October 4, 2018 | Professor James M. McGoldrick has published the article “Two Shades of Brown: The Failure of Desegregation in America: Why It Is Irremediable (and a Modest Proposal)” (SSRN) in the Cardozo Journal of Equal Rights and Social Justice (24 Cardozo J. Equal Rts. & Soc. Just. 101). The article examines the segregated state of American public schools and suggests a solution.
Abstract of “Two Shades of Brown: The Failure of Desegregation in America”
This article argues that since Brown I in 1954, the Supreme Court’s decisions made the current segregated state of our public schools almost inevitable. First, neither the gradualism approach ordered by Brown II nor the later immediacy requirement of Green had much chance for success, though both were likely the product of the political realities of the time. Second, defining the constitutional violation as strictly de jure segregation was a defensible interpretation of the state action requirement of the Fourteenth Amendment, but the distinction between de jure and de facto segregation hamstrung legitimate judicial efforts. Third, appropriate remedies for de jure segregation were so circumscribed that no effective remedy was possible. Fourth, once the illegal de jure segregation was remedied to the degree practicable, as the Court’s amorphous standard called for, the inevitable resulting segregation, in the Court’s own alchemy, became de facto segregation. Fifth, the failure to require equal funding for education made de facto racial segregation de facto substandard schools. Sixth, the Court imposed a strict scrutiny test for the use of race to remedy de facto segregation, making any remedy unlikely, even in those few jurisdictions willing to undertake the task of dismantling de facto segregated schools. Seventh, there is no likely judicial remedy for desegregating American schools, and only the political decision to make education equal and adequate across all economic and racial substructures can make a difference. The author proposes a federal spending program to encourage integration innovation and to encourage all states and interested private parties to gradually increase integration and equality in education and outcome.