My recent blog post on the resegregation of American schools generated some controversy. With school segregation back to 1960s levels, why are so many people eschewing desegregation efforts? Some readers thought I was arguing that desegregation doesn’t improve the education and life opportunities of poor students and students of color. It absolutely does. Those benefits, for white and non-white students alike, have been well documented. Ample research also documents the harms of racially isolated schools.

However, the Supreme Court has made it increasingly difficult to achieve school desegregation. In fact, I think it’s virtually impossible in many communities. The three examples below illustrate that point, and show why researchers and advocates must explore alternative solutions to the ever-widening achievement gap.

1. City-to-suburb desegregation is nearly impossible to achieve through litigation. A profoundly influential case deterring desegregation was 1974’s Milliken v. Bradley, which created nearly insurmountable legal barriers to desegregating schools across city and suburban school districts. In the 1970s and ‘80s, white flight from declining cities, combined with housing discrimination, created majority-white suburbs and majority-black cities. Suburbanites’ desire to protect their school districts’ autonomy generated an immense backlash to desegregation plans that mixed city and suburban students.

The Milliken precedent made the school district line a sacrosanct barrier that desegregation plans could not cross. In effect, the ruling locked millions of poor students and students of color into inner-city schools, protected resource-rich suburban schools from desegregation plans linking them to cities, and further incentivized white flight. Although the Court’s decision left open the possibility of within-district desegregation, such efforts would have little effect, given that an estimated 84 percent of segregation is between (not within) school districts.

2. Court-ordered desegregation plans are being dismantled. After Milliken, three Supreme Court cases in the 1990s significantly reduced court oversight and weakened the requirements of desegregation orders imposed on cities that had previously maintained segregated schools. Under these rulings, a school district can be released from a court-ordered desegregation decree without proving that it has become integrated or narrowed racial achievement gaps. As long as the district maintains some aspects of its desegregation plan—including elements unrelated to student assignment, like equal resources, transportation, and desegregated staff—and do not overtly discriminate, a school district can be declared “unitary,” at which point it can return to de facto segregation practices such as neighborhood-based school assignment.

As a result, more than 200 of the 483 school districts that were under court-ordered desegregation orders in 1990 have been granted unitary status and released from court oversight. In the years since release, these districts experienced substantial increases in segregation. 

3. Voluntary desegregation plans can no longer be race-conscious. Even metropolitan areas that voluntarily choose to integrate their schools find it difficult to craft effective desegregation plans. In 2007, the Supreme Court struck down voluntary integration programs in Seattle and Louisville, ruling that a student’s race or ethnicity cannot be used to determine school assignment in voluntary desegregation plans. This means school districts must use proxies for race (like family income or other indicators of socioeconomic status), which are less effective in producing racially integrated schools.

Barriers to desegregation shouldn’t prevent us from closing the education gap

School integration is a worthy endeavor. A preponderance of evidence demonstrates that poor and minority students benefit greatly when they attend desegregated schools. The problem is that the Supreme Court has dismantled active desegregation programs while making new court-ordered plans nearly impossible to win and weakening the tools available to voluntary plans. As a result, public schools today are just as segregated as they were in the late 1960s.

Wherever desegregation is legally and demographically feasible, it should definitely be pursued. But with the political and jurisprudential barriers to large-scale desegregation so great and the racial achievement gap as wide as ever, I think education and civil rights activists must look beyond litigation strategies for remedies to achieve educational equality.