One key reason that achieving a racial balance in schools has proven so difficult is because the concept of the “neighborhood school” reflects and reinforces segregated living patterns.

As has been demonstrated by Massey & Denton in their classic book American Apartheid, the Lewis Mumford Center, and copious other sources, residential segregation remains very high. The average white person in America lives in a neighborhood that is 80% white, 6.7% black, and just under 8% Hispanic. The average black person, in contrast, lives in a neighborhood that is 51% black, 11% Hispanic, and 33% white. Forty-one percent of black individuals live in areas that can be described as “hyper-segregated.”

These patterns of segregation are little changed from the situation in 1980. Researchers have developed a segregation index (‘known as the “Index of Dissimilarity”) to measure the phenomenon. An index score of 60 or higher is considered very high. In 2000, 33 major metropolitan areas scored a 60 or above. Of the top 20 most segregated metropolitan areas in 2000, only one – Los Angeles – made more than a 10-point improvement over the last 20 years. (Louisville, number 26 on the list, made a 9-point improvement, from 74 in 1980 to 65 in 2000.)

Is it any wonder then, that for the 2000-2001 school year we have school systems with skewed racial balances, such as Washington, DC and Detroit (95% of students black or Hispanic), Baltimore (88%), Chicago (87%), Los Angeles (84%) and St. Louis (82%)?

This begs the question: Why is there such a high degree of residential segregation? A large amount can be explained by housing discrimination, at individual, institutional, and government levels. The historical backdrop is too extensive to cover here, but a brief overview is warranted. It is clear that the mortgage lending policies (read: redlining) of the Federal Housing Administration in the middle part of the last century contributed mightily to segregated patterns today. Similarly, zoning decisions by municipalities (such as where to site affordable, public, and/or multi-family housing), restrictive covenants (which were legal until 1948), racial violence and intimidation, and huge levels of private discrimination that were untouched by any law until 1968, all exacerbated the problem.

Currently, steering by real estate brokers and other private acts of discrimination continue to perpetuate segregation. A recent set of tests conducted by the National Fair Housing Alliance (NFHA) revealed significant levels of discrimination by real estate agents in all twelve cities the test covered. For example, blacks and Hispanics were outright refused service 20% of the time. When testers were given the opportunities to see homes, steering was found in 87% of the instances. Ironically, many of the agents used the schools as a proxy for race when steering potential white customers away from black neighborhoods. Other forms of housing discrimination remain common – NFHA estimates 3.7 million instances of discrimination occur annually. Testing data consistently show that blacks and Hispanics will experience discrimination anywhere between 15 and 50% of the time when they attempt to secure housing in the private rental market (the differences in the statistics reflect different types of discrimination tested for).

School desegregation efforts also have contributed to further housing segregation. In the seventies and eighties, as school districts (voluntarily or under legal duress) became more flexible in their assignment plans and bussed students to achieve a racial mix, white parents simply exited urban school systems altogether and moved to the suburbs. In the 1995 case of Missouri v. Jenkins, the Supreme Court held that school districts were not required to engage in desegregation plans that reached across district borders.

The fallacy argued by the opponents of the Seattle and Louisville plans is that such efforts must fail because they fail to remediate any intentional discrimination. They note that Seattle never operated de jure dual school systems, and that Kentucky’s legal segregation was considered “cured” in 2000 when the court released it from its consent decree. For example, Parents Involved makes the following argument in its brief, “the District did not adopt its racial balancing plan to remedy past discrimination. Seattle does not operate and has never operated a segregated or dual school system.” At oral argument, Parents Involved’s counsel stated the issue as follows: “The central question in this case is whether outside of the remedial context, diversity . . . can be a compelling interest that justifies the use of race discrimination in high school admissions.” (emphasis added) Because they are not guilty of (recent) education-related discrimination, the argument goes, the school districts have no legitimate reason to undertake a race-conscious school assignment plan.

These arguments, however, ignore the massive levels of public, private, and institutional discrimination that have and will continue to perpetuate housing segregation virtually everywhere. In any given place, the municipality’s (and the white public’s) metaphorical hands might be clean when it comes to school-related discrimination. But we would be hard-pressed to find too many areas where discriminatory actions by local governments, the housing industry, and private citizens did NOT lead to housing segregation over the last half-century. In an ideal world, the root issue of past and present housing discrimination would be addressed in order to create truly balanced living patterns and all of the positive benefits that are expected to flow therefrom. In the real world, school boards are stuck addressing just one symptom of the problem.

A group of housing law scholars and researchers filed an excellent brief as Amicus Curiae, raising many of the arguments I make here (and more). I am not an expert in education law, and cannot say how the Court will apply the strict scrutiny, narrow tailoring, and compelling state interest tests in this case. However, I do hope that the Supreme Court will look to the housing-related causes of the current situation, and recognize that the problem these school districts seek to address is more systemic and pervasive than just a racial imbalance in the schools.