You’ve probably never heard of one of the worst Supreme Court decisions

But we're still dealing with its awful legacy.

Daniel Hertz
July 24
Daniel Hertz is a masters student in public policy at the University of Chicago. He has written about urban affairs for several publications, including Citylab.

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Forty years ago this month, the Supreme Court released one of its most villainous, yet under-appreciated, decisions. Its legacy hangs over nearly every major school system in the country, but its name means nothing to most people.

Milliken v. Bradley began in 1970, when the NAACP sued the state of Michigan to desegregate Detroit’s schools. In particular, they wanted a solution that would involve both the city and the suburbs since, by that point, the vast majority of Detroit’s residents were black, and meaningful de-segregation within city limits had become almost impossible.

After hours of testimony on redlining, exclusionary zoning, police-sanctioned violence, and other sordid tales of American housing discrimination, the federal judge on the case, Stephen Roth, agreed with the plaintiffs that government “at all levels” bore responsibility for residential segregation. As a result, Roth concluded, the government could not legitimately enforce the school boundaries that residential segregation was designed to exploit.

If the school districts’ boundary lines were drawn today, he wrote, they would be struck down as unconstitutional.

Roth’s proposal, instead of redrawing the Detroit area’s school districts, was simply to make them irrelevant: he ruled that some black students from Detroit would have to enroll in schools out in the suburbs, and lots of white kids in the suburbs would have to enroll in schools in Detroit.

The plan was not without its problems. But it was the first time a judge had recognized the crucial role city-suburb borders played in maintaining segregated schools, and ordered a major metropolitan area to do something about it.

Unfortunately, in July 1974, the Supreme Court voted 5-4 to overturn Roth. The majority found no evidence that governments had encouraged segregation in the Detroit metro area – despite, for example, the fact that the mayor of suburban Dearborn had been quoted just a few years before in the New York Times saying, “I favor segregation.” Before that, he told a newspaper: “Every time we hear of a Negro moving…in, we respond quicker than you do to a fire.”

Among Dearborn’s 90,000 residents, there were fewer than 100 black people.

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In other realms, Roth’s logic – that political boundaries must be subservient to larger questions of justice, including segregation – is taken for granted. Think, for example, about Congressional districts. To start with, they’re redrawn every ten years to adjust to shifting populations. Not only that, but there are lots of rules designed to make sure the new districts aren’t unfair in ways that violate anyone’s civil rights. If they are, they can be thrown out by a judge, and ordered to be redrawn.

We go through all of this because we understand that unfair Congressional districts can be devastating for minority communities, denying them political power and, along with it, the ability to fight for policies that improve their lives.

School districts, of course, play just as large a role in determining their residents’ life chances, but share basically none of these rules. In general, school districts don’t have to be redrawn at any regular interval, and many haven’t changed for decades, if not generations.

No one is reviewing the districts that already exist, to make sure that they’ve been drawn in ways that don’t unfairly disadvantage anyone. And they’re certainly not throwing out school districts, and ordering them to be redrawn to, say, reduce segregation.

In fact, more recently the Supreme Court has voted to curtail attempts to desegregate even within school districts, to the extent it’s possible.

Predictably, the result of all this is that many American school districts are moving towards pre-Civil Rights Movement levels of racial separation. In the last few years, reports from ProPublica and UCLA’s Civil Rights Project, among others, have found that school segregation has been getting worse for decades.

Sometimes, we’re tempted to justify our separate schools by arguing that they’re equal. Or, more accurately, that they could be equal: we tell the stories of racially and economically segregated schools that have “beaten the odds” by performing as well academically as their wealthier, more integrated peers. But entire school districts shouldn’t have to “beat the odds” to get a decent education. Moreover, as the phrase implies, the vast majority don’t. In his book Fives Miles Away, A World Apart, law professor James Ryan cites a study that found that high-poverty, high-minority schools have a one-in-300 chance of being “high-performing,” or scoring in the top third of schools on at least two subjects in two grades over two years. Mostly white, middle-class schools have a one-in-four shot.

Nor is more money enough, even where it’s needed. Studies have shown that low-income students learn more in economically integrated schools than they do in mostly poor ones – even when the poor schools have more funding.

Piercing school district borders – the walls that prevent enrollment or, in many cases, funds from being spread more evenly between white or relatively more affluent districts and ones populated by black, brown, or poorer families nearby – isn’t a simple task, politically or logistically.

But the five justices who wrote Milliken 40 years ago wanted us to believe something else: that it wasn’t a necessary task, morally.

They were wrong.

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Jared Bernstein · July 23