School re-segregation is shaping up to be one of the new battles for equality in Trump’s America. Earlier this year, opponents of the desegregation policies in Jefferson County Public Schools in Kentucky proposed a bill in the state legislature that would destroy the county’s busing program that ensures diversity of race and income in the classroom. And now get this, from Alabama: There is, also in a county called Jefferson, a predominantly white community that may be allowed to form its own school system for the explicit purpose of separating students by race.
Last week Judge Madeline Haikala of the U.S. District Court in Birmingham ruled that the city of Gardendale can move forward with its plan to secede from the Jefferson County school system despite also concluding that race motived their decision to separate and that Gardendale had failed to meet its legal burden to prove that its separation would not impair desegregation in the county.
“We have no issue with the factual or legal findings, but the remedy fails to cure the constitutional violation,” said Monique Lin-Luse of the NAACP Legal Defense Fund, who represents some of the plaintiffs in this case, to The Daily Beast. “The case law is very clear. The precedent is very clear. If it is found that Gardendale’s separation would impede the desegregation of the county school system, then they should not be allowed to separate.”
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As it stands, Judge Haikala’s ruling could set a precedent for allowing race to be a factor in segregation or separation cases. School districts that champion diversity in the classroom regularly must jump through legal hoops to sustain their diversity following the Supreme Court’s 5-4 decision in Meredith v. Jefferson County Public Schools in 2006 that outlawed strict race-based quotas. Judge Haikala’s decision, however, could open the door to race being used as implement for separation and not integration.
Think about that for a minute. In 2017.
During the Obama administration, public education was broadly framed as a civil rights issue with an emphasis on improving educational opportunities to underserved communities including Native Americans, communities of color, Americans with disabilities and more. Yet under President Trump, Betsy De Vos, and Jefferson Sessions, public education has been reframed as a matter of “choice” and not civil rights. Under this presidency, empowering parents’ right to choose their child’s education has become the new focus, and in places like Gardendale they have been emboldened to express their “right” to not send their white children to schools with African Americans.
According to a recent survey of black and Latino parents by the Leadership Conference Education Fund, parents of color already believe that their children are disproportionately subjected to a failing school system due to their race, so Haikala’s decision to empower the white community that champions segregation to solve the problem has caught may people by surprise.
Under Haikala’s ruling, Gardendale can begin operation of the two elementary schools within the city, and they will undergo a three-year trial/review period to see if they can adequately implement desegregation policies. If they favorably pass the review period they can then also take over the middle school and high school in Gardendale.
This decision is incredibly problematic for numerous reasons.
Three years with only a data pool consisting of two elementary schools is not a long enough or large enough data set to form conclusive results regarding the effectiveness of their diversity policies. Also, for Gardendale to have a diverse student body they will have to bus minority students in from other cities in Jefferson County, and now minority parents may be compelled to send their children to schools within a new school district that was forged from the county’s commitment to racial discrimination. This potentially opens the door to blaming minority families for Gardendale’s lack of diversity because the parents opted to not send their children to schools where they are not wanted.
Additionally, Jefferson County just spent $55 million building Gardendale High School with the intent of it being a beacon for diversity, and now Gardendale wants to incorporate this high school into its new school system. Haikala’s decision also did not specify the amount that Gardendale would be forced to pay in compensation for the school. Some estimates say that Gardendale may need to pay only $8 million for the high school. Not only does Gardendale want to exclude minorities, but they also want to take away their brand new high school and pay next to nothing for it.
Despite the gall and troubling actions of Gardendale, the most disturbing aspect of this situation is how much of American society, and especially Alabama, aims to view public education as essentially a private institution where income and race largely determine the quality of a child’s education.
Alabama’s state constitution still contains Section 256 from the era of Jim Crow that explicitly states that blacks and whites must be educated in separate schools.
Following Brown v. Board, Alabama amended its state constitution (Amendment 111, aka the Boutwell Amendment) to say that no child in the state had a right to a public education at public expense. The amendment allowed the state to defund black schools and fund white schools. State Senator Albert Boutwell, who wrote the amendment, called it the “freedom of choice law” in that white Alabamians should have the right to segregate, but African Americans should not have the right to integrate.
In Martin Luther King Jr.’s famed Letter From Birmingham Jail, King directly addressed Boutwell, saying, “I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation.”
Yet Jefferson County, Alabama, like most Southern school systems, opposed Brown v. Board, and desegregation was legally imposed on the county in 1972—nearly two decades after the landmark decision. Jefferson County remains beholden to this ruling, and predominantly white enclaves within the county have consistently reiterated Boutwell’s “freedom of choice” rhetoric as they demand for separation. Gardendale is only the latest in a long line of challenges.
In 2017, proponents of school choice and those who decry how their tax dollars are paying for other people’s children’s education directly or indirectly espouse Boutwell’s “freedom of choice” rhetoric that views public education as a right to choose instead of a civil right for equality. The notion of “choice” and abundance can have an intoxicating allure, but with regard to American education, especially in the South, “choice” has always served as a genteel masking of racial segregation.
If this ruling stands, one can only imagine how many districts might try to follow suit, and what recourse will we have? Both the Justice and Education departments advocate for choice over equality, and the Supreme Court, which due to Judge Neil Gorsuch has become more conservative, has already handicapped diversity efforts via Meredith. America thought that the battle against segregation had been defeated decades ago, but under the façade of “choice” it has returned anew to once again blight our society.
