Schools Are Resegregating. There’s a Push for the Supreme Court to Consider That

When the U.S. Supreme Court heard nearly five hours of arguments about the consideration of race in higher education on Oct. 31, much of the focus was understandably about the details of undergraduate admissions at Harvard University and the University of North Carolina. They are the two institutions whose practices are being challenged by opponents of affirmative action in the cases.

But in a handful of briefs filed with the court, and in some of the comments during the lengthy arguments, there were reminders that racial diversity among student enrollments remains a delicately pursued but often elusive goal in K-12 schools as well.

“If you’re Black, you’re more likely to be in an underresourced [K-12] school,” Justice Sonia Sotomayor said to a lawyer challenging race-conscious admissions at the University of North Carolina. “You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as … having less academic potential.”

Sotomayor’s observation may have been influenced by a friend-of-the-court brief filed in the college cases by the Council of the Great City Schools, the coalition of the nation’s 76 largest urban school districts. The brief focused on telling the court that racial segregation and inequality persist in elementary and secondary schools, nearly 70 years after Brown v. Board of Education of Topeka held that racially segregated schools were inherently unequal.

“Despite the best efforts of school districts like the council’s members to create more diverse schools, racial segregation has increased over the last two decades,” the council’s brief says. “As a result, educational inequities persist.”

The council’s brief was principally written by John W. Borkowski, a veteran education lawyer who has worked in the trenches helping school districts strive for racial diversity and equity.

Borkowski, now with the Chicago law firm Husch Blackwell LLP, was on the briefs and at the lawyer’s table in the Supreme Court in 2007 helping the Seattle school district defend its race-conscious student assignment plan. The court struck down the plan in Parents Involved in Community Schools v. Seattle School District and greatly curtailed the ways K-12 schools may use race in assigning students to schools.

With the council’s brief in the college admissions cases, Borkowski said he felt it important to present some of the diversity challenges K-12 schools face.

“If you believe public education is a public good and builds on a promise of opportunity, then you believe in the need for racial diversity,” he said in an interview.

Reports document resegregation of the nation’s schools

Borkowski marshaled research evidence for the Great City Schools brief’s assertion that racial segregation in the nation’s schools persists and has been getting worse.

The brief cites a 2019 report from the Civil Rights Project at the University of California, Los Angeles, which concluded that at the 65th anniversary of the Brown decision, “intense levels of segregation … are on the rise again.”

Black students, who accounted for 15 percent of public school enrollment at the time of the report, attended schools where Black students made up an average of 47 percent of enrollment, said the CRP report.

Students of Asian background were attending schools where 24 percent of students were fellow Asian-Americans. Meanwhile, white and Latino students were the most segregated groups, the CRP report said.

White students, on average, attended a school in which 69 percent of the students were white, while Latino students attended a school in which 55 percent of the students were Latino.

Black students attended schools with a combined Black and Latino enrollment averaging 67 percent, and Latino students attended schools with a combined Black and Latino enrollment averaging 66 percent.

“The data in this report shows a disconcerting increase of Black segregation in all parts of the country,” says the report. “This is true even though African Americans are a slowly declining share of the total student population, and many now live in suburban areas.”

The CRP report indicates that the proportion of “intensely segregated minority schools,” defined as those with an enrollment of 90 percent or more of non-white students, increased from 14.8 percent of schools in 2003 to 18.2 percent in 2016.

Borkowski also turned to a more recent assessment of K-12…

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