Charles J. Ogletree, Jr. & Susan Eaton*
On December 4th of last year, the nine Justices of the Supreme Court heard oral arguments in a pair of vitally important and largely overlooked cases. The Court’s upcoming decisions inParents Involved in Community Schools v. Seattle School District, No. 11 and Meredith v. Jefferson County (Louisville) Board of Education,2 will provide public measure of the nation’s commitment to the ideals expressed in Brown v. Board of Education,3 widely considered one of the proudest moments in American jurisprudence.
In Brown, a unanimous Court observed: “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of citizenship.”4 It is reasonable to fear that an adverse ruling in the Louisville and Seattle cases will undermine these important goals of our educational institutions.
These new cases, fifty-three years after Brown, underline the persistent challenge and defining characteristic of our American public education system. It is inequality, not merely as manifest in the much-lamented “achievement gap,” but inequality of opportunity to learn and to fully prepare for citizenship that prevent too many children in the United States from fulfilling their potential. The avoidance of segregation and its ever-present attendant, concentrated poverty, has been one imperfect and yet, as research demonstrates,5 generally effective and increasingly accepted route toward ameliorating social inequality and connecting disenfranchised children to mainstream opportunity.
The justices will deliver a ruling on the new cases as early as this spring. At issue is whether or not school districts may employ policies specifically designed to avoid racial segregation and create racially diverse schools. Like in many schools districts across the country, local educators in both Louisville and Seattle had developed their desegregation policies without a court order, on the conviction (well-supported by research6) that racial diversity holds benefits for their students and their communities. As federal courts backed away from desegregation in the 1990s, one of the great, untold education stories is about educators on the ground who became increasingly convinced of diversity’s educational benefits and segregation’s harms. Socially concerned educators across the country, officials in Louisville and Seattle among them, consciously worked to reach for Brown’s aspiration through voluntary means even though no court had required them to do so.
Specifically, the educators in Louisville and Seattle sought to achieve racially mixed classrooms by allowing parents a choice of schools. In some rare cases, a child’s first choice of school might be denied if his or her enrollment upset the racial balance. Conservative advocates then took up the cause of some parents whose children had been denied their first choices and sued in federal court. In response, the school districts argue that their voluntary plans work and suggest that eliminating plans for diversity would be going backwards.
With regards to race and class in education, we are, in some ways, indeed going backwards. Georgetown Law Professor Sheryl Cashin shows in her research that the “overall direction of census trends since 1970 . . . has been one of growing economic segmentation of American life space.”7 Demographic studies show a small decline in class segregation during the 1990s, likely the result of a robust economy, Cashin notes. The total number of residents of high-poverty neighborhoods dropped from the 10.4 million peak in 1990 to 7.9 million in 2000.8 It looked like – and was – progress of a sort. But as demographic analyses demonstrates, the level of concentrated poverty in 2000 actually represents an increase from 1970 levels.9 Since 1970, the number of census tracts (a rough approximation of neighborhood) with 40 percent poor residents has nearly doubled, from about 1,300 in 1970 to 2,500 in 2000.10
Public schools mirror and magnify trends in the larger society. Statistically, children of all racial groups are generally more segregated than adults. While some racial minority children might not live in technically high-poverty neighborhoods, they still, in many cases, attend high-poverty schools. This is because childless white people are far more likely than with families with school-age children to live in integrated settings. According to the Civil Rights Project at Harvard, in 2003, a typical Black or Latino student attended a school where nearly half the students were poor. This is more than twice the share of poverty found in the school of a typical white student.11
Since the 1960s, we have known about the problems that concentrated poverty and segregation introduce for schools and the students inside of them. Research shows that the chances of school failure are disproportionately high for children who live in poverty.12 But the chances of failing and dropping out of school are even higher for poor children in high-poverty schools. Generally, high-poverty schools employ less qualified teachers, have higher rates of teacher turnover and register higher rates of suspensions and expulsions. By the time a student reaches high school in such a system, it is likely that even if he were qualified, he still would not be offered higher level Advanced Placement courses that are routine offerings in middle-class schools. In many urban districts that educate disproportionate shares of children of color, graduation rates commonly sink to the thirty to forty percent range.13
So, here we are at a terrible place. We have blatant evidence of continuing, vast inequality but no systematic policy for achieving equal educational opportunity in a nation that prides itself in providing equal life chances to all. The nation’s one route to avoiding segregation may very well be snuffed out by the Supreme Court this spring. So where do we go from here?
First of all, it is important to remember that inequalities we see in education are a reflection of structural inequalities that exist in every segment of American society. The problems manifest in classrooms stem from a variety of tangled forces. This means solutions require the cooperative, connected work of socially concerned scholars, litigators, activists and people on the ground working in local communities to overcome a variety of challenges both inside and outside of schools.
With this recognition in mind, the Charles Hamilton Houston Institute for Race and Justice advocates two principal approaches to ameliorating the inequality plaguing our nation’s schools and the society in which they are situated. Both initiatives recognize that those who are committed to providing equal life chances to children can no longer afford to work in separated, isolated spheres divided by categories such as “health,” “housing,” and “education,” or “environmental science.” As Charles Hamilton Houston, the brilliant litigator and former vice-Dean of Howard Law School once said, “This fight for equality of educational opportunity (was) not an isolated struggle. All our struggles must tie in together and support one another . . . . We must remain on the alert and push the struggle farther with all our might.”14
We do not yet know how the Supreme Court will rule on the cases from Louisville and Seattle. However, the decisions, no matter their content, provide an opportunity to craft a new, responsive equal opportunity agenda for children attending public school and living in the United States. That is why, soon after the decisions come down, the Institute will bring together the most original thinkers from what are often considered separate and discrete arenas of scholarship, jurisprudence, political activism, and community-level programming. We will explore the remaining permissible means by which educators at the local level might be able to achieve racially diverse or at least allow more children to attend predominantly middleclass schools. We will review findings and feasibility of urban-to-suburban transfer programs that have demonstrated promise in such places as Boston, St. Louis, and regions of Connecticut. We will explore the use of “income” or “social class” or “neighborhood” as variables for school assignment that might avoid high-poverty schools, in part by allowing more children to attend predominantly middle class institutions.
The most prominent educational legislation this decade, the No Child Left Behind Act,15contains within it, a provision that allows children in so-termed “failing” schools to transfer to school that is not failing. However, the provision allows for children to transfer only within their current school district. For far too many children – especially children of color in urban districts – this provides the option only of attending another high-poverty, segregated, overwhelmed school. At the least, the federal government should provide the option for children in failing schools to transfer out of their school district. Other federal policies in housing, for example, including the Moving To Opportunity Program, have recognized the benefits of reducing concentrated poverty. Why then, should we not apply such recognition to our education policies? This small adjustment to No Child Left Behind, coupled with adequate information and counseling and transportation for families interested in transfer, would signal a commitment not just to equal opportunity, but to a policy direction – reduction of concentrated poverty – that has actually shown success.
Meanwhile, much of our contemporary discourse about education is occurring in a vacuum. In other words, we increasingly talk about educational problems within schools as if there are not larger structural, social inequalities that create huge challenges for children, teachers and other educators within schools. For example, Abigail and Stephan Thernstrom’s influential and engaging book No Excuses argues that poverty, single-parenthood, health disparities in impoverished communities and myriad other social inequities are mere “excuses” educators use to deflect blame for low achievement.16 This notion, though it has been embraced by the Bush Administration, flies in the face of social science evidence, the experience of educators in public schools and basic common sense.
A child with an incarcerated father, an overworked mother, living in a neighborhood where street violence is common and healthy food and outdoor recreation difficult to come by, is simply not in a position to rise to her full potential in the classroom or outside it. Thus, in addition to exploring remaining means for creating integrated schools, the Houston Institute is committed to bringing together thinkers from diverse fields to study and put in place research-based, community generated solutions to those social problems and inequalities outside of school that affect a child’s opportunity to excel within schools. This includes work in fields we might not usually associate with “education.”
For example, increasing numbers of children suffer from the instability and stress of having a parent either in jail or involved with the criminal justice system. An estimated 1.5 million minor children – two percent of all minors – have a parent in state or federal prison.17 About 7.3 million children – about ten percent of all minor children in the United States – have a parent in prison, jail, on probation or on parole.18 According to experts, the effects of incarceration on children are numerous and cannot help but negatively affect a child’s school performance. In early childhood, a child may have impaired social development, be unable to form bonds with others and have acute reactions to stress, much like that of a trauma victim. By seven to ten years old, a child may have a very poor self-concept and by early adolescence, a child may reject limits on his behavior and continue having more severe so-called trauma-reactive behaviors, such as depression, aggression, concentration and attention problems and withdrawal. By late adolescence, that child will be at great risk for incarceration himself.19
In the coming year, we plan to develop initiatives in selected cities to ease the transition of ex-prisoners who are returning to their communities in desperate need of work and reconnections to family. Such programs not only help the returning ex-prisoner, but the communities in which they live and the children whom they had left behind. Societal solutions, designed to improve educational opportunity and enhance life chances, however, cannot simply dump more responsibility on already overwhelmed public schools. That said, the experience of schoolteachers, administrators, counselors, parents and children within public schools certainly should inform such programs and policies.
In 2003, then-Justice Sandra Day O’Connor cast her vote in Grutter v. Bollinger20 in favor of retaining some affirmative action policies at the higher education level. In her written opinion, however, Justice O’Connor also stated her expectation that in twenty-five years, the use of racial preferences “will no longer be necessary.”21 This sunset provision could be viewed as an unreachable target given the vast divide between the haves and have nots. But Justice O’Connor’s words could also be viewed as a call to arms – an urgent need to make measurable progress not just in education, but on all fronts. At the Houston Institute, we take Justice O’Connor’s words as a motivation, not to lament the considerable backward movement, but to make, in Charles Hamilton Houston’s words, to “push the struggle farther with all our might” and work even harder to ameliorate inequalities that hinder equal opportunity for children here in the richest country in the world.
* Charles J. Ogletree, Jr., is Jesse Climenko Professor of Law and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Susan Eaton is research director at the Institute.
 426 F.3d 1162 (9th Cir. 2005), cert. granted, 126 S. Ct. 2351 (2006) [hereinafter Parents Involved].
 360 F.3d 583 (6th Cir. 2004), cert. granted, 126 S. Ct. 2351 (2006).
 347 U.S. 483 (1954).
 Id. at 493.
 See, e.g., Brief of the American Educational Research Association as Amici Curiae Supporting Respondents at 3, Parents Involved, 126 S. Ct. 2351 (2006) (Nos. 05-908 & 05-915) (“Research studies have shown that racial diversity in elementary and secondary education leads to important short-term and long-term benefits for students of all racial backgrounds. Among these benefits are improved cross-racial understanding; the reduction of stereotyping and prejudice; gains in student achievement; a strong sense of civic engagement and willingness to live and work in diverse settings; and better preparation for higher education, work, and participation in a diverse society. Not only do diverse schools benefit students as individuals, they also promote social cohesion and reinforce democratic values that this Court has long recognized as foundations for good citizenship.”)
 See, e.g., Heidi McGlothlin & Melanie Killen, Intergroup Attitudes of European American Children Attending Ethnically Homogeneous Schools, 77 Child Dev. 1375 (2006); Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of Intergroup Contact Theory, 90 J. Personality & Soc. Psychol. 751 (2006).
 SHERYL CASHIN, THE FAILURES OF INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 97 (2004).
 PAUL A. JARGOWSKY, THE BROOKINGS INSTITUTION, STUNNING PROGRESS, HIDDEN PROBLEMS: THE DRAMATIC DECLINE OF CONCENTRATED POVERTY IN THE 1990S (2003).
 Alexander Polikoff, Racial Inequality and the Black Ghetto, 13 Poverty & Race 6 (2004).
 ERICA FRANKENBERG, CHUNGMEI LEE & GARY ORFIELD, THE CIVIL RIGHTS PROJECT AT HARVARD, A MULTIRACIAL SOCIETY WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 4 (2003).
 See, e.g., RICHARD ROTHSTEIN, CLASS AND SCHOOLS (2004).
 See CHRISTOPHER B. SWANSON, THE URBAN INSTITUTE, PROJECTIONS OF 2003-04 HIGH SCHOOL GRADUATES: SUPPLEMENTAL ANALYSES BASED ON FINDINGS FROM WHO GRADUATES? WHO DOESN’T? (2004) (Detroit: 21.7 percent; Baltimore: 38.5 percent; New York City: 38.9 percent; Milwaukee, 43.1 percent; Cleveland, 43.8 percent. Los Angeles, 44.2 percent.)
 Charles Hamilton Houston, Don’t Shout Too Soon, Crisis 43 (March 1936).
 Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended primarily in scattered sections of 20 U.S.C.).
 ABIGAIL THERNSTROM & STEPHAN THERNSTROM, NO EXCUSES: CLOSING THE RACIAL GAP IN LEARNING (2004).
 CHRISTOPHER J. MUMOLA, BUREAU OF JUSTICE STATISTICS, INCARCERATED PARENTS AND THEIR CHILDREN, NCJ 182335 (2000).
 CHILDREN OF INCARCERATED PARENTS (Katherine Gabel & Denise Johnston eds., 1997).
 539 U.S. 306 (2003).
 Id. at 322-23.