between 2000 and 2007. In all but two cases, this change reflected a decrease in the proportion of White students and an increase in the percentage of students of color. In and of itself, this pattern of change does not necessarily indicate the increased segregation of students of color. However, the fact that an increasing number of schools are intensely segregated (serving populations that are at least 90% students of color) does, in fact, point to the segregative impact of these changes in the cases of some schools.
THE VIEW THROUGH A CRT LENS
The historical record of both districts reflects a legacy of intentional discrimination and both de jure and de facto school segregation. In addition, the contemporary conditions indicate continuing racial isolation. In this section, I raise the question of what we see when we look at these contemporary conditions. Do we view them as the result of neutral processes, or simply the vestiges of history? Or do we see these conditions as an issue of concern, as evidence of ongoing inequity in schooling? My goal in this section is to apply a CRT lens to the cases of these two districts and to outline what this lens reveals.
RACIAL REALISM AND THE RESEGREGATION OF THE TWO SCHOOL DISTRICTS
One feature of the CRT lens is the reduction of attention to issues of intent. The CRT lens instead focuses on the impact of the contemporary conditions on students of color. In particular, racial realism demands attention to the material consequences of segregated schooling. Both districts have schools that are racially identifiable. What are the consequences of this racial segregation, particularly for students of color? Research involving school resegregation points to several differential outcomes of segregated schools. For example, Mickelson (2005) found that the more time students spent in segregated Black schools, the lower their middle and high school achievement. This relationship held true even after controlling for other individual and family factors associated with achievement. In addition, a related outcome of segregated schools is lower graduation rates. According to Orfield and Lee (2007), almost half (46%) of the nations Black students attend low promoting power schools [schools with at least 60% fewer seniors than freshmen] compared to only 11 percent of white students (p. 39). Schools in which White students make up less than half of the population are five times more likely to have weak promoting power than predominantly White schools. Thus, the return to segregated schools has significant implications with regard to achievement and graduation. Similar results hold true in the area of curriculum as well. Past research has documented fewer course-taking opportunities for students in schools that predominantly comprise of students of color (Cogan, Schmidt, & Wiley, 2001; Oakes, Muir, & Joseph, 2000). These differences in achievement, graduation, and course-taking have material consequences for students.
Another material factor that emerges as important in a consideration of resegregation is teacher quality. Past research on teacher quality has demonstrated differences in teacher qualifications related to the demographic composition of schools and districts. For example, schools and/or districts with higher proportions of students of color typically have fewer teachers with certification in the subject taught (Darling-Hammond, 1997; Lee, 2004). Another finding of importance with respect to teacher quality is the relationship between race and teacher turnover. In a study of Georgia public schools, for example, Freeman, Scafidi, and Sjoquist (2005) found that teacher turnover (specifically White teacher turnover) was much greater in schools with higher percentages of Black students. Given the relationship between teacher experience and achievement (Fetler, 1999), the higher levels of teacher turnover point to different opportunities to learn in segregated Black schools.
This represents only a small sampling of the research documenting the significance of school segregation with respect to opportunity to learn. These differences reflect the material consequences of segregation for students of color. Insofar as these results are manifest in racially isolated schools, these findings suggest that segregation, whatever its cause, is not benign. According to Mickelson (2005), segregated schooling will notcannotoffer equality of educational opportunities to our children (p. 105). Legal scholar Charles Lawrence (2005) asserted that this failure does not occur because integration is necessary for learning; rather, the segregation of schools removes material resources from the schools of students of color.
Segregated schools build a wall between poor black and brown children and those . . . with privilege, influence, and power. The wall denies them access to the resources we command: social, political, and economic. Although the wall is not a physical structure or a prohibition mandated by law, it nonetheless permits and encourages us to hoard our wealth on one side while children on the other side are left with little. The genius of segregation as a tool of oppression is in the signal it sends to the oppressorsthat their monopoly on resource is legitimate, that there is no need for sharing, no moral requirement of empathy and care. (Lawrence, 2005, p. 1377)
As Lawrence suggested, it is not necessarily the case that segregation represents intentional discrimination on the part of White or upper-income parents who remove their children from certain schools or school districts. However, intentional or not, there is a failure of empathy and care over the fate of those students who suffer the most from segregated schools.
Through this lens, then, the resegregation of both the Memphis City Schools and the Shelby County Schools is not neutral. Whether the segregation is primarily between sectors (private versus public), as is the case in MCS, or between schools (with racially identifiable schools within the same district), as is the case in SCS, the picture changes when the results of this segregation are taken into account. From a racial realist perspective, the material consequences for students of color cannot be ignored simply because they may not be the results of intentional discrimination.
THE CONTEXT OF RESEGREGATION
In addition to the material consequences of segregation, a CRT lens draws attention to the context. Recent changes in the schools are not taking place in a vacuum. For example, although the MCS are viewed as impossible to desegregate as a result of the high percentage of students of color in the district, a CRT lens draws attention to the historical factors that shaped this contemporary condition. A precipitous drop in White student enrollment took place with the institution of busing. The percentage of White students in the district has continued to decrease since that time, with over a 10% drop from 1994 to 2007. At the same time, private school enrollment in Memphis has remained strong. There are currently more than 100 private schools serving nearly 30,000 students in the Memphis area, and the vast majority of students in these schools (95%97%) are White (Pohlmann, 2008). According to Reardon and Yun (2003), the presence of black students in the public schools remains a powerful factor in shaping white families public/private schooling decisions. Moreover, there is no evidence that the relationship between black population share and white enrollment levels has declined since 1980 (p. 1584). The issue of private school enrollment is relevant with respect to the segregation of both Memphis City and Shelby County, given that private and parochial schools draw students who live in both districts.
Although the role of private schools is highlighted through a CRT lens, the role of housing segregation is also a prominent feature of the context of school segregation. In fact, the history of the Northcross case highlights the important role of housing segregation with respect to education. It was housing segregation that allowed the board of education to continue in the post-Brown era to maintain a dual system. For example, a few years prior to the start of busing, Herenton (1971) compared school zone maps with maps reflecting housing segregation in Memphis and concluded, The school district lines in the City of Memphis conform to the generally recognized boundaries between white and Negro residential areas. The result is predominately Negro schools in one district and predominately white schools in an adjacent district (p. 47). In an earlier age, a strong commitment to neighborhood schools, in combination with patterns of residential segregation, created schools that were racially identifiable, even in the absence of de jure segregation.
However, there is also evidence that this combination of residential segregation and commitment to neighborhood schools continues to influence school segregation in the Memphis area. According to one study, only in Detroit do Black residents experience more racial isolation than in Memphis (Bronsnan, Covington, & Downing, 2001). The average majority-Black census tract in Memphis is 73% Black, compared with the national average of 54%. In fact, in response to the PICS decision, the superintendent of SCS acknowledged the role of residential segregation in the formation of schools that are racially identifiable: If an area is predominantly African American, the school is going to be predominantly African American (Melvin, 2007a, p. B1).
Thus, residential segregation and private schooling are prominent parts of the historical and contemporary context in the cases of these two districts. These conditions, which are certainly not unique to these districts, are significant for two reasons. First, insofar as these two factors continue to operate to support school segregation in Memphis more than 50 years after the end of de jure separation of the races, they demonstrate the pattern of cyclical progress and cyclical regression described by Bell (1992). In addition, these two factors paint a picture of choice. The surface picture is one of segregated schools that are the result of the free market and individual choice beyond the purview of schools to change. Orfield (2005) described this process in the following way: Districts point to white flight . . . and contend that housing segregation has expanded but argue that these demographic trends are not the schools problem and that the schools should not be required to redress these issues, which are merely the product of private decisions (p. 9).
THE CRITIQUE OF LIBERALISM: PRIVATE CHOICES AND COLORBLINDNESS
The CRT lens, however, challenges this neutral perspective on White flight and calls into question the color-blind composition of this picture, particularly the minimization of racism (Bonilla-Silva, 2006). Like the formal-race colorblindness described by Gotanda (1991), the housing choice explanation of school segregation does not take into account social conditions or historical realities. According to Massey and Denton (1993), it is not, in fact, the impartial operation of the free market but the inequitable mechanism of racism that shapes the economic fortunes of African Americans, particularly with respect to residential segregation. For example, Bell (2004) noted that local governments have been active accomplices [in segregation] through mortgaging practices, the location of public housing and urban renewal projects, and zoning regulations (p. 111).
Moreover, housing discrimination impacts the economic system as a whole. Not only does discrimination lead to segregation, but segregation, by restricting economic opportunities for blacks, produces interracial economic disparities that incite further discrimination and more segregation (Massey & Denton, 1993, p. 109). In addition, school segregation is not simply a result of housing segregation. It can also be a contributing factor because housing and school segregation are part of a feedback loop. Segregated schools shape housing patterns, which in turn contribute to ongoing school segregation (Frankenburg, 2005; Orfield & Lee, 2007). In fact, Judge Robert McRae, who presided over the Northcross case, asserted that the Memphis Board of Education relied on this discrimination cycle in the post-Brown era as a mechanism to maintain a dual system. Schools intended for Black students were placed in the center of residentially segregated neighborhoods maintained through housing discrimination. According to McRae (1996),
the housing discrimination was buttressed by economic discrimination because blacks were unacceptable for most of the higher-paying jobs. . . . The lack of equal educational opportunities in a unitary school system also deprived black students of an education that was needed in order to get the better-paying jobs so they could afford the higher-priced housing area. (p. 64)
Far from being the result of the neutral operation of the free market, housing segregation is the outcome of current and historical discrimination (Massey & Denton, 1993; Shapiro, 2004).
Yet, the view of school segregation as the result of individual housing choices paints segregation as a color-blind process. According to powell (2005), however, focusing on choice misconstrues racial separation as symmetrical, as if whites and blacks choose to be exclusive in the same fashion (p. 283). Despite a wealth of studies demonstrating ongoing housing discrimination, residential and school segregation have been constructed as simply matters of individual choice (Frankenberg & Le, 2009). A CRT lens challenges the color-blind picture of residential and school segregation, noting the role of institutional entities, such as local governments and the courts, in the furtherance of segregation.
CRT also challenges the neutral view of the role of choice. According to Frankenburg and Le (2009), the contemporary focus on choice is related to a changing understanding in the United States of the meaning of public schooling. Rather than viewing schooling as a public good, education has been reconceptualized as a private good, as a means to provide social mobility for ones own children (Frankenburg & Le). Frankenburg and Le asserted that this change in the view of public education is manifested in various ways, including the buying of particular public schools through residential choices and the sense of entitlement to educational choice. In addition, other scholars have highlighted this shifting conceptualization of education from a public to a private good and the negative impact that this shift has on goals of equity of educational opportunity (Lipman, 2006; Ridenour, Lasley, & Bainbridge, 2001). For example, Lipman noted that this view of education as a private good leads to a perspective that favors individual responsibility over equity and negates public responsibility to redress historical inequalities (p. 101). In much the same way that the color-blind perspective allows the ongoing segregation of public schools to be viewed as a result of the neutral operation of the free market, the collective conception of public education as a private good permits school segregation and continuing inequity under the guise of private choice.
A REVISIONIST HISTORY: THE DANGER OF ALLOWING THE FOCUS TO SHIFT
In addition to shedding a different light on the majoritarian story of colorblindness and choice, a CRT lens also highlights the possible flaws in past efforts to attain equality in education. Just as Bells (2004) revisionist account of the Brown decision called into question the strategy of integration, a revisionist account of desegregation of the MCS points to places where the process failed. In particular, Kiel (2008) argued that the focus of desegregation efforts shifted in Memphis from desired outcomes to methods of implementation. The reaction to those methods (i.e., busing) ensured that neither desegregation nor the intended outcomes were accomplished. According to Kiel, desegregation advocates were forced to push for remedies, such as busing. . . . The shift in the debate, from one about desegregation to one about busing proved to be the death knell for effective integration in the Memphis City Schools (p. 302). It also ensured that the larger goals of quality education for all students were more difficult to attain. As Kiel noted, the response to busing and the divestment of White students from the district led to a loss of public support (and therefore funding) for education. Allowing the focus to shift from improving the educational outcomes for African American students to the method of desegregation set off a series of events that has ensured that it is impossible to desegregate the MCS and exceedingly difficult to garner the public support and funds necessary to improve the outcomes for students in the district. Thus, a revisionist view of the case of MCS in the wake of the Brown decision and the Northcross case highlights the pitfalls and material consequences of this shift in focus. This account is not unique to Memphis but mirrors larger revisionist accounts of school desegregation historyaccounts that document the danger of focusing more on the process than the goal of improved educational opportunities (Bell, 2004). Although not unique, this revisionist history provides important insights into the current status of schools in MCS.
In contrast to MCS, I would argue that the story with respect to school desegregation (or resegregation) in SCS is yet incomplete. The PICS decision and other recent legal rulings have ensured that busing will not play the same role in SCS as it did in its urban counterpart. However, the significant changes reflected in the data from 2000 to 2007 indicate ongoing demographic shifts and increasing segregation in some schools. Although it might be premature to attempt a complete revisionist account of SCS, the history of MCS provides a possible foreshadowing of the next chapters.
THE SIGNIFICANCE OF THE TWO CASES IN LIGHT OF PICS
In the previous section, I described how the conditions of the two districts might appear when viewed through a CRT lens. In this section, I expand my focus to include the PICS decision. In particular, my goal in this section is to suggest how, despite initial appearances to the contrary, the cases of these two districts are related to the ruling in PICS. As noted at the start of this article, my goal is not to examine the implications of PICS in a strictly practical sense. At the time of the PICS decision, there was no immediate impact on the operation of these two districts. Rather, my purpose in this section is to explore how the conditions in the two districts are related to PICS through the structures that justify the ongoing resegregation of schools. My argument is that both PICS and the conditions of the districts reflect similar contemporary conceptions of schooling and equity. Such attention to the broader definition of issues furthers the application of CRT, because CRT scholars often consider how mainstream conceptions can serve to obscure inequities (Gillborn, 2008). According to Tate (1997), critical race theorists recognize that the way public problems are defined can influence how laws and policies are constructed and interpreted (p. 218). It is through the framing of the problem of school segregation that we find the relationship between PICS and the two districts described in this article.
One connection between PICS and the two school districts is the view of contemporary segregation as an essentially neutral process and intentional segregation as a non-issue. Further, because school segregation is a viewed as a neutral process, it can only be addressed through color-blind means. This commitment to colorblindness is manifest in the image promoted in the PICS decision of a color-blind Constitution (Smrekar, 2008; Wells, Duran, & White, 2008). According to Wells et al., the PICS decision
was striking in its shift toward a colorblind interpretation of the Constitution, rendering any race-conscious policy problematic. Taking the conservative legal argument about race . . . four of the justices implied that race-conscious policies are permissible only as a short-term remedy to dismantle de jure or Jim Crow segregation and not as a remedy for the legacies that entrenched segregation or other forms of discrimination. (p. 5)
In other words, the court appears to have applied the formal-race definition described by Gotanda (1991), viewing race as unconnected to social mechanisms or historical conditions. In fact, consistent with the concept of reactionary colorblindness offered by Haney-Lopez (2007), consideration of race to ensure diversity was likened to discrimination. Chief Justice Roberts asserted, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
I would argue that, when viewed through this frame, the color-blind formal-race image of PICS is closely related to the two districts. The courts reinscription of colorblindness as the ideal supports and gives legitimacy to a laissez-faire nonresponse to the resegregation of local schools. Insofar as the ongoing resegregation is not the result of intentional discrimination, the argument goes, it is not subject to intervention. Although the courts decision does not change what the districts are doing or will do, the direction provided by the ruling supports nonaction in response to resegregation. Whereas the CRT lens brings the resegregation of schools into high relief and highlights the crisis of segregated schools, the same conditions fade to the background when viewed through the color-blind frame of PICS.
Another issue definition that appears salient for both PICS and the conditions of the two districts is the collective conception of schooling as a private good. An extension of this view of schooling is the justification of segregation as the result of private choices. In fact, as Frankenburg and Le (2009) noted, the cases decided by the Supreme Court in PICS emerged from the expectation of unfettered educational choice: A motivating factor for the plaintiffs who sued metropolitan Louisville and Seattle was the denial of their educational choice for their children due to the districts voluntary integration policy that managed school preference choices made by parents to ensure that schools stayed within certain racial/ethnic composition ranges (p. 1042). As such, the PICS decision itself was a response to the definition of schooling as a private, individual choice.
A consequence of this definition of schooling as a private choice is a concomitant lack of concern over ongoing segregation. As Lawrence (2006) noted, the injuries of stigma and exclusion from community identified in Brown v. Board of Education continue, as does our responsibility for those injuries, even as we reframe the causes of and remedies for educational inequality in terms of racially neutral private choice (p. 700). He argued that the increasingly privatized view of education allows us to turn our attention away from the fundamental harm done by segregation and from our responsibility for the redress of those inequities. Such lack of attention to the injury of segregation can be seen in the PICS decision. Despite the substantial evidence presented in amicus briefs regarding the negative effects of racial segregation in schools, the focus of the court was on the means that can be used to overcome segregation in cases in which issues of private choice were central.
In light of the increasing resegregation of schools across the country (Orfield & Lee, 2007; Reardon & Yun, 2003; Saporito & Sohoni, 2006), including the two districts considered in this article, the shift in our collective gaze away from the inequities of segregated schools (e.g., Freeman et al., 2005; Mickelson, 2005; Oakes et al., 2000; Orfield & Lee, 2007) is significant. For, despite the increasing resegregation of our nations schools, relatively little attention is paid to this issue in the public policy domain (Lawrence, 2005; Orfield & Lee). According to Lawrence (2005), fifty years after Brown. . . , the word segregation is rarely spoken in public policy discussions (p. 1358). Similarly, Orfield and Lee noted that the relationship between segregation and educational outcomes is rarely mentioned by policy makers. The collective definitions of the issue of segregation have shaped the lens that we hold up to the problem, ensuring that it fades from view. This shift has been supported both by colorblindness and private choice. These collective definitions of the issue of segregation are reflected in the PICS decision and, I would argue, are part of the mechanism supporting the conditions of the two districts described in this article.
EPILOGUE: SHELBY COUNTY AND THE DISMISSAL OF ROBINSON
In fact, the manifestations of these collective definitions of the issue of school segregation are illustrated in recent events surrounding the desegregation of Shelby County Schools. As outlined at the start of this article, the PICS decision had no immediate impact on SCS because the district was still under a desegregation order in the case of Robinson v. Shelby County Board of Education. Until that order was lifted, the PICS ruling was irrelevant. In May 2009, however, the SCS district was declared unitary by the U.S. Sixth Circuit Court of Appeals. The case had gone to the Court of Appeals after a 2007 ruling by a U.S. District Court judge to keep the order in place. In lifting the order, the language of the appeals court reflected both a justification of segregation as related to private decisions and an unambiguous appeal to colorblindness as reasons for lifting the desegregation order under which the district had been operating for over 40 years. For example, the courts decision asserted,
The record reveals that the racial unenvenness that currently exists in individual schools is not the product of the defendants forty-five-year-old constitutional violation. Rather, with the passage of time and court intervention, other dynamics have now shaped the district into its current form. The annexations by the City of Memphis, along with voluntary housing choices made by the public, have drastically altered the racial composition of the school district. (Robinson v. Shelby County Board of Education, 2009, p. 10)
In addition, the appeals court made reference to the PICS case in outlining its disagreement with the lower courts position on faculty hiring in the district. We find ourselves in agreement with Chief Justice Roberts that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race (p. 12). Although the court acknowledged the racial unevenness of individual schools, they appeared to view the district as no longer culpable in that unevenness and therefore not subject to judicial intervention.
It is undisputed that political and social decisions beyond defendant Boards control have affected and continue to impact the racial ratio of the Shelby County students. These influences are not causally related to defendants violation of the Constitution and fall outside the scope of the courts equitable powers to restore the victims of discrimination to the positions they would have occupied absent the violation. (Robinson v. Shelby County Board of Education, 2009, p. 9)
Thus, the picture painted by the court was of a district that bore no responsibility for school segregation that was based on private choice. As a result, color-conscious efforts such as those mandated under the earlier desegregation order were no longer necessary or appropriate.
In contrast to this picture of the district, I have sought to offer another way of viewing the same conditions. In particular, I have suggested how the cases of both Shelby County and Memphis City might be viewed through the lens of CRT, bringing into focus the salience of the material outcomes of segregation and the historical and contemporary conditions supporting the resegregation of schools in both districts. In place of an ahistorical picture of neutral choices, the view through the lens of CRT eliminates the color-blind overlay to permit a focus on the material consequences of segregation and the connections to past discrimination in education and housing. It also highlights the connections between the cases of these two districts and the decision in PICS, specifically illuminating the tint of colorblindness and private choice that allows school segregation to continue. The CRT lens highlights the full measure of our regression to Plessy-era conditions in schooling while eliminating attention to issues of intent. This attention to segregation absent intent is crucial. For, as Lawrence (2005) asserted, the tendency to ignore segregation, to look the other way, ensures that persons with no measure of ill intent are nevertheless responsible for the perpetuation of school segregation and inequity.
In the book Faces at the Bottom of the Well (Bell, 1992), an ethereal character helps author Derrick Bells alter ego to understand that his task is to make people see. He must make people see the ways that the system operates to perpetuate inequity. As Bell suggested, that is the fundamental task of CRTto make people see (Taylor, 2007). As such, the question remains, When we look at districts such as Shelby County and Memphis City and at significant Supreme Court decisions such as PICS, what do we see?
1. Hispanic is the designator used by the state of Tennessee in the reporting of district demographic data.
2. In the case of Robinson v. Shelby County Board of Education (discussed in greater detail later in this article), one of the benchmarks used to determine whether the district was in compliance with the desegregation order was a standard of no more than 10% difference between the proportion of a racial group in the district as a whole and the corresponding proportion in an individual school. For the purpose of this article, use of the 10% benchmark for the measure of change was intended to mirror the metric used in Robinson. Although the measures used in Robinson were not ones of change, but of differences against districtwide averages, the use of the 10% cutoff to categorize change is intended to give some sense of the instability of district schools in reference to the Robinson standard. If a school was within the 10% threshold of district averages established in Robinson, a change of 10% could (but would not be guaranteed to) move the school outside a level of compliance (thus, the descriptor moderately stable). On the other hand, a 20% change would be virtually guaranteed to move a school outside the Robinson threshold. It is for this reason that the levels of 10% and 20% were selected to categorize school-level changes in the cases of the two districts examined in this article.
3. Because data were sometimes not available for both 2000 and 2007, this number is less than the total number of 2007 schools. There are several reasons why data might not be available for both years: incomplete data provided to the state, school closings between 2000 and 2007, school openings (including charter schools) between 2000 and 2007, and the transfer of schools between the Shelby County School system and the Memphis City School system as a result of annexation.
4. Notably, there are no surface differences in curriculum that might account for the differences in enrollment among the optional schools. Both the hypersegregated schools and the schools with higher than average White enrollment include schools designated as Enriched Academics/College Preparatory as well as programs representing a mix of other focal areas (arts/academics, technology/careers/military science, environmental science, and so on). However, these program descriptors provide no detailed information regarding the nature of the curriculum. Thus, there may be underlying curricular differences that contribute to the differing enrollment patterns. Understanding potential differences between these schools, in terms of curricula and resources, could shed light on the racial differences in enrollment. However, such an examination is beyond the scope of this article.
5. As with MCS, the number of schools for which data were available for both 2000 and 2007 was less than the total number of 2007 schools.
Bell, D. (1980). Brown v. Board of Education and the interest-convergence principle. Harvard Law Review, 93, 518533.
Bell, D. (1992). Faces at the bottom of the well: The permanence of racism. New York: Basic Books.
Bell, D. (2004). Silent covenants: Brown v. Board of Education and the unfulfilled hopes for racial reform. New York: Oxford University Press.
Biles, R. (1986). A bittersweet victory: Public school desegregation in Memphis. Journal of Negro Education, 55 (4), 470-483.
Bonilla-Silva, E. (2006). Racism without racists: Colorblind racism and the persistence of racial inequality in the United States (2nd ed.). Lanham, MD: Rowman and Littlefield.
Bronsnan, J., Covington, J., & Downing, S. (2001, April 5). Races staying isolated in Memphis, study says. The Commercial Appeal, p. A1.
City schools integration timeline. (2004, May 16). The Commercial Appeal, p. A18.
Cogan, L., Schmidt, W., & Wiley, D. (2001). Who takes what math and in which track? Using TIMMS to characterize U.S. students eighth-grade mathematics learning opportunities. Educational Evaluation and Policy Analysis, 23, 323341.
Crenshaw, K. (1989). Foreword: Toward a race-conscious pedagogy in legal education. National Black Law Journal, 11, 114.
Crenshaw, K., Gotanda, N., Peller, G., & Thomas, K. (Eds.). (1995). Critical race theory: The key writings that formed the movement. New York: New Press.
Darling-Hammond, L. (1997). The right to learn: A blueprint for creating schools that work. San Francisco: Jossey-Bass.
Decuir-Gunby, J. (2006). Proving your skin is white, you can have everything: Race, racial identity, and property rights in Whiteness in the Supreme Court Case of Josephine DeCuir. In A. Dixson & C. Rousseau (Eds.), Critical race theory in education: All Gods children got a song (pp. 89112). New York: Routledge.
Delgado, R. (2001). Two ways to think about race: Reflections on the id, the ego, and other reformist theories of equal protection. Georgetown Law Review, 89, 2279, 22832285.
Delgado, R. (2003). Crossroads and blind alleys: A critical examination of recent writings about race. Texas Law Review, 82, 121152.
Delgado, R., & Stefancic, J. (2001). Critical race theory: An introduction. New York: New York University Press.
Donnor, J. (2006). Parent(s): The biggest influence in the education of African American football student-athletes. In A. Dixson & C. Rousseau (Eds.), Critical race theory in education: All Gods children got a song (pp. 153166). New York: Routledge.
Dudziak, M. (2000). Cold war civil rights: Race and the image of American democracy. Princeton, NJ: Princeton University Press.
Egerton, J. (1973). Promise of progress: Memphis school desegregation 197273. Atlanta: GA. Southern Regional Council.
Fetler, M. (1999). High school staff characteristics and mathematics test results. Education Policy Analysis Archives, 79(9), 122.
Frankenberg, E. (2005). The impact of school segregation on residential housing patterns. In J. Boger & G. Orfield (Eds.), School resegregation: Must the South turn back? (pp. 164184). Chapel Hill: University of North Carolina Press.
Frankenberg, E., & Le, C. (2009). The post-Parents Involved challenge: Confronting extralegal obstacles to integration. Ohio State Law Journal, 69, 10151072.
Freeman, C., Scafidi, B,. & Sjoquist, D. (2005). Racial segregation in Georgia public schools, 19942001: Trends, causes, and impact on teacher quality. In J. Boger & G. Orfield (Eds.), School resegregation: Must the South turn back? (pp. 143163). Chapel Hill: University of North Carolina Press.
Gillborn, D. (2008). Racism and education: Coincidence or conspiracy? New York: Routledge.
Gotanda, N. (1991). A critique of Our constitution is color-blind. Stanford Law Review, 44, 168.
Green, L. (2007). Battling the plantation mentality: Memphis and the Black freedom struggle. Chapel Hill: University of North Carolina Press.
Haney-Lopez, I. (2007). A nation of minorities: Race, ethnicity, and reactionary colorblindness. Stanford Law Review, 59, 9851063.
Herenton, W. (1971). A historical study of school desegregation in the Memphis City Schools. Unpublished doctoral dissertation, Southern Illinois University, Carbondale.
Kiel, D. (2008). Exploded dream: Desegregation in the Memphis City Schools. Law and Inequality, 26, 261303.
Ladson-Billings, G. (1999). Preparing teachers for diverse student populations: A critical race theory perspective. In A. Iran-Nejad & P. Pearson (Eds.), Review of research in education (Vol. 24, pp. 221247). Washington, DC: American Educational Research Association.
Ladson-Billings, G., & Tate, W. (1995). Towards a critical race theory of education. Teachers College Record, 97, 4768.
Lawrence, C. (2001). Two views of the river: A critique of the liberal defense of affirmative action. Columbia Law Review, 101, 928976.
Lawrence, C. (2005). Forbidden conversations: On race, privacy, and community. Yale Law Journal, 114, 13531403.
Lawrence, C. (2006). Who is the child left behind? The racial meaning of the new school reform. Suffolk University Law Review, 39, 699718.
Lee, J. (2004). Multiple facets of inequity in racial and ethnic achievement gaps. Peabody Journal of Education, 79(2), 5173.
Lipman, P. (2006). This is America 2005: The political economy of education reform in the public interest. In G. Ladson-Billings & W. Tate (Eds.), Education research in the public interest: Social justice, action, and policy (pp. 98116). New York: Teachers College Press.
Massey, D., & Denton, N. (1993). American apartheid: Segregation and the making of the underclass. Cambridge, MA: Harvard University Press.
Matsuda, M. (1995). Looking to the bottom: Critical legal studies and reparations. In K. Crenshaw, N. Gotanda, G. Peller, & K. Thomas (Eds.), Critical race theory: The key writings that formed the movement (pp. 6379). New York: New Press.
Matsuda, M., Lawrence, C., Delgado, R., & Crenshaw, K. (Eds.). (1993). Words that wound: Critical race theory, assaultive speech, and the first amendment. Boulder, CO: Westview Press.
McRae, R. (1996). Oral history of deliberate unconstitutional separation of Negro race by Board of Education Memphis City Schools. Unpublished manuscript, University of Memphis, Memphis, TN.
Melvin, L. (2007a, July 15). Diversity no issue in county classes. The Commercial Appeal, p. B1.
Melvin, L. (2007b, July 4). Hearing set on desegregation. The Commercial Appeal, p. B1.
Mickelson, R. (2005). The incomplete desegregation of the Charlotte-Mecklenburg schools and its consequences, 19712004. In J. Boger & G. Orfield (Eds.), School resegregation: Must the South turn back? (pp. 87110). Chapel Hill: University of North Carolina Press.
Noblit, G., & Collins, T. (1978). School flight and school policy: Desegregation and resegregation in the Memphis City Schools. Urban Review, 10, 203212.
Oakes, J., Muir, K., & Joseph, R. (2000). Coursetaking and achievement in mathematics and science: Inequalities that endure and change. Madison, WI: National Institute of Science Education.
Orfield, G. (2005). The Southern dilemma: Losing Brown, fearing Plessy. In J. Boger & G. Orfield (Eds.), School resegregation: Must the South turn back? (pp. 124). Chapel Hill: University of North Carolina Press.
Orfield, G., & Lee, C. (2007). Historic reversals, accelerating resegregation, and the need for new integration strategies. Los Angeles: Civil Rights Project.
Pohlmann, M. (2008). Opportunity lost: Race and poverty in Memphis City Schools. Knoxville, TN: University of Tennessee Press.
powell, j. (2005). A new theory of integrated education: True integration. In J. Boger & G. Orfield (Eds.), School resegregation: Must the South turn back? (pp. 281304). Chapel Hill: University of North Carolina Press.
Reardon, S., & Yun, J. (2002). Private school racial enrollments and segregation. Cambridge, MA: Civil Rights Project.
Reardon, S., & Yun, J. (2003). Do Southern schools face rapid resegregation? Integrating neighborhoods, segregating schools: The retreat from school desegregation in the South, 19902000. North Carolina Law Review, 81, 15631596.
Ridenour, C., Lasley, T., & Bainbridge, W. (2001). The impact of emerging market-based public policy on urban schools and a democratic society. Education and Urban Society, 34(1), 6683.
Robinson v. Shelby County Board of Education, 311 F. Supp. 97 (1986).
Robinson v. Shelby County Board of Education, 566 F. 3d 642 (2009).
Rousseau, C., & Tate, W. (2003). No time like the present: Reflecting on equity in school mathematics. Theory Into Practice, 42, 211216.
Saporito, S., & Sohoni, D. (2006). Coloring outside the lines: Racial segregation in public schools and their attendance boundaries. Sociology of Education, 79, 81105.
Shapiro, T. (2004). The hidden cost of being African American: How wealth perpetuates inequality. New York: Oxford University Press.
Smrekar, C. (2007, July 16). A practical end to racial diversity in schools. Teachers College Record. Retrieved January 2, 2009, from http://www.tcrecord.org (ID No. 14549)
Solorzano, D. (2001). Critical race theory, racial microaggressions, and campus racial climate: The experiences of African American college students. Journal of Negro Education, 69, 6073.
Solorzano, D., & Yosso, T. (2002). Critical race methodology: Counter-storytelling as an analytical framework for education research. Qualitative Inquiry, 8, 2344.
Tate, W. (1997). Critical race theory and education: History, theory, and implications. In M. Apple (Ed.), Review of research in education (Vol. 22, pp. 195247). Washington, DC: American Educational Research Association.
Taylor, G. (2007). Derrick Bells narratives as parables. New York University Review of Law and Social Change, 31, 225269.
Terrell, J. (2004, May 16). White flight from Memphis City Schools. The Commercial Appeal, p. A19.
Wells, A., Duran, J., & White, T. (2008). Refusing to leave desegregation behind: From graduates of racially diverse schools to the Supreme Court. Teachers College Record, 110 , 25322570.