The future of school desegregation

Northwestern University Law Review

Volumn 94, Issue 4, 2000, Pages 1157-1220

  Parker, Wendy ^a  

^a NONE

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EID: 0348193025     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (447)

1. YOGI BERRA, THE YOGI BOOK: "I REALLY DIDN'T SAY EVERYTHING I SAID" 118-19 (1998).
2. Ecclesiastes 7:8 (King James).
3. By court-ordered school desegregation, I mean school districts required by injunction or consent decree to desegregate. Omitted from this definition are school districts operating under voluntary school desegregation plans, i.e., plans implemented outside of the judicial process, or under plans negotiated with the then-Department of Health, Education, and Welfare (HEW). See generally Paul S. Hoff, Note, The Courts, HEW, and Southern School Desegregation, 77 YALE L.J. 321 (1967) (detailing the role of HEW in remedying school segregation in the South). Also excluded is the desegregation of public colleges and universities.
4. See Arthur v. Nyquist, 904 F. Supp. 112, 115 (W.D.N.Y. 1995).
5. See Keyes v. Congress of Hispanic Educators, 902 F. Supp. 1274, 1308 (D. Colo. 1995).
6. See Stell v. Board of Pub. Educ., 860 F. Supp 1563, 1585 (S.D. Ga. 1994).
7. See Dowell v. Board of Educ., 778 F. Supp.) 144, 1196 (W.D. Okla. 1991), aff'd, 8 F.3d 1501 (10th Cir. 1993).
8. See Coalition to Save Our Children v. State Bd. of Educ., 901 F. Supp. 784, 785 (D. Del. 1995), aff'd, 90 F.3d 752 (3d Cir. 1996).
9. See Tasby v. Woolery, 869 F. Supp. 454, 477 (N.D. Tex. 1994). 10 See Jenkins v. Missouri, 959 F. Supp. 1151, 1169 (W.D. Mo.), aff'd, 122 F.3d 588 (8th Cir. 1997).
10. See Little Rock Sch. Dist. v. North Little Rock Sch. Dist., 131 F.3d 1255, 1257 (8th Cir. 1997); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 921 F.2d 1371, 1394 (8th Cir. 1990).
11. In other words, the courts have ordered remedial plans specifically designed to ensure the termination of the lawsuit.
12. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
13. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
14. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
15. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
16. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
17. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
18. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
19. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac-Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
20. In 1996, Time Magazine, for example, claimed on its cover that we are "Back to Segregation" and that "America has now given up on school integration." TIME, April 29, 1996. The title of the inside article and the article itself were equally pessimistic about the continued viability of school desegregation. See James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned, as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate but Equal," TIME, April 29, 1996, at 39, 40 (reporting that "[t]he combination of legal revisionism and residential segregation is effectively ending America's bold attempt to integrate the public schools"); see also, e.g., Jerelyn Eddings, Second Thoughts About Integration: Black Ambivalence About Busing Has Less to Do with Ideology than with Results, U.S. NEWS & WORLD REPORT, July 28, 1997, at 32 (reporting the high frustration of African-Americans with the results of bussing); Ruth Marcus, Court Cuts Federal Desegregation Role: Schools' Anti-Bias Obligations Eased, WASH. POST, April 1, 1992, at A1 (anticipating that "many of the several hundred school districts now operating under federal court orders [will] seek removal from court control"); Anjetta McQueen, Deaths of Pivotal Figures in Brown Mark Passing of Desegregation Era, EDUC. WK., Oct. 21, 1998, at 14 (contending that "Brown stands as a legal monument, but desegregation itself is by and large being abandoned by the courts, by policymakers, and by Americans of all races"); Orlando Patterson, What to Do When Busing Becomes Irrelevant, N. Y. TIMES, July 18, 1999, at A17 (declaring "[b]using is dead"); Jeffrey Rosen, Bus Stop: The Lost Promise of School Integration, N.Y. TIMES, April 2, 2000, § 4 (Week in Review), at 1 (questioning whether "efforts" to achieve racially integrated public schools [are] legally and politically doomed"). For articles discussing the misleading effect of media coverage on litigation, see Daniel S. Bailis & Robert J. Mac- Coun, Estimating Liability Risks with the Media as Your Guide, 80 JUDICATURE, Sept.-Oct. 1996, at 64; Michael J. Saks, Do We Really Know Anything About the Behavior of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1154-68 (1992).
21. See Davison M. Douglas, The End of Busing, 95 MICH. L. REV. 1715, 1728 (1997) (reviewing GARY ORFIELD & SUSAN E. EATON, THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (predicting that "in the next few years, lower courts are likely to find that many more school districts have achieved unitary status"); Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1096 (1996) (noting that "much of the current school desegregation activity . . . focuses on when to cease judicial oversight"); Bradley W. Joondeph, Skepticism and School Desegregation, 76 WASH. U. L.Q. 161, 161 (1998) (describing a "curtain fall[ing] on court-ordered desegregation nationwide"); Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that "many school boards are considering filing unitary status motions"); James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 254 (1999) (characterizing school desegregation as "entering its twilight phase"); Dennis Schapiro, Looking for Justice in All the Wrong Places: Reflections on the End of the School Desegregation Era, 17 HAMLINE J. PUB. L. & POL'Y 323, 323 (1996) (noting an "end" of school desegregation and efforts to "force - or even entice - families to send their children to schools designed specifically to desegregate"); see also infra Section I.B.4 (reviewing academic literature declaring an end to court-ordered desegregation).
22. See Davison M. Douglas, The End of Busing, 95 MICH. L. REV. 1715, 1728 (1997) (reviewing GARY ORFIELD & SUSAN E. EATON, THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (predicting that "in the next few years, lower courts are likely to find that many more school districts have achieved unitary status"); Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1096 (1996) (noting that "much of the current school desegregation activity . . . focuses on when to cease judicial oversight"); Bradley W. Joondeph, Skepticism and School Desegregation, 76 WASH. U. L.Q. 161, 161 (1998) (describing a "curtain fall[ing] on court-ordered desegregation nationwide"); Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that "many school boards are considering filing unitary status motions"); James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 254 (1999) (characterizing school desegregation as "entering its twilight phase"); Dennis Schapiro, Looking for Justice in All the Wrong Places: Reflections on the End of the School Desegregation Era, 17 HAMLINE J. PUB. L. & POL'Y 323, 323 (1996) (noting an "end" of school desegregation and efforts to "force - or even entice - families to send their children to schools designed specifically to desegregate"); see also infra Section I.B.4 (reviewing academic literature declaring an end to court-ordered desegregation).
23. See Davison M. Douglas, The End of Busing, 95 MICH. L. REV. 1715, 1728 (1997) (reviewing GARY ORFIELD & SUSAN E. EATON, THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (predicting that "in the next few years, lower courts are likely to find that many more school districts have achieved unitary status"); Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1096 (1996) (noting that "much of the current school desegregation activity . . . focuses on when to cease judicial oversight"); Bradley W. Joondeph, Skepticism and School Desegregation, 76 WASH. U. L.Q. 161, 161 (1998) (describing a "curtain fall[ing] on court-ordered desegregation nationwide"); Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that "many school boards are considering filing unitary status motions"); James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 254 (1999) (characterizing school desegregation as "entering its twilight phase"); Dennis Schapiro, Looking for Justice in All the Wrong Places: Reflections on the End of the School Desegregation Era, 17 HAMLINE J. PUB. L. & POL'Y 323, 323 (1996) (noting an "end" of school desegregation and efforts to "force - or even entice - families to send their children to schools designed specifically to desegregate"); see also infra Section I.B.4 (reviewing academic literature declaring an end to court-ordered desegregation).
24. See Davison M. Douglas, The End of Busing, 95 MICH. L. REV. 1715, 1728 (1997) (reviewing GARY ORFIELD & SUSAN E. EATON, THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (predicting that "in the next few years, lower courts are likely to find that many more school districts have achieved unitary status"); Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1096 (1996) (noting that "much of the current school desegregation activity . . . focuses on when to cease judicial oversight"); Bradley W. Joondeph, Skepticism and School Desegregation, 76 WASH. U. L.Q. 161, 161 (1998) (describing a "curtain fall[ing] on court-ordered desegregation nationwide"); Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that "many school boards are considering filing unitary status motions"); James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 254 (1999) (characterizing school desegregation as "entering its twilight phase"); Dennis Schapiro, Looking for Justice in All the Wrong Places: Reflections on the End of the School Desegregation Era, 17 HAMLINE J. PUB. L. & POL'Y 323, 323 (1996) (noting an "end" of school desegregation and efforts to "force - or even entice - families to send their children to schools designed specifically to desegregate"); see also infra Section I.B.4 (reviewing academic literature declaring an end to court-ordered desegregation).
25. See Davison M. Douglas, The End of Busing, 95 MICH. L. REV. 1715, 1728 (1997) (reviewing GARY ORFIELD & SUSAN E. EATON, THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (predicting that "in the next few years, lower courts are likely to find that many more school districts have achieved unitary status"); Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1096 (1996) (noting that "much of the current school desegregation activity . . . focuses on when to cease judicial oversight"); Bradley W. Joondeph, Skepticism and School Desegregation, 76 WASH. U. L.Q. 161, 161 (1998) (describing a "curtain fall[ing] on court-ordered desegregation nationwide"); Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that "many school boards are considering filing unitary status motions"); James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 254 (1999) (characterizing school desegregation as "entering its twilight phase"); Dennis Schapiro, Looking for Justice in All the Wrong Places: Reflections on the End of the School Desegregation Era, 17 HAMLINE J. PUB. L. & POL'Y 323, 323 (1996) (noting an "end" of school desegregation and efforts to "force - or even entice - families to send their children to schools designed specifically to desegregate"); see also infra Section I.B.4 (reviewing academic literature declaring an end to court-ordered desegregation).
26. See Davison M. Douglas, The End of Busing, 95 MICH. L. REV. 1715, 1728 (1997) (reviewing GARY ORFIELD & SUSAN E. EATON, THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (predicting that "in the next few years, lower courts are likely to find that many more school districts have achieved unitary status"); Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1096 (1996) (noting that "much of the current school desegregation activity . . . focuses on when to cease judicial oversight"); Bradley W. Joondeph, Skepticism and School Desegregation, 76 WASH. U. L.Q. 161, 161 (1998) (describing a "curtain fall[ing] on court-ordered desegregation nationwide"); Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (1993) (noting that "many school boards are considering filing unitary status motions"); James E. Ryan, Schools, Race, and Money, 109 YALE L.J. 249, 254 (1999) (characterizing school desegregation as "entering its twilight phase"); Dennis Schapiro, Looking for Justice in All the Wrong Places: Reflections on the End of the School Desegregation Era, 17 HAMLINE J. PUB. L. & POL'Y 323, 323 (1996) (noting an "end" of school desegregation and efforts to "force - or even entice -families to send their children to schools designed specifically to desegregate"); see also infra Section I.B.4 (reviewing academic literature declaring an end to court-ordered desegregation).
27. Bradley W. Joondeph, Missouri v. Jenkins and the De Facto Abandonment of Court-Enforced Desegregation, 71 WASH. L. REV. 597, 599 (1996) ; see also infra Section I.B.4 (discussing in more detail how academics have characterized the Supreme Court's recent school desegregation decisions) The Supreme Court's recent school desegregation opinions are analyzed infra Section I.B.
28. Chris Hansen, Are the Courts Giving Up? Current Issues in School Desegregation, 42 EMORY L.J. 863, 868 (1993); see also Section I.C (exploring the role of lower courts in terminating school desegregation litigation).
29. See infra Section I.D (discussing recent attempts by African-Americans to limit school desegregation efforts).
30. See infra Section I.D (reviewing the recent efforts by parents to limit race conscious student assignment practices).
31. See infra Section I.E (noting the increasing segregation in public schools).
32. See, e.g., Missouri v. Jenkins, 515 U.S. 70 (1995) (Jenkins III); Freeman v. Pitts, 503 U.S. 467 (1992); Board of Educ. v. Dowell, 498 U.S. 237 (1991); infra Section I.B (analyzing the Supreme Court's recent school desegregation decisions).
33. See infra notes 205-17, 257-60 and accompanying text.
34. For example, only 24 of the 189 school districts have had their school desegregation litigation terminated, even though almost all of the cases were filed in the late 1960s or early 1970s. See infra note 308 and accompanying text.
35. See infra notes 347-48 and accompanying text (analyzing the potential harms of inactive school desegregation cases).
36. See infra notes 322-30 and accompanying text (arguing that plaintiffs and defendants lack appropriate incentives to ensure effective implementation of school desegregation decrees and thus ultimate dismissal of the lawsuit).
37. See generally Wendy Parker, The Supreme Court and Public Law Remedies: A Tale of Two Kansas Cities, 50 HASTINGS L.J. 475 (1999) (arguing that the Supreme Court has ceded too much remedial power to defendants in public law cases); see also infra notes 331-34 and accompanying text (documenting the passivity of most federal court judges).
38. See infra Section III (proposing that the federal judiciary should be more active in overseeing school desegregation litigation).
39. See infra notes 355-59 and accompanying text (arguing that despite the pro-defendant approach of the Supreme Court, school desegregation litigation overall provides a powerful tool to redress educational inequities).
40. This Article is followed by an Appendix that provides more detail on the empirical studies.
41. Mark Twain is often inaccurately quoted as saying, "Reports of my death have been greatly exaggerated." THE OXFORD DICTIONARY OF QUOTATIONS 706 (1996). The correct quote is, "The report of my death was an exaggeration." Id.; see also BARTLETT'S FAMILIAR QUOTATIONS 528 (1992).
42. Mark Twain is often inaccurately quoted as saying, "Reports of my death have been greatly exaggerated." THE OXFORD DICTIONARY OF QUOTATIONS 706 (1996). The correct quote is, "The report of my death was an exaggeration." Id.; see also BARTLETT'S FAMILIAR QUOTATIONS 528 (1992).
43. Lynch v. Sessions, 942 F. Supp. 1419, 1427 (M.D. Ala. 1996) (three-judge court).
44. DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 711 (2d ed. 1994).
45. Most public law cases result in lengthy remedial processes. See, e.g, In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525 (11th Cir. 1994) (employment discrimination case in its 21st year); Huertas v. East River Hous. Project, 992 F.2d 1263 (2d Cir. 1993) (housing discrimination case marking its second decade); Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325 (1st Cir. 1991) (mental health institution case lasting 23 years); Keith v. Volpe, 960 F. Supp 1448 (C.D. Cal. 1997) (environmental protection and housing discrimination case marking a quarter century); Inmates of the Allegheny County Jail v. Wecht, 848 F. Supp. 52 (W.D. Pa. 1994) (prison conditions case lasting 21 years); Wyatt v. King, 803 F. Supp. 377 (M.D. Ala. 1992) (mental health institution case 25 years old). Likewise, some commercial cases (most notably antitrust) involve extended remedial proceedings. See, e.g., United States v. Western Elec. Co., 1996 WL 255904 (D.D.C. 1996) (ending a 1982 remedy in the AT&T antitrust case after passage of the Telecommunications Act).
46. See, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1298 (1976) (noting that the public law remedy "prolongs and depends, rather than terminates, the court's involvement with the dispute").
47. 349 U.S. 294, 300 (1955) (Brown II).
48. Id. at 301.
49. Professor Paul Gewirtz makes an interesting argument that the delay in remedy may have been beneficial for the plaintiff class. See Paul Gewirtz, Remedies and Resistance, 92 YALE L.J 585, 609-28 (1983); see also Mark Tushnet, Public Law Litigation and the Ambiguities of Brown, 61 FORDHAM L. REV. 23, 27-28 (1992) (arguing the standard of "all deliberate speed" "encouraged the federal courts to see themselves as managers of programs of social transformation, programs embedded in what the courts understood to be the requirements of the Constitution").
50. Professor Paul Gewirtz makes an interesting argument that the delay in remedy may have been beneficial for the plaintiff class. See Paul Gewirtz, Remedies and Resistance, 92 YALE L.J 585, 609-28 (1983); see also Mark Tushnet, Public Law Litigation and the Ambiguities of Brown, 61 FORDHAM L. REV. 23, 27-28 (1992) (arguing the standard of "all deliberate speed" "encouraged the federal courts to see themselves as managers of programs of social transformation, programs embedded in what the courts understood to be the requirements of the Constitution").
51. See Brown II, 349 U.S. at 301.
52. Green v. County Sch. Bd., 391 U.S. 430, 435-36 (1968).
53. 448 F.2d 770 (5th Cir. 1971).
54. The meaning of the word "unitary" has been far from clear. See infra note 53 and accompanying text. The more common usage today of "unitary" is that the school district has completed the task of desegregation and the lawsuit should be dismissed. See infra note 59 and accompanying text.
55. See Youngblood, 448 F.2d at 771.
56. See id.
57. In other words, some school districts were completely removed from judicial oversight and the suits dismissed. See, e.g., Taylor v. Houston Mun. Separate Sch. Dist., 726 F.2d 262, 264-65 (5th Cir. 1984) (noting that the school district was subject to a court order for sixteen months, until 1971 when the suit was "finally dismissed and terminated"); United States v. Corinth Mun. Separate Sch. Dist., 414 F. Supp. 1336, 1345-46 & n.14 (N.D. Miss. 1976) (terminating the lawsuit and dissolving all outstanding injunctions)
58. These cases followed a remarkable 11-year silence on school desegregation issues. See Parker, supra note 25 at 508-09.
59. 498 U.S. 237 (1991).
60. 503 U.S. 467 (1992).
61. 515 U.S. 70 (1995) (Jenkins III).
62. See infra notes 123-25 and accompanying text.
63. See infra notes 132-45 and accompanying text.
64. See Dowell, 498 U.S. at 242. For a more detailed discussion of this case, see Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 CORNELL L. REV. 1, 20-25 (1992).
65. See Dowell, 498 U.S. at 240.
66. See id. at 244.
67. See id. at 245-46; see also Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1419 n.3 (11th Cir. 1992) (noting the continued confusion over the use of the term "unitary"); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1414 n.12 (11th Cir. 1985) (drawing a distinction between "unitary school district" and "unitary status").
68. See Dowell, 498 U.S. at 246.
69. Id. at 249-50.
70. Id. at 250.
71. Id. at 247.
72. See supra notes 38-42 and accompanying text (discussing earlier uses of the term "unitary").
73. Dowell, 498 U.S. at 245.
74. See Parker, supra note 25, at 523 (contending that the Dowell test is based on the longstanding principle that the scope of the violation determines the scope of the remedy).
75. "Vestiges" are present day effects of past, illegal discrimination. Commonly cited potential areas of vestiges are the six Green factors - student assignment, faculty assignment, staff assignment, facilities, transportation, and extracurricular activities. Green v. County Sch. Bd., 391 U.S. 430, 435 (1968). The Supreme Court has not defined vestiges more specifically, although it uses the term frequently. See infra note 72 and accompanying text.
76. E.g., Wright v. Council of City of Emporia, 407 U.S. 451, 468 (1972) (emphasis added); Davis v. Board. of Sch. Comm'rs, 402 U.S. 33, 37 (1972); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 26 (1971).
77. Dowell, 498 U.S. at 247.
78. 503 U.S. 467, 480, 493 (1992).
79. See LAYCOCK, supra note 31, at 395-97.
80. Granted, the choice of wording may reveal the Supreme Court's belief that the time for termination is at hand. Yet, I believe that the different word choice will not, by itself, compel different results.
81. 443 U.S. 526 (1979) (Dayton II).
82. 443 U.S. 449 (1979) (Columbus II).
83. First, systemwide discrimination is presumed, absent persuasive counterproof, from discrimination in a substantial part of the system. See Columbus II, 443 U.S. at 455-58 ("Proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system itself is prima facie proof of a dual school system and supports a finding to this effect absent sufficient contrary proof by the Board."). Second, and more importantly in the later stages of litigation, once a violation is found, any current disparity is presumed to be caused by the defendant's unlawful actions, unless the defendant proves that its actions in no way contributed to the disparity. See Dayton II, 443 U.S. at 537 (holding the defendants responsible for current segregation if the segregation was "caused at least in part by [the defendants'] prior intentionally segregative official acts"). The causation presumptions are discussed in more detail infra notes 96-97 and accompanying text.
84. 498 U.S. 237, 248 (1991) (Marshall, J., dissenting). Justice Marshall criticized the majority's approach to local control. He defined local control as relevant only as to "feasibility." Id. at 267.
85. See infra notes 133-34 and accompanying text.
86. The difficulty of defining vestiges is largely linked to the complexities of proximate cause in school desegregation, an issue discussed in more detail infra notes 117-18 and accompanying text. Both Justices Marshall and Scalia have noted the ambiguity of "vestiges." See Freeman v. Pitts, 503 U.S. 467, 501 (1992) (Scalia, J., concurring) (observing that "[w]e have never sought to describe how one identifies a condition as the effluent of a violation, or how a 'vestige' or 'remnant' of past discrimination is to be recognized"); Dowell, 498 U.S. at 260-61 (1991) (Marshall, J., dissenting) (recognizing that "the Court has never explicitly defined what constitutes a 'vestige' of state-enforced segregation").
87. See Erwin Chemerinsky, The Supreme Court, 1988 Term Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 57, 73, 100 (1989) (arguing that "the Court . . . appear[s] to have avoided value choices by deferring to the political process, when in reality it has made a value choice in choosing such deference"). The Supreme Court earlier had required judicial restraint by lower court judges but also, "apparently without sense of paradox, over the same period the Court ha[d] wielded doctrine more and more innovatively to achieve desired substantive outcomes." Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 5 (1984); see also William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 664 (1982) (arguing that "the Court has tried to reduce the role of discretion by its formulation or choice of legal rule, so that in those areas where it has been able effectively to eliminate or reduce remedial discretion the Court has been more willing to recognize constitutional rights than it might otherwise have been"); Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 347 (1997) (after reviewing the Supreme Court's treatment of claims of racial discrimination, concluding that "[e]very time there was a conflict between racial equality and some other identifiable value, the Court was quick to compromise the pursuit of racial equality"). The same is true with the meaningless concept of proximate cause articulated in Freeman and Jenkins III. See John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132, 154 (1981) (arguing that "by calling on the deciders to 'find' what is not there to be found, . . ensures that judgments will be based almost entirely on personal values"); see also infra notes 116-17 and accompanying text.
88. See Erwin Chemerinsky, The Supreme Court, 1988 Term Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 57, 73, 100 (1989) (arguing that "the Court . . . appear[s] to have avoided value choices by deferring to the political process, when in reality it has made a value choice in choosing such deference"). The Supreme Court earlier had required judicial restraint by lower court judges but also, "apparently without sense of paradox, over the same period the Court ha[d] wielded doctrine more and more innovatively to achieve desired substantive outcomes." Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 5 (1984); see also William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 664 (1982) (arguing that "the Court has tried to reduce the role of discretion by its formulation or choice of legal rule, so that in those areas where it has been able effectively to eliminate or reduce remedial discretion the Court has been more willing to recognize constitutional rights than it might otherwise have been"); Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 347 (1997) (after reviewing the Supreme Court's treatment of claims of racial discrimination, concluding that "[e]very time there was a conflict between racial equality and some other identifiable value, the Court was quick to compromise the pursuit of racial equality"). The same is true with the meaningless concept of proximate cause articulated in Freeman and Jenkins III. See John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132, 154 (1981) (arguing that "by calling on the deciders to 'find' what is not there to be found, . . ensures that judgments will be based almost entirely on personal values"); see also infra notes 116-17 and accompanying text.
89. See Erwin Chemerinsky, The Supreme Court, 1988 Term Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 57, 73, 100 (1989) (arguing that "the Court . . . appear[s] to have avoided value choices by deferring to the political process, when in reality it has made a value choice in choosing such deference"). The Supreme Court earlier had required judicial restraint by lower court judges but also, "apparently without sense of paradox, over the same period the Court ha[d] wielded doctrine more and more innovatively to achieve desired substantive outcomes." Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 5 (1984); see also William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 664 (1982) (arguing that "the Court has tried to reduce the role of discretion by its formulation or choice of legal rule, so that in those areas where it has been able effectively to eliminate or reduce remedial discretion the Court has been more willing to recognize constitutional rights than it might otherwise have been"); Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 347 (1997) (after reviewing the Supreme Court's treatment of claims of racial discrimination, concluding that "[e]very time there was a conflict between racial equality and some other identifiable value, the Court was quick to compromise the pursuit of racial equality"). The same is true with the meaningless concept of proximate cause articulated in Freeman and Jenkins III. See John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132, 154 (1981) (arguing that "by calling on the deciders to 'find' what is not there to be found, . . ensures that judgments will be based almost entirely on personal values"); see also infra notes 116-17 and accompanying text.
90. See Erwin Chemerinsky, The Supreme Court, 1988 Term Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 57, 73, 100 (1989) (arguing that "the Court . . . appear[s] to have avoided value choices by deferring to the political process, when in reality it has made a value choice in choosing such deference"). The Supreme Court earlier had required judicial restraint by lower court judges but also, "apparently without sense of paradox, over the same period the Court ha[d] wielded doctrine more and more innovatively to achieve desired substantive outcomes." Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 5 (1984); see also William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 664 (1982) (arguing that "the Court has tried to reduce the role of discretion by its formulation or choice of legal rule, so that in those areas where it has been able effectively to eliminate or reduce remedial discretion the Court has been more willing to recognize constitutional rights than it might otherwise have been"); Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 347 (1997) (after reviewing the Supreme Court's treatment of claims of racial discrimination, concluding that "[e]very time there was a conflict between racial equality and some other identifiable value, the Court was quick to compromise the pursuit of racial equality"). The same is true with the meaningless concept of proximate cause articulated in Freeman and Jenkins III. See John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132, 154 (1981) (arguing that "by calling on the deciders to 'find' what is not there to be found, . . ensures that judgments will be based almost entirely on personal values"); see also infra notes 116-17 and accompanying text.
91. See Erwin Chemerinsky, The Supreme Court, 1988 Term Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 57, 73, 100 (1989) (arguing that "the Court . . . appear[s] to have avoided value choices by deferring to the political process, when in reality it has made a value choice in choosing such deference"). The Supreme Court earlier had required judicial restraint by lower court judges but also, "apparently without sense of paradox, over the same period the Court ha[d] wielded doctrine more and more innovatively to achieve desired substantive outcomes." Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 5 (1984); see also William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 664 (1982) (arguing that "the Court has tried to reduce the role of discretion by its formulation or choice of legal rule, so that in those areas where it has been able effectively to eliminate or reduce remedial discretion the Court has been more willing to recognize constitutional rights than it might otherwise have been"); Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 347 (1997) (after reviewing the Supreme Court's treatment of claims of racial discrimination, concluding that "[e]very time there was a conflict between racial equality and some other identifiable value, the Court was quick to compromise the pursuit of racial equality"). The same is true with the meaningless concept of proximate cause articulated in Freeman and Jenkins III. See John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132, 154 (1981) (arguing that "by calling on the deciders to 'find' what is not there to be found, . . ensures that judgments will be based almost entirely on personal values"); see also infra notes 116-17 and accompanying text.
92. See Erwin Chemerinsky, The Supreme Court, 1988 Term Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 57, 73, 100 (1989) (arguing that "the Court . . . appear[s] to have avoided value choices by deferring to the political process, when in reality it has made a value choice in choosing such deference"). The Supreme Court earlier had required judicial restraint by lower court judges but also, "apparently without sense of paradox, over the same period the Court ha[d] wielded doctrine more and more innovatively to achieve desired substantive outcomes." Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 5 (1984); see also William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 664 (1982) (arguing that "the Court has tried to reduce the role of discretion by its formulation or choice of legal rule, so that in those areas where it has been able effectively to eliminate or reduce remedial discretion the Court has been more willing to recognize constitutional rights than it might otherwise have been"); Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 347 (1997) (after reviewing the Supreme Court's treatment of claims of racial discrimination, concluding that "[e]very time there was a conflict between racial equality and some other identifiable value, the Court was quick to compromise the pursuit of racial equality"). The same is true with the meaningless concept of proximate cause articulated in Freeman and Jenkins III. See John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132, 154 (1981) (arguing that "by calling on the deciders to 'find' what is not there to be found, . . ensures that judgments will be based almost entirely on personal values"); see also infra notes 116-17 and accompanying text.
93. Dowell, 498 U.S. at 251 (Marshall, J., dissenting).
94. See id. at 242 (recognizing that "11 of 64 elementary schools would be greater than 90% black, 22 would be greater than 90% white plus other minorities, and 31 would be racially mixed"); id. at 255 (Marshall, J., dissenting) (noting the same).
95. For example, the Department of Justice, under Presidents Reagan and Bush, made similar arguments. See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioners at 10 n.5, Freeman v. Pitts, 503 U.S. 467 (1992) (No. 89-1290) (arguing that "a desegregation plan is a final judgment; . . . satisfactory implementation of a judgment normally should discharge a defendant from further obligations"); Brief for the United States as Amicus Curiae Supporting Petitions at 24, Board of Educ. v. Dowell, 498 U.S. 237 (1991) (No. 89-1080) (asserting "faithful, continuous compliance with such a well conceived plan ... is compelling evidence that the school district has become unitary").
96. Dowell, 498 U.S. 237, 241-42 (1991) (quoting district court order).
97. See Dowell v. Board of Educ., 606 F. Supp. 1548, 1551 (W.D. Okla. 1985), rev'd on other grounds, 795 F.2d 1516 (10th Cir. 1986).
98. Dowell, 498 U.S. at 242.
99. See id. at 244.
100. See supra note 53 and accompanying text.
101. Dowell, 498 U.S. at 246.
102. See supra note 79 and accompanying text.
103. See infra notes 261-63 and accompanying text (summarizing results of empirical studies documenting the long periods of inactivity that plague most school desegregation cases).
104. See Freeman v. Pitts, 503 U.S. 467, 471 (1992).
105. See Pitts v. Freeman, 755 F.2d 1423, 1424 (11th Cir. 1985).
106. See Freeman, 503 U.S. at 471.
107. For a more detailed discussion of Freeman v. Pitts, see Brown, supra note 50, at 26-30.
108. See Freeman, 503 U.S. at 491; see also Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (Jenkins III) (stating the three-part test from Dowell).
109. See Freeman, 503 U.S. at 490-91.
110. In considering partial unitary status, a district court should specifically consider: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court's decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. Id. at 491.
111. Id. at 489
112. During the 1986-87 school year, "of the 22 ... high schools, five had student populations that were more than 90% black, while five other schools had student populations that were more than 80% white; and of the 74 elementary schools . . . , 18 are over 90% black, while 10 are over 90% white." Id. at 476-77. Justice Blackmun, concurring in the judgment, noted that in the 38 years since Brown v. Board of Education, 347 U.S. 483 (1954), "the students in DeKalb County, Ga., never have attended a desegregated school system even for one day. The majority of 'black' students never have attended a school that was not disproportionately black ." Id. at 509 (Blackmun, J., concurring in the judgment).
113. The Court in Dowell noted the possibility that proximate cause may limit the scope of school desegregation remedies. There the Court allowed in a footnote that "private decisionmaking and economics" may have caused current residential segregation, not the illegal activity that the district court had earlier held was the cause of past residential segregation. Board of Educ. v. Dowell, 498 U.S. 237, 250 n.2 (1991); see also id. at 264 (Marshall, J., dissenting) (criticizing the majority's "hint" that private actions, unaffected by state action, could be the sole cause of current racial housing segregation).
114. In a subsequent school desegregation case, Jenkins III, the Court further explored proximate cause. See infra notes 114-19 and accompanying text.
115. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 455-58 (1979) (Columbus II) (holding that "[p]roof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system itself is prima facie proof of a dual school system and supports a finding to this effect absent sufficient contrary proof by the Board"); Keyes v. School Dist. No. 1, 413 U.S. 189, 208 (1973) (ruling that "a finding of intentionally segregative school board actions in a meaningful portion of a school system . . . creates a presumption that other segregated schooling within the system is not adventitious"). But see Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (Dayton I) (holding that lower courts "must determine how much incremental segregative effects these
116. See Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537 (1979) (Dayton II) (holding the defendants responsible for current segregation if the segregation was "caused at least in part by [the defendants'] prior intentionally segregative official acts"); Keyes, 413 U.S. at 211 n.17 (holding that "the burden becomes the school authorities' to show that the current segregation is in no way the result of those past segregative actions").
117. For example, the school district's African-American population rose from 5.6% in 1969 when the remedy was first ordered to 47% in 1986. See Freeman, 503 U.S. at 475. The increase in population was accompanied by continued housing segregation. See id. at 476.
118. The school district apparently desegregated its student body for one year, in 1969. See id. at 477.
119. Justice Souter authored a concurring opinion to explain when a school district could still be legally responsible for the demographic changes. See id. at 507-08 (Souter, J., concurring). Justice Blackmun, joined by Justices O'Connor and Stevens, also argued that school districts can cause or contribute to demographic changes. See id. at 512-18 (Blackmun, J., concurring in the judgment). 101 Id. at 500 (Scalia, J., concurring).
120. Justice Scalia deemed the determination of the degree of segregation due to a defendant's actions, and not due to private or other forces, "guesswork." Id. at 503 (Scalia, J., concurring). He further argued that the "allocation of the burden of proof foreordains the result in almost all of the 'vestige of past discrimination' cases." Id. Moreover, "it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools." Id. at 506. The difficulty of proximate cause is discussed infra notes 117-18 and accompanying text.
121. See id. at 494 ("The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.").
122. Id. at 491-92 (commenting that "with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish").
123. Id. at 496 ("The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith."); see also id. at 498 ("A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation."). Justices Blackmun, O'Connor, and Stevens strongly supported the causation presumptions. See id. at 511-13 (Blackmun, J., concurring in the judgment).
124. For example, the Court emphasized the harm of segregation and a school district's obligation to cure that harm, see id. at 485-86, and the appropriateness of additional relief when necessary, even in the second decade of the lawsuit and outside the Green factors See id. at 492-93.
125. Areas with a pro-defendant outcome include proximate cause, see id. at 494-96, local control, see id. at 489-90, and partial unitary status. See id. at 491.
126. See infra notes 117-18 and accompanying text.
127. See supra note 61 (listing the six Green factors).
128. Freeman, 503 U.S. at 492.
129. The remedy began in 1985, and by the end of 1998, the estimated costs of the remedy reached $2 billion dollars. See Julie Blair, Mo. Makes Final K.C. Desegregation Payment, EDUC. WK., Dec. 16, 1998, at 20. This lawsuit is covered in more depth in Parker, supra note 25; see also Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation "With All Deliberate Speed," 39 HOW. L.J. 693 (1996); Richard A. Epstein, The Remote Causes of Affirmative Action, or School Desegregation in Kansas City, Missouri, 84 CAL. L. REV. 1101 (1996); Joondeph, supra note 15; Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 FORDHAM L. REV. 57 (1992); John Choon Yoo, Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts, 84 CAL. L. REV. 1121 (1996)
130. The remedy began in 1985, and by the end of 1998, the estimated costs of the remedy reached $2 billion dollars. See Julie Blair, Mo. Makes Final K.C. Desegregation Payment, EDUC. WK., Dec. 16, 1998, at 20. This lawsuit is covered in more depth in Parker, supra note 25; see also Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation "With All Deliberate Speed," 39 HOW. L.J. 693 (1996); Richard A. Epstein, The Remote Causes of Affirmative Action, or School Desegregation in Kansas City, Missouri, 84 CAL. L. REV. 1101 (1996); Joondeph, supra note 15; Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 FORDHAM L. REV. 57 (1992); John Choon Yoo, Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts, 84 CAL. L. REV. 1121 (1996)
131. The remedy began in 1985, and by the end of 1998, the estimated costs of the remedy reached $2 billion dollars. See Julie Blair, Mo. Makes Final K.C. Desegregation Payment, EDUC. WK., Dec. 16, 1998, at 20. This lawsuit is covered in more depth in Parker, supra note 25; see also Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation "With All Deliberate Speed," 39 HOW. L.J. 693 (1996); Richard A. Epstein, The Remote Causes of Affirmative Action, or School Desegregation in Kansas City, Missouri, 84 CAL. L. REV. 1101 (1996); Joondeph, supra note 15; Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 FORDHAM L. REV. 57 (1992); John Choon Yoo, Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts, 84 CAL. L. REV. 1121 (1996)
132. The remedy began in 1985, and by the end of 1998, the estimated costs of the remedy reached $2 billion dollars. See Julie Blair, Mo. Makes Final K.C. Desegregation Payment, EDUC. WK., Dec. 16, 1998, at 20. This lawsuit is covered in more depth in Parker, supra note 25; see also Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation "With All Deliberate Speed," 39 HOW. L.J. 693 (1996); Richard A. Epstein, The Remote Causes of Affirmative Action, or School Desegregation in Kansas City, Missouri, 84 CAL. L. REV. 1101 (1996); Joondeph, supra note 15; Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 FORDHAM L. REV. 57 (1992); John Choon Yoo, Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts, 84 CAL. L. REV. 1121 (1996)
133. The remedy began in 1985, and by the end of 1998, the estimated costs of the remedy reached $2 billion dollars. See Julie Blair, Mo. Makes Final K.C. Desegregation Payment, EDUC. WK., Dec. 16, 1998, at 20. This lawsuit is covered in more depth in Parker, supra note 25; see also Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation "With All Deliberate Speed," 39 HOW. L.J. 693 (1996); Richard A. Epstein, The Remote Causes of Affirmative Action, or School Desegregation in Kansas City, Missouri, 84 CAL. L. REV. 1101 (1996); Joondeph, supra note 15; Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 FORDHAM L. REV. 57 (1992); John Choon Yoo, Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts, 84 CAL. L. REV. 1121 (1996)
134. 515 U.S. 70 (1995) (Jenkins III). The Supreme Court considered the case on two previous occasions. See Missouri v. Jenkins, 495 U.S. 33 (1990) (Jenkins II) (examining the power of a federal court to order an increase in local taxes); Missouri v. Jenkins, 491 U.S. 274 (1989) (Jenkins I) (affirming award of attorneys' fees).
135. See Jenkins III, 515 U.S. at 73.
136. See supra notes 103-05 and accompanying text.
137. See 515 U.S. at 101-02. The Court fails to state who bears this burden of proof. Perhaps the burden is the plaintiff's, given that the issue of causation originally was part of the plaintiff's cause of action. 116 See Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (Dayton I).
138. See Gewirtz, supra note 36, at 785 (defining causation as "the most common problem in school desegregation cases"); Leubsdorf, supra note 73, at 135 (explaining that the remedial question of defining what the world would be absent the defendant's wrong "cannot be answered with any reliability except by those possessing a time machine"); Parker, supra note 25, at 519-21, 559-63 (detailing the futility of proximate cause in public law litigation in general and school desegregation in particular).
139. Jenkins III, 515 U.S. at 102.
140. See Richard Thompson Ford, Geography and Sovereignty: Jurisdictional Formation and Racial Segregation, 49 STAN. L. REV. v. 1365, 1387 (1997) (criticizing the Supreme Court's decision in Jenkins III as "part of the now typical narrative of the 'new segregation'" under which "the state must recognize the desire of its citizens to live and congregate in racially separate spheres," "(r]ather than attempt to create integrated institutions no one wants"); Selmi, supra note 73, at 350 (concluding that in recent race discrimination cases "the Court seems to be suggesting that the current state of racial equality is as good as we are likely to get, and that we can no longer rely on the court to encourage greater equality").
141. See Jenkins III, 515 U.S. at 78; Brief for State of Missouri at 25, Missouri v. Jenkins, 512 U.S. 1287 (1994) (arguing that "there is no legal basis to assume that providing raises to parking lot attendants, custodians, cooks, and other similar noninstructional personnel will reverse the effects of the defendant's past de jure discrimination"). 121 Jenkins III, 515 U.S. at 100. The dissent challenged this characterization of the district court's rulings. See id. at 148-50 (Souter, J., dissenting).
142. The dissent argued that the salary increase order was an appropriate exercise of the district court's equitable discretion to redress a reduction in achievement due to the original violation, which was an uncontested vestige. See Jenkins III, 515 U.S. at 154 (Souter, J., dissenting). The dissent would have also affirmed the denial of partial unitary status to the State on quality of education programs because the State failed to follow the procedures set forth in Freeman or to prove the three-part Freeman test. See id. at 151-52; see also supra notes 90-91 and accompanying text (describing the Freeman procedures and test).
143. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
144. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
145. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
146. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
147. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
148. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
149. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
150. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
151. Mark V. Tushnet, The "We've Done Enough" Theory of School Desegregation, 39 HOW. L.J. 767, 767 (1996) (designating Jenkins III as the "'we've done enough'" theory, comparable to the Civil Rights Cases of 1883); see also, e.g., Patricia A. Brannan, Missouri v. Jenkins: The Supreme Court Reconsiders School Desegregation in Kansas City. Criteria for Unitary Status, and Remedies Reaching Beyond School District Lines, 39 HOW. L.J. 781, 781 (1996) (arguing that "[a]lthough Jenkins III does little to change prevailing school desegregation law, it suggests that a majority of the Supreme Court is increasingly skeptical of expansive and prolonged remedies in school desegregation cases"); Douglas, supra note 14, at 1736-37 (characterizing "the Court [as] poised to exit the school desegregation arena altogether"); Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 170 (1999) (reviewing GARY ORFIELD & SUSAN E. EATON, DISMANTLING DESEGREGATION: THEQUIET REVERSAL OF BROWN V. BOARD OF EDUCATION (1996)) (explaining the recent cases as "clear hostility to the continuation of court ordered desegregation remedies"); Joondeph, supra note 15, at 681 (describing "the Court [as] ending this important chapter in our constitutional history subtly and without words"); Donald E. Lively, Desegregation and the Supreme Court: The Fatal Attraction of Brown, 20 HASTINGS CONST. L.Q. 649, 662 (1993) (contending that "[r]ecent decisions have effectively relegated desegregation to a historical episode which now is largely past"); John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L. REV. 345, 470 (1995) (concluding that "(i]n 1994, the dedication of the Justices of the Supreme Court to enforcing the Brown principle is not clear"); Charles J. Russo & Lawrence F. Rossow, Missouri v. Jenkins Redux: The End of the Road for School Desegregation or Another Stop on an Endless Journey?, 103 EDUC. LAW. REP. 1,1-2 (1995) (presenting Jenkins III as "a further retrenchment in the struggle to end racial segregation in the schools"); Leland Ware, Forward: School Desegregation, Civil Rights, and The Supreme Court s 1994-1995 Term, 15 ST. LOUIS U. PUB. L. REV. 1, 12 (1995) (reasoning that "[t]he Supreme Court has effectively directed the lower courts to get out of the business of supervising school desegregation"). But see Epstein, supra note 111, at 1104 ("Because the Supreme Court remains willing to tolerate such a loose connection between today's remedy and yesterday's remote wrong, its response in Jenkins III was too timid to curb the endless litigation and remedial excess that has arisen in the afterglow of Brown."), David I. Levine, The Latter Stages of Enforcement of Equitable Decrees The Course of Institutional Reform Cases After Dowell, Rufo, and Freeman, 20 HASTINGS CONST. L.Q. 579, 583 (1993) (describing Dowell and Freeman as "far from being disastrous for the proponents of court-ordered school desegregation); Yoo, supra note 111, at 1135 (contending that "the Supreme Court's decisions have given insufficient regard to the restraints on the federal judicial power that our federal structure requires").
152. Erwin Chemerinsky, Lost Opportunity: The Burger Court and the Failure to Achieve Equal Educational Opportunity, 45 MERCER L. REV. 999, 1014 (1994).
153. See Kevin Brown, Termination of Public School Desegregation: Determination of Unitary Status Based on the Elimination of Invidious Value Inculcation, 58 GEO. WASH. L. REV. 1105, 1109 (1990) (noting that "[o]ne of the intractable problems of the Supreme Court's jurisprudence in the area of de jure segregation has been its inability to articulate a coherent theory of the constitutional harm resulting from de jure segregation of public schools that justifies desegregation as the principal means to eliminate the harm"); Peter M. Shane, School Desegregation Remedies and the Fair Governance of Schools, 132 U. PA. L. REV. 1041, 1044 (1984) (describing the Supreme Court school desegregation cases as "puzzling" and ambiguous); Mark G. Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 72 LAW & CONTEMP. PROBS. 56, 87 (Autumn 1978) (explaining the "confusion" present in Supreme Court school desegregation precedent).
154. See Kevin Brown, Termination of Public School Desegregation: Determination of Unitary Status Based on the Elimination of Invidious Value Inculcation, 58 GEO. WASH. L. REV. 1105, 1109 (1990) (noting that "[o]ne of the intractable problems of the Supreme Court's jurisprudence in the area of de jure segregation has been its inability to articulate a coherent theory of the constitutional harm resulting from de jure segregation of public schools that justifies desegregation as the principal means to eliminate the harm"); Peter M. Shane, School Desegregation Remedies and the Fair Governance of Schools, 132 U. PA. L. REV. 1041, 1044 (1984) (describing the Supreme Court school desegregation cases as "puzzling" and ambiguous); Mark G. Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 72 LAW & CONTEMP. PROBS. 56, 87 (Autumn 1978) (explaining the "confusion" present in Supreme Court school desegregation precedent).
155. See Kevin Brown, Termination of Public School Desegregation: Determination of Unitary Status Based on the Elimination of Invidious Value Inculcation, 58 GEO. WASH. L. REV. 1105, 1109 (1990) (noting that "[o]ne of the intractable problems of the Supreme Court's jurisprudence in the area of de jure segregation has been its inability to articulate a coherent theory of the constitutional harm resulting from de jure segregation of public schools that justifies desegregation as the principal means to eliminate the harm"); Peter M. Shane, School Desegregation Remedies and the Fair Governance of Schools, 132 U. PA. L. REV. 1041, 1044 (1984) (describing the Supreme Court school desegregation cases as "puzzling" and ambiguous); Mark G. Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 72 LAW & CONTEMP. PROBS. 56, 87 (Autumn 1978) (explaining the "confusion" present in Supreme Court school desegregation precedent).
156. Epstein, supra note 111, at 1108.
157. Id. at 1104.
158. See id. at 1101, 1117.
159. See id. at 1111-13 (criticizing the application and appropriateness of the remedial standard of restoring the victims to the position they would have occupied but for the violation); id. at 1113-16 (noting the mismatch between the victims and wrongdoers and the beneficiaries of the remedy and those bearing the burden of the remedy).
160. Id. at 1108. Continuing, he argues that "it is high time to call a halt to costly and unproductive judicial efforts to rectify remote injustices. Those efforts have failed by any measure that one could bring to bear on them. The time has come to focus solely on the future and to curb the remedial exuberance of the federal courts." Id. He ends with even stronger language: "Forty-one years after Brown the Supreme Court should pull the plug on desegregation litigation and seek to do the best it can for present students. Some decisive measures should be taken to dampen the finger-pointing and harm-creation that inevitably arise once remedial action has been permitted on so intrusive a level .... It is time to ditch the courts in the desegregation cases and get on with the future." Id. at 1118-20.
161. See id. at 1115 (arguing that "the Court's position does not bring this lawsuit to an end: it only sends it back for yet another round of litigation below, where once again the wrong ends will be pursued by the wrong techniques").
162. Gewirtz, supra note 36, at 591. Professor Gewirtz further explains that "(u)nder Rights Maximizing, an incompletely effective remedy is acceptable only if a more effective remedy for the victims is impossible to achieve." Id. at 592.
163. See Jenkins III, 515 U.S. at 71; Freeman v. Pitts, 503 U.S. 467, 492 (1992); Board of Educ. v. Dowell, 498 U.S. 237, 250 (1991).
164. See supra note 65.
165. See Freeman, 503 U.S. at 492-93; supra note 110 and accompanying text. Further, the Court in Freeman allowed courts the discretion to award partial unitary status, rather than making the obligation to award partial unitary status mandatory, a more pro-defendant standard. See 503 U.S. at 491; Levine, supra note 123, at 616-17 n. 229.
166. See Gewirtz, supra note 36, at 591.
167. Id.
168. Jenkins III, 515 U.S. at 131; Freeman, 503 U.S. at 489-90; Board of Educ. v. Dowell, 498 U.S. 237, 248 (1991).
169. Jenkins III, 515 U.S. at 131; Freeman, 503 U.S. at 489-90; Board of Educ. v. Dowell, 498 U.S. 237, 248 (1991).
170. Dowell, 498 U.S. at 244; supra notes 74-75 and accompanying text.
171. Freeman, 503 U. S .at 476-77; supra notes 93-94 and accompanying text.
172. Jenkins III, 515 U.S. at 102; supra notes 118-19 and accompanying text.
173. Dowell, 498 U.S. at 638 n.2; supra note 94.
174. Freeman, 503 U.S. at 491, 498; supra notes 98-105 and accompanying text.
175. Jenkins III, 515 U.S. at 102; supra notes 115-16 and accompanying text.
176. See supra notes 117-18 and accompanying text.
177. See generally Michael E. Solimine, The Quiet Revolution in Personal Jurisdiction, 73 TUL. L. REV. 1, 44 (1998) (noting that for personal jurisdiction, "the malleable nature of the minimum contacts inquiry, coupled with the paucity of Supreme Court review, creates an environment for lower courts to have relatively free reign to apply personal jurisdiction doctrine").
178. See Pitts v. Freeman, 887 F.2d 1438, 1444 (11th Cir. 1989), rev'd, 503 U.S. 467 (1992); Dowell v. Board of Educ., 677 F. Supp. 1503, 1525 (W.D. Okla. 1987), rev'd, 890 F.2d 1483 (10th Cir. 1989), rev'd, 498 U.S. 237 (1991).
179. See Mills v. Freeman, 942 F. Supp. 1449, 1464 (N.D. Ga. 1996), aff'd, 118 F.3d 727 (11th Cir. 1997); Dowell v. Board of Educ., 778 F. Supp. 1144, 1196 (W.D. Okla. 1991), aff'd, 8 F.3d 1501 (10th Cir. 1993). For a description of the way the district courts in Dowell and Freeman rejected evidence once accepted as proof of discrimination or of its effects, see Hansen, supra note 16, at 867-68.
180. Jenkins v. Missouri, 959 F. Supp. 1151, 1169 (W.D. Mo.), aff'd, 122 F.3d 588 (8th Cir. 1997). The school district still failed, however, to achieve unitary status in three years. See Jenkins v. Missouri, 216 F.3d 720, 727 (8th Cir. 2000) (en banc) (reversing the district court's sua sponte declaration of unitary status and dismissal of the case); see also Parker, supra note 25, at 504-05 (detailing the barriers to successful desegregation in Kansas City, Missouri).
181. See Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 1997); Mills v. Freeman, 118 F.3d 727 (11th Cir. 1997); Dowell v. Board of Educ., 8 F.3d 1501 (10th Cir. 1993).
182. See supra note 13.
183. See. e.g., Kevin Brown, The Implications of the Equal Protection Clause for the Mandatory Integration of Public School Students, 29 CONN. L. REV. 999, 1000 (1997) (arguing that after Dowell, Freeman, and Jenkins III, "federal courts are increasingly withdrawing from their involvement in the desegregation of public schools and thereby closing an epic chapter in American legal history"); Douglas, supra note 14, at 1716 (describing courts as "weary from decades of school supervision"); Hansen, supra note 16, at 867 (arguing that the "ostensible focus on causation . . . reflects the unwillingness of the courts to find causation in situations where they previously would have found it"); Joondeph, supra note 14, at 166 (noting that "[m]any district courts have understood the Court's implicit message, citing the Court's recent opinions in declaring formerly de jure school districts 'unitary' and releasing them from judicial supervision"). For an example of lower court exhaustion, see Gaines v. Dougherty County Bd. of Educ., 775 F.2d 1565, 1566 (11th Cir. 1985) (per curiam) (expressing the "hope[] [that] the end of a twenty-three-year saga" of the school desegregation case is "nearing").
184. See, e.g., cases cited supra at notes 4-11.
185. See generally infra Section II.
186. See generally id. But most school districts have not even sought dismissal. See id.
187. See infra notes 325-30 and accompanying text.
188. See Peter Baker, 40 Years Later, 9 Are Welcomed; Little Rock Marks Civil Rights Milestone, WASH. POST, Sept. 26, 1997, at A1.
189. See ANTHONY LUKAS, COMMON GROUND 255 (1985).
190. The obvious example is Malcolm X: "So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out. I can't go along with that." Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 764 (quoting MALCOLM X, BY ANY MEANS NECESSARY: SPEECHES, INTERVIEWS AND A LETTER 17 (George Breitman ed., 1970)). Another example is Stokely Carmichael, who argued that integration "has been based on complete acceptance of the fact that in order to have a decent . . . education, blacks must. . . send their children to a white school. This reinforces, among both black and white, the idea that 'white' is automatically better and 'black' is by definition inferior." Stokely Carmichael, What We Want, THE NEW YORK REVIEW OF BOOKS (1966), reprinted in THE AGE OF PROTEST 132 (Walt Anderson, ed., 1969) (quoted in Charles L. Zelden, From Rights to Resources: The Southern Federal District Courts and the Transformation of Civil Rights in Education, 1968-74, 32 AKRON L. REV. 471, 475-76 (1999)). But even more mainstream African-Americans quickly challenged the necessity of integration, which in many communities meant the loss of the black high school (often the center of the community) and of black teachers and principals See DAVISON M. DOUGLAS, READING, WRITING AND RACE: THE DESEGREGATION OF THE CHARLOTTE SCHOOLS, 89-99, 196-97 (1995).
191. The obvious example is Malcolm X: "So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out. I can't go along with that." Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 764 (quoting MALCOLM X, BY ANY MEANS NECESSARY: SPEECHES, INTERVIEWS AND A LETTER 17 (George Breitman ed., 1970)). Another example is Stokely Carmichael, who argued that integration "has been based on complete acceptance of the fact that in order to have a decent . . . education, blacks must. . . send their children to a white school. This reinforces, among both black and white, the idea that 'white' is automatically better and 'black' is by definition inferior." Stokely Carmichael, What We Want, THE NEW YORK REVIEW OF BOOKS (1966), reprinted in THE AGE OF PROTEST 132 (Walt Anderson, ed., 1969) (quoted in Charles L. Zelden, From Rights to Resources: The Southern Federal District Courts and the Transformation of Civil Rights in Education, 1968-74, 32 AKRON L. REV. 471, 475-76 (1999)). But even more mainstream African-Americans quickly challenged the necessity of integration, which in many communities meant the loss of the black high school (often the center of the community) and of black teachers and principals See DAVISON M. DOUGLAS, READING, WRITING AND RACE: THE DESEGREGATION OF THE CHARLOTTE SCHOOLS, 89-99, 196-97 (1995).
192. The obvious example is Malcolm X: "So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out. I can't go along with that." Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 764 (quoting MALCOLM X, BY ANY MEANS NECESSARY: SPEECHES, INTERVIEWS AND A LETTER 17 (George Breitman ed., 1970)). Another example is Stokely Carmichael, who argued that integration "has been based on complete acceptance of the fact that in order to have a decent . . . education, blacks must. . . send their children to a white school. This reinforces, among both black and white, the idea that 'white' is automatically better and 'black' is by definition inferior." Stokely Carmichael, What We Want, THE NEW YORK REVIEW OF BOOKS (1966), reprinted in THE AGE OF PROTEST 132 (Walt Anderson, ed., 1969) (quoted in Charles L. Zelden, From Rights to Resources: The Southern Federal District Courts and the Transformation of Civil Rights in Education, 1968-74, 32 AKRON L. REV. 471, 475-76 (1999)). But even more mainstream African-Americans quickly challenged the necessity of integration, which in many communities meant the loss of the black high school (often the center of the community) and of black teachers and principals See DAVISON M. DOUGLAS, READING, WRITING AND RACE: THE DESEGREGATION OF THE CHARLOTTE SCHOOLS, 89-99, 196-97 (1995).
193. The obvious example is Malcolm X: "So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out. I can't go along with that." Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 764 (quoting MALCOLM X, BY ANY MEANS NECESSARY: SPEECHES, INTERVIEWS AND A LETTER 17 (George Breitman ed., 1970)). Another example is Stokely Carmichael, who argued that integration "has been based on complete acceptance of the fact that in order to have a decent . . . education, blacks must. . . send their children to a white school. This reinforces, among both black and white, the idea that 'white' is automatically better and 'black' is by definition inferior." Stokely Carmichael, What We Want, THE NEW YORK REVIEW OF BOOKS (1966), reprinted in THE AGE OF PROTEST 132 (Walt Anderson, ed., 1969) (quoted in Charles L. Zelden, From Rights to Resources: The Southern Federal District Courts and the Transformation of Civil Rights in Education, 1968-74, 32 AKRON L. REV. 471, 475-76 (1999)). But even more mainstream African-Americans quickly challenged the necessity of integration, which in many communities meant the loss of the black high school (often the center of the community) and of black teachers and principals See DAVISON M. DOUGLAS, READING, WRITING AND RACE: THE DESEGREGATION OF THE CHARLOTTE SCHOOLS, 89-99, 196-97 (1995).
194. The obvious example is Malcolm X: "So, what the integrationists, in my opinion, are saying, when they say that whites and blacks must go to school together, is that the whites are so much superior that just their presence in a black classroom balances it out. I can't go along with that." Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 764 (quoting MALCOLM X, BY ANY MEANS NECESSARY: SPEECHES, INTERVIEWS AND A LETTER 17 (George Breitman ed., 1970)). Another example is Stokely Carmichael, who argued that integration "has been based on complete acceptance of the fact that in order to have a decent . . . education, blacks must. . . send their children to a white school. This reinforces, among both black and white, the idea that 'white' is automatically better and 'black' is by definition inferior." Stokely Carmichael, What We Want, THE NEW YORK REVIEW OF BOOKS (1966), reprinted in THE AGE OF PROTEST 132 (Walt Anderson, ed., 1969) (quoted in Charles L. Zelden, From Rights to Resources: The Southern Federal District Courts and the Transformation of Civil Rights in Education, 1968-74, 32 AKRON L. REV. 471, 475-76 (1999)). But even more mainstream African-Americans quickly challenged the necessity of integration, which in many communities meant the loss of the black high school (often the center of the community) and of black teachers and principals See DAVISON M. DOUGLAS, READING, WRITING AND RACE: THE DESEGREGATION OF THE CHARLOTTE SCHOOLS, 89-99, 196-97 (1995).
195. See Steven A. Holmes, At NAACP, Talk of a Shift on Integration, N.Y. TIMES, June 23, 1997, at A1 [hereinafter Holmes, Talk of a Shift]. See generally Steven A. Holmes, Look Who's Saying Separate Is Equal, N.Y. TIMES, Oct. 1, 1995, § 4 (Magazine) at 1. The NAACP's 1997 debate about the value of school desegregation followed a similar debate in 1991. See Peter Schmidt, N.A.A.C.P. Board Stands Behind School Desegregation, EDUC. WK., Sept. 4, 1991, at 5.
196. See Steven A. Holmes, At NAACP, Talk of a Shift on Integration, N.Y. TIMES, June 23, 1997, at A1 [hereinafter Holmes, Talk of a Shift]. See generally Steven A. Holmes, Look Who's Saying Separate Is Equal, N.Y. TIMES, Oct. 1, 1995, § 4 (Magazine) at 1. The NAACP's 1997 debate about the value of school desegregation followed a similar debate in 1991. See Peter Schmidt, N.A.A.C.P. Board Stands Behind School Desegregation, EDUC. WK., Sept. 4, 1991, at 5.
197. See Steven A. Holmes, At NAACP, Talk of a Shift on Integration, N.Y. TIMES, June 23, 1997, at A1 [hereinafter Holmes, Talk of a Shift]. See generally Steven A. Holmes, Look Who's Saying Separate Is Equal, N.Y. TIMES, Oct. 1, 1995, § 4 (Magazine) at 1. The NAACP's 1997 debate about the value of school desegregation followed a similar debate in 1991. See Peter Schmidt, N.A.A.C.P. Board Stands Behind School Desegregation, EDUC. WK., Sept. 4, 1991, at 5.
198. See Steven A. Holmes, At NAACP, Talk of a Shift on Integration, N.Y. TIMES, June 23, 1997, at A1 [hereinafter Holmes, Talk of a Shift]. See generally Steven A. Holmes, Look Who's Saying Separate Is Equal, N.Y. TIMES, Oct. 1, 1995, § 4 (Magazine) at 1. The NAACP's 1997 debate about the value of school desegregation followed a similar debate in 1991. See Peter Schmidt, N.A.A.C.P. Board Stands Behind School Desegregation, EDUC. WK., Sept. 4, 1991, at 5.
199. On the day of the New York Times article, see Holmes, Talk of a Shift, supra note 160, the NAACP issued a press release stating that the NAACP "still support[s] integrative policies while at the same time fighting to guarantee educational equality for students within our existing public schools." See NAACP Responds to New York Times Article (June 23, 1997) (press release on file with author).
200. On the day of the New York Times article, see Holmes, Talk of a Shift, supra note 160, the NAACP issued a press release stating that the NAACP "still support[s] integrative policies while at the same time fighting to guarantee educational equality for students within our existing public schools." See NAACP Responds to New York Times Article (June 23, 1997) (press release on file with author).
201. On the day of the New York Times article, see Holmes, Talk of a Shift, supra note 160, the NAACP issued a press release stating that the NAACP "still support[s] integrative policies while at the same time fighting to guarantee educational equality for students within our existing public schools." See NAACP Responds to New York Times Article (June 23, 1997) (press release on file with author).
202. For example, in Yonkers, New York, and Bergen County, New Jersey, the national NAACP removed the local NAACP presidents from office after the presidents stated their opposition to the remedies imposed in their respective local school desegregation lawsuits. See Caroline Hendne, NAACP Wrestles with Evolving Views on Desegregation, EDUC. WK., Aug. 6, 1997, at 12.
203. See ORFIELD & EATON, supra note 14, at 343.
204. Such schools "take into account the social environment and culture of African-Americans." Kevin Brown, After the Desegregation Era: The Legal Dilemma Posed by Race and Education, 37 ST. LOUIS U. L.J. 897, 899 (1993). For an argument on the need for such schools, see generally Brown, supra; Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 IOWA L. REV. 813 (1993); Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 YALE L.J. 1285 (1992); see also Mark Walsh, Black Private Academies Are Held Up as Filling Void Seen as 'Response to Desperate Situation, ' EDUC. WK., Mar. 13, 1991, at 1. For a forthcoming article examining the constitutionality of these schools, see Wendy Parker, The Color of Choice: Race and Charter Schools, 75 TUL. L. REV. (forthcoming 2001).
205. Such schools "take into account the social environment and culture of African-Americans." Kevin Brown, After the Desegregation Era: The Legal Dilemma Posed by Race and Education, 37 ST. LOUIS U. L.J. 897, 899 (1993). For an argument on the need for such schools, see generally Brown, supra; Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 IOWA L. REV. 813 (1993); Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 YALE L.J. 1285 (1992); see also Mark Walsh, Black Private Academies Are Held Up as Filling Void Seen as 'Response to Desperate Situation, ' EDUC. WK., Mar. 13, 1991, at 1. For a forthcoming article examining the constitutionality of these schools, see Wendy Parker, The Color of Choice: Race and Charter Schools, 75 TUL. L. REV. (forthcoming 2001).
206. Such schools "take into account the social environment and culture of African-Americans." Kevin Brown, After the Desegregation Era: The Legal Dilemma Posed by Race and Education, 37 ST. LOUIS U. L.J. 897, 899 (1993). For an argument on the need for such schools, see generally Brown, supra; Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 IOWA L. REV. 813 (1993); Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 YALE L.J. 1285 (1992); see also Mark Walsh, Black Private Academies Are Held Up as Filling Void Seen as 'Response to Desperate Situation, ' EDUC. WK., Mar. 13, 1991, at 1. For a forthcoming article examining the constitutionality of these schools, see Wendy Parker, The Color of Choice: Race and Charter Schools, 75 TUL. L. REV. (forthcoming 2001).
207. Such schools "take into account the social environment and culture of African-Americans." Kevin Brown, After the Desegregation Era: The Legal Dilemma Posed by Race and Education, 37 ST. LOUIS U. L.J. 897, 899 (1993). For an argument on the need for such schools, see generally Brown, supra; Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 IOWA L. REV. 813 (1993); Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 YALE L.J. 1285 (1992); see also Mark Walsh, Black Private Academies Are Held Up as Filling Void Seen as 'Response to Desperate Situation, ' EDUC. WK., Mar. 13, 1991, at 1. For a forthcoming article examining the constitutionality of these schools, see Wendy Parker, The Color of Choice: Race and Charter Schools, 75 TUL. L. REV. (forthcoming 2001).
208. Such schools "take into account the social environment and culture of African-Americans." Kevin Brown, After the Desegregation Era: The Legal Dilemma Posed by Race and Education, 37 ST. LOUIS U. L.J. 897, 899 (1993). For an argument on the need for such schools, see generally Brown, supra; Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 IOWA L. REV. 813 (1993); Sonia R. Jarvis, Brown and the Afrocentric Curriculum, 101 YALE L.J. 1285 (1992); see also Mark Walsh, Black Private Academies Are Held Up as Filling Void Seen as 'Response to Desperate Situation, ' EDUC. WK., Mar. 13, 1991, at 1. For a forthcoming article examining the constitutionality of these schools, see Wendy Parker, The Color of Choice: Race and Charter Schools, 75 TUL. L. REV. (forthcoming 2001).
209. See N.C. GEN. STAT. § 115C-238.29A-F (1998).
210. See N.C. GEN. STAT. § 115C-238.29F(g)(5) (1998) (requiring that the student population of a charter school "shall reasonably reflect the racial and ethnic composition of the general population residing within the local school administrative unit").
211. See Lynn Schnailberg, Predominately Black Charters Focus of Debate in N.C., EDUC. WK., Aug. 5, 1998, at 22 (reporting that 12 of the 33 charter schools were 85% or more African-American); see also OFFICE OF EDUCATIONAL RESEARCH AND IMPROVEMENT, U.S. DEPARTMENT OF EDUCATION, THE STATE OF CHARTER SCHOOLS 2000: NATIONAL STUDY OF CHARTER SCHOOLS FOURTH-YEAR REPORT 32 (2000) (identifying 14 states with charter schools that enroll more minority school children than public schools).
212. See Lynn Schnailberg, Predominately Black Charters Focus of Debate in N.C., EDUC. WK., Aug. 5, 1998, at 22 (reporting that 12 of the 33 charter schools were 85% or more African-American); see also OFFICE OF EDUCATIONAL RESEARCH AND IMPROVEMENT, U.S. DEPARTMENT OF EDUCATION, THE STATE OF CHARTER SCHOOLS 2000: NATIONAL STUDY OF CHARTER SCHOOLS FOURTH-YEAR REPORT 32 (2000) (identifying 14 states with charter schools that enroll more minority school children than public schools).
213. Professor Kevin Brown, for example, has persuasively argued that the Supreme Court's approach to school desegregation from the beginning was premised on the inferiority of African-American children. See Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 CORNELL L. REV. 1, 53 (1992) (arguing that the Supreme Court "is preceding from an ideological framework that accepts the notion that segregation retarded the cognitive psychological and emotional development of only African-Americans"); see also Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Jenkins III) (Thomas, J., concurring) (commenting that "[i]t never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior"); DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 112-13 (1987) (suggesting a better desegregation policy, one "not clogged with integrationist dreams" would have been to desegregate school funding and control instead of desegregating students); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1405 (1993) (contending that maintenance of historically black colleges is an appropriate measure for the rectification of unequal circumstances in light of the failure of the integration policies of the Supreme Court).
214. Professor Kevin Brown, for example, has persuasively argued that the Supreme Court's approach to school desegregation from the beginning was premised on the inferiority of African-American children. See Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 CORNELL L. REV. 1, 53 (1992) (arguing that the Supreme Court "is preceding from an ideological framework that accepts the notion that segregation retarded the cognitive psychological and emotional development of only African-Americans"); see also Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Jenkins III) (Thomas, J., concurring) (commenting that "[i]t never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior"); DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 112-13 (1987) (suggesting a better desegregation policy, one "not clogged with integrationist dreams" would have been to desegregate school funding and control instead of desegregating students); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1405 (1993) (contending that maintenance of historically black colleges is an appropriate measure for the rectification of unequal circumstances in light of the failure of the integration policies of the Supreme Court).
215. Professor Kevin Brown, for example, has persuasively argued that the Supreme Court's approach to school desegregation from the beginning was premised on the inferiority of African-American children. See Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 CORNELL L. REV. 1, 53 (1992) (arguing that the Supreme Court "is preceding from an ideological framework that accepts the notion that segregation retarded the cognitive psychological and emotional development of only African-Americans"); see also Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Jenkins III) (Thomas, J., concurring) (commenting that "[i]t never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior"); DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 112-13 (1987) (suggesting a better desegregation policy, one "not clogged with integrationist dreams" would have been to desegregate school funding and control instead of desegregating students); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1405 (1993) (contending that maintenance of historically black colleges is an appropriate measure for the rectification of unequal circumstances in light of the failure of the integration policies of the Supreme Court).
216. Professor Kevin Brown, for example, has persuasively argued that the Supreme Court's approach to school desegregation from the beginning was premised on the inferiority of African-American children. See Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 CORNELL L. REV. 1, 53 (1992) (arguing that the Supreme Court "is preceding from an ideological framework that accepts the notion that segregation retarded the cognitive psychological and emotional development of only African-Americans"); see also Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Jenkins III) (Thomas, J., concurring) (commenting that "[i]t never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior"); DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 112-13 (1987) (suggesting a better desegregation policy, one "not clogged with integrationist dreams" would have been to desegregate school funding and control instead of desegregating students); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1405 (1993) (contending that maintenance of historically black colleges is an appropriate measure for the rectification of unequal circumstances in light of the failure of the integration policies of the Supreme Court).
217. See, e.g., Orfield & Thronson, supra note 14, at 785 (arguing that "[o]ne of the least known facts of the Reagan-Bush era is that both minority and white support for busing increased significantly during twelve years of conservative critiques of the plans"); Cheryl Gamble, Seattle Board to Vote on New Student-Assignment Proposal, EDUC. WK., Oct. 9, 1996, at 8; Kerry A. White, Protestors Derail Minneapolis Board Meeting, EDUC. WK., June 3, 1998, at 3. An educator who is frequently an expert witness for school districts in desegregation cases, Christine Rossell, however, reviewed opinion data and concluded "some, if not most, blacks perceive busing as not in their self-interest." Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 WM. & MARY L. REV. 613, 655 (1995).
218. See, e.g., Orfield & Thronson, supra note 14, at 785 (arguing that "[o]ne of the least known facts of the Reagan-Bush era is that both minority and white support for busing increased significantly during twelve years of conservative critiques of the plans"); Cheryl Gamble, Seattle Board to Vote on New Student-Assignment Proposal, EDUC. WK., Oct. 9, 1996, at 8; Kerry A. White, Protestors Derail Minneapolis Board Meeting, EDUC. WK., June 3, 1998, at 3. An educator who is frequently an expert witness for school districts in desegregation cases, Christine Rossell, however, reviewed opinion data and concluded "some, if not most, blacks perceive busing as not in their self-interest." Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 WM. & MARY L. REV. 613, 655 (1995).
219. See, e.g., Orfield & Thronson, supra note 14, at 785 (arguing that "[o]ne of the least known facts of the Reagan-Bush era is that both minority and white support for busing increased significantly during twelve years of conservative critiques of the plans"); Cheryl Gamble, Seattle Board to Vote on New Student-Assignment Proposal, EDUC. WK., Oct. 9, 1996, at 8; Kerry A. White, Protestors Derail Minneapolis Board Meeting, EDUC. WK., June 3, 1998, at 3. An educator who is frequently an expert witness for school districts in desegregation cases, Christine Rossell, however, reviewed opinion data and concluded "some, if not most, blacks perceive busing as not in their self-interest." Christine H. Rossell, The Convergence of Black and White Attitudes on School Desegregation Issues During the Four Decade Evolution of the Plans, 36 WM. & MARY L. REV. 613, 655 (1995).
220. See generally Note, The Constitutionality of Race-Conscious Admissions Programs in Public Elementary and Secondary Schools, 112 HARV. L. REV. 940 (1999) (arguing in favor of the constitutionality of race-conscious student assignment policies in public elementary and secondary schools); Caroline Hendrie, New Magnet School Policies Sidestep an Old Issue: Race, EDUC WK., June 10, 1998, at 10 (reviewing recent challenges to race-conscious magnet admissions practices).
221. See generally Note, The Constitutionality of Race-Conscious Admissions Programs in Public Elementary and Secondary Schools, 112 HARV. L. REV. 940 (1999) (arguing in favor of the constitutionality of race-conscious student assignment policies in public elementary and secondary schools); Caroline Hendrie, New Magnet School Policies Sidestep an Old Issue: Race, EDUC WK., June 10, 1998, at 10 (reviewing recent challenges to race-conscious magnet admissions practices).
222. See, e.g., Caroline Hendrie, Without Court Orders, Schools Ponder How to Pursue Diversity, EDUC. WK., April 30, 1997, at 1 [hereinafter Hendrie, Without Court Orders] (reporting that a group of both white and black parents challenged a controlled-choice system in Troup County, Georgia); see also Caroline Hendrie, Houston Reaches for Diversity Without Quotas, EDUC. WK., June 10, 1998, at 11 [hereinafter Hendrie, Houston Reaches for Diversity] (noting that white and Asian-American families challenge admission policies for magnet schools in Houston).
223. See, e.g., Caroline Hendrie, Without Court Orders, Schools Ponder How to Pursue Diversity, EDUC. WK., April 30, 1997, at 1 [hereinafter Hendrie, Without Court Orders] (reporting that a group of both white and black parents challenged a controlled-choice system in Troup County, Georgia); see also Caroline Hendrie, Houston Reaches for Diversity Without Quotas, EDUC. WK., June 10, 1998, at 11 [hereinafter Hendrie, Houston Reaches for Diversity] (noting that white and Asian-American families challenge admission policies for magnet schools in Houston).
224. See, e.g., Caroline Hendrie, Without Court Orders, Schools Ponder How to Pursue Diversity, EDUC. WK., April 30, 1997, at 1 [hereinafter Hendrie, Without Court Orders] (reporting that a group of both white and black parents challenged a controlled-choice system in Troup County, Georgia); see also Caroline Hendrie, Houston Reaches for Diversity Without Quotas, EDUC. WK., June 10, 1998, at 11 [hereinafter Hendrie, Houston Reaches for Diversity] (noting that white and Asian-American families challenge admission policies for magnet schools in Houston).
225. See, e.g., Caroline Hendrie, Without Court Orders, Schools Ponder How to Pursue Diversity, EDUC. WK., April 30, 1997, at 1 [hereinafter Hendrie, Without Court Orders] (reporting that a group of both white and black parents challenged a controlled-choice system in Troup County, Georgia); see also Caroline Hendrie, Houston Reaches for Diversity Without Quotas, EDUC. WK., June 10, 1998, at 11 [hereinafter Hendrie, Houston Reaches for Diversity] (noting that white and Asian-American families challenge admission policies for magnet schools in Houston).
226. To date, at least one group of parents has failed in its quest to change race-conscious admissions programs. The basis of the challenge (that the school district was already unitary) was legally weak See United States v. Georgia, Meriwether County, 171 F.3d 1344, 1347 (11th Cir. 1999) (reversing district court's grant of unitary status for Troup County, Georgia); Hendrie, Without Court Orders, supra note 171, at 1 (reporting that a group of both white and black parents challenged a controlled-choice system in Troup County, Georgia, on the grounds that the school district was already unitary); see also supra notes 53-54 and accompanying text (explaining why claims that school districts were dismissed in earlier, ambiguous orders are weak in light of current Supreme Court precedent).
227. See Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999) (per curiam) (affirming preliminary injunction barring a "weighted" lottery to produce integration).
228. See Wessmann v. Gittens, 160 F.3d 790, 808-09 (1st Cir. 1998) (holding unconstitutional admission policies to Boston's examination schools that discriminated against a white student).
229. See Hendrie, supra note 170, at 10 (reporting that Broward County changed its magnet school admission policies after the school district was declared unitary to avert a court challenge).
230. See Caroline Hendrie, Buffalo Seeks a Smooth Transition After Release from Court Oversight, EDUC. WK., June 10, 1998, at 10 (noting that Buffalo, already declared a unitary school district, changed its admission policies for its gifted and talented schools after a lawsuit was filed).
231. See Hendrie, Houston Reaches for Diversity, supra note 171, at 11 (reporting changes to magnet school admissions in Houston made in response to a lawsuit).
232. See Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir. 1999) (permitting white student's transfer to a magnet school), cert. denied, 120 S. Ct. 1420 (2000).
233. See Peter Waldman, School-Desegregation Accord Stresses Pupils' Socioeconomic Factors Over Race, WALL ST. J., Feb. 18, 1999, at B13 (detailing a settlement reached in San Francisco's pending school desegregation lawsuit concerning a challenge by Chinese-Americans to caps on enrollment and priorities in lottery admissions).
234. See Caroline Hendrie, Court Ends Oversight of Desegregation in Georgia District, EDUC. WK., July 10, 1996, at 9 (reporting that Prince George's County, Maryland decided to disobey court-imposed racial quotas after African-American parents complained that 500 white enrollment slots went unfilled as 4,000 African-American students remained on waiting lists); Kerry A. White, Suit Challenges Integration Plan in Louisville, EDUC. WK., May 6, 1998, at 3 (noting that 800 African-American applicants were rejected from a magnet program over three years even though seats reserved for whites went empty); see also Hendrie, supra note 170, at 10 (reporting that a black parent in New Orleans complained to the Department of Education that the academic-ability tests used as part of the entrance requirements for the district's magnet programs penalized blacks).
235. See Caroline Hendrie, Court Ends Oversight of Desegregation in Georgia District, EDUC. WK., July 10, 1996, at 9 (reporting that Prince George's County, Maryland decided to disobey court-imposed racial quotas after African-American parents complained that 500 white enrollment slots went unfilled as 4,000 African-American students remained on waiting lists); Kerry A. White, Suit Challenges Integration Plan in Louisville, EDUC. WK., May 6, 1998, at 3 (noting that 800 African-American applicants were rejected from a magnet program over three years even though seats reserved for whites went empty); see also Hendrie, supra note 170, at 10 (reporting that a black parent in New Orleans complained to the Department of Education that the academic-ability tests used as part of the entrance requirements for the district's magnet programs penalized blacks).
236. See Caroline Hendrie, Court Ends Oversight of Desegregation in Georgia District, EDUC. WK., July 10, 1996, at 9 (reporting that Prince George's County, Maryland decided to disobey court-imposed racial quotas after African-American parents complained that 500 white enrollment slots went unfilled as 4,000 African-American students remained on waiting lists); Kerry A. White, Suit Challenges Integration Plan in Louisville, EDUC. WK., May 6, 1998, at 3 (noting that 800 African-American applicants were rejected from a magnet program over three years even though seats reserved for whites went empty); see also Hendrie, supra note 170, at 10 (reporting that a black parent in New Orleans complained to the Department of Education that the academic-ability tests used as part of the entrance requirements for the district's magnet programs penalized blacks).
237. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 29-31 (1971) (approving the use of bussing); Capacchione v. Charlotte-Mecklenburg Bd. of Educ., 57 F. Supp. 2d 228 (W.D.N.C. 1999) (declaring unitary status and ruling race conscious magnet admissions policies unconstitutional); DOUGLAS, supra note 159, at 254 (concluding that "both political protest and judicial action" produced successful desegregation in Charlotte); BERNARD SCHWARTZ, SWANN'S WAY: THE SCHOOL BUSING CASE AND THE SUPREME COURT 192-93 (1986) (detailing why desegregation worked for Charlotte-Mecklenburg schools);
238. Davison M. Douglas, The Quest for Freedom in the Post-Brown South: Desegregation and White Self-interest, 70 CHI-KENT L. REV. 689, 690-91, 694 (1994) (noting that in 1957, Charlotte was one of the first southern cities to desegregate its schools, and that by "the late 1960s, Charlotte operated one of the most thoroughly integrated urban school systems").
239. A majority-to-minority ("M-to-M") transfer program permits students who are attending a school in which their race is in the majority to transfer to a school in which their race would be in the minority.
240. See District Drops Choice Policy, EDUC. WK., Feb. 10, 1999, at 4 But see Comfort v. Lynn Sch. Comm., 100 F. Supp. 2d 57, 69 (D. Mass. 2000) (refusing to issue a preliminary injunction to prohibit a race conscious transfer program).
241. See Equal Open Enrollment v. Board of Educ., 937 F. Supp. 700, 709-10 (N.D. Ohio 1996).
242. See Brewer v. West Irondequoit Cent. Sch. Dist., 32 F. Supp. 2d 619, 635 (W.D.N.Y. 1999).
243. See Kerry A. White, Wis. Settlement Reached in Open-Enrollment Dispute, EDUC. WK., Feb. 24, 1999, at 4 (detailing settlement).
244. These challenges have led Professor Jeffrey Rosen to predict that "the hope of integrated public schools may soon be a distant memory." See Rosen, supra note 13, at 5. I share his concern that the successful challenges to race-conscious student assignment policies will limit the ability of courts to order remedies that effectively produce desegregated student bodies. See infra note 320. Even if race-conscious student assignment policies are limited, however, school desegregation cases still provide a potentially effective vehicle to improve the quality of education. See infra note 355 and accompanying text. School desegregation increasingly focuses on educational equity, a trend that began with wide-spread frustration with bussing. In other words, school desegregation for a long time has had little emphasis on desegregating student bodies. See infra notes 305-08 and accompanying text. To this extent, the limit on race-conscious student assignment policies may not have a large impact on current school desegregation litigation for the reason that desegregating student bodies is no longer the focus.
245. See GARY ORFIELD & JOHN T. YUN, RESEGREGATION IN AMERICAN SCHOOLS 15 (1999) (examining the percentage of white students enrolled in a school attended by the average African-American student through a commonly used method called "index of exposure"); see also DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 172 (1995) (looking at "interracial exposure" in school districts with over 10,000 students and finding exposure of African-American to white students to be almost the same in 1989 as it was in 1968); Rossell, supra note 169, at 618 (concluding that "interracial exposure" had decreased in school districts with over 27,250 students). For a detailed explanation of how the index of exposure is calculated, see ARMOR, supra, at 164n.15.
246. See GARY ORFIELD & JOHN T. YUN, RESEGREGATION IN AMERICAN SCHOOLS 15 (1999) (examining the percentage of white students enrolled in a school attended by the average African-American student through a commonly used method called "index of exposure"); see also DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 172 (1995) (looking at "interracial exposure" in school districts with over 10,000 students and finding exposure of African-American to white students to be almost the same in 1989 as it was in 1968); Rossell, supra note 169, at 618 (concluding that "interracial exposure" had decreased in school districts with over 27,250 students). For a detailed explanation of how the index of exposure is calculated, see ARMOR, supra, at 164n.15.
247. See ORFIELD & YUN, supra note 188, at 22, tbl. 16. The four exceptions are Illinois, with an increase in integration of .08%; Indiana, 7.3%; Missouri, 3.6%; and Pennsylvania, 1.1%.
248. See ORFIELD & YUN, supra note 188, at 16. In 1970, the average Latino was in a school with 56% nonwhite students. The average Latino was in a 70% nonwhite school by 1996. See id; see also ARMOR, supra note 188, at 172-73 (concluding that the interracial exposure index has consistently declined for Hispanics since statistics were first complied nationwide in 1968, dropping from 70% in 1968 to 51% by 1989).
249. When discussing the level of integration of the South in this section, I am using the term "South" as most education researchers use the term - to denote the 11 states of the Confederacy (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia).
250. 347 U.S. 483 (1954) (Brown I).
251. See ORFIELD & YUN, supra note 188, at 14.
252. See id.; James S. Liebman, Desegregating Politics. "All-Out" School Desegregation Explained, 90 COLUM. L. REV. 1463, 1466 n.6 (1990).
253. 498 U.S. 237 (1991). This case is discussed supra Section I.B.1.
254. See ORFIELD & YUN, supra note 188, at 13-14. The level was 34.7% in 1996. See id.
255. See id. at 21.
256. See infra Section II. The six states are Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas.
257. See ORFIELD & YUN, supra note 188, at 25. Florida posted the sharpest decline - from 50.6% in 1980 to 38.4% in 1996. See id.
258. See Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 MINN. L. REV. 825, 841 (1996) (finding that "[a]lthough racial attitudes were most negative in the rural and small-town South, those areas achieved much higher levels of desegregation because their districts were likely to include both whites and blacks in the area").
259. See id. (stressing the importance of the South's pattern of "county-wide school districts [that] contain[] enough of the local housing market and large enough white populations to make long-term and comprehensive desegregation much more viable").
260. See Samuel Cohn & Mark Fossett, Why Racial Employment Is Greater in Northern Labor Markets: Regional Differences in White-Black Employment Differentials, 74 SOCIAL FORCES 2,511 (1995).
261. See, e.g., ARMOR, supra note 188, at 176 (reporting that 44 court-ordered, mandatory bussing plans resulted in white loss rates by three to five times that because of demographic processes); ORFIELD & EATON, supra note 14, at 94 (attributing decreasing white enrollment to birth rates, patterns of white suburbanization, and the spread of urban poor areas); Orfield, supra note 200, at 852-53 (noting that Atlanta, which ended its school desegregation suit in 1973, "has had one of the nation's most dramatic declines in white enrollment, followed by a massive departure of the black middle class to a sector of suburbia"); Rossell, supra note 169, at 623-24 (arguing that Northern school districts had higher levels of integration in 1968 than after 25 years of desegregation activity and attributing white flight to desegregation, sunbelt migration, suburban flight, and birthrates); Ryan, supra note 14, at 282-83 (reviewing the literature on the link between white flight and desegregation).
262. See ARMOR, supra note 188, at 190 (reporting that case studies in Savannah and Norfolk show that declining white enrollment ceased after ending mandatory bussing plans); ORFIELD & EATON, supra note 14, at 94 (noting that DeKalb county had the fourth largest decrease among large districts in white enrollment after its school desegregation case ended); Orfield & Thronson, supra note 14, at 761, 770-74 (explaining that for systems dismantling bussing plans or released from court order, "[t]he hoped-for end of white flight and the return of white students have not materialized at all in some systems and have been far below predictions in others").
263. 498 U.S. 237 (1991); see supra Section I.B.1.
264. Thirty-five school districts were the subject of both written, published opinions and docket sheets.
265. The six states responded differently to Brown, but most engaged in active rebellion. Texas engaged in token integration; Florida, some resistance; and Alabama, Georgia, Louisiana, and Mississippi, total resistance. See Davison M. Douglas, The Rhetoric of Moderation: Desegregating the South During the Decade After Brown, 89 Nw. U. L. REV. 92, 94 (1994).
266. Furthermore, school desegregation litigation on a widespread scale first began in southern states, as suits covering scores of school districts were filed between 1969 and 1971 throughout much of the South. If school desegregation litigation was ending - a perception this Article attempts to debunk -then it would likely be found first in the area where it began.
267. School desegregation litigation is most prominent in nine states the six states of the Fifth and Eleventh Circuits (Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas) and the three states covered by the Fourth Circuit (North Carolina, South Carolina, and Virginia). By focusing on the Fifth and Eleventh Circuits, six of the nine states are included, as are the two most populous states (Florida and Texas).
268. Judge Ben F. Cameron dubbed Judge John R. Brown of Texas, Judge Elbert Parr Tuttle of Georgia, Judge Richard T. Rives of Alabama, and Judge John Minor Wisdom of Louisiana "The Four," and the name came to symbolize the Fifth Circuit's strong commitment to civil rights. Armstrong v. Board of Educ., 323 F.2d 333, 353 n.1 (1963) (Cameron, J., dissenting from denial of petition for rehearing en banc). Judge Cameron used the term in criticizing the large role The Four had in shaping critical civil rights decisions and the assignment of judges to the three-judge district courts, of critical importance in civil rights litigation at the time. See id. at 353-59; see also Michael E. Solimine, The Three-Judge District Court in Voting Rights Litigation, 30 U. MICH. J.L. REFORM 79, 110-12 (1996) (describing the "stacking" of three-judge district courts in the early 1960s in the Fifth Circuit). An interesting side note: Judge Cameron apparently asked his son, who joined three African-Americans as plaintiffs in a suit to desegregate the Sewanee Divinity School (of which the judge was a trustee), to identify himself clearly as Ben F. Cameron, Jr. to avoid any confusion. See JACK BASS, UNLIKELY HEROES 232 (1981) (emphasis added). The Fifth Circuit was far from monolithic in its commitment to civil rights. For two cases in which Judge Cameron argued that the South should not enforce the Fourteenth Amendment, see Bowman v. Birmingham Transit Co., 292 F.2d 4 (5th Cir. 1961) (Cameron, J., dissenting) and United States v. Wood, 295 F.2d 788 (5th Cir. 1961) (Cameron, J., dissenting).
269. Judge Ben F. Cameron dubbed Judge John R. Brown of Texas, Judge Elbert Parr Tuttle of Georgia, Judge Richard T. Rives of Alabama, and Judge John Minor Wisdom of Louisiana "The Four," and the name came to symbolize the Fifth Circuit's strong commitment to civil rights. Armstrong v. Board of Educ., 323 F.2d 333, 353 n.1 (1963) (Cameron, J., dissenting from denial of petition for rehearing en banc). Judge Cameron used the term in criticizing the large role The Four had in shaping critical civil rights decisions and the assignment of judges to the three-judge district courts, of critical importance in civil rights litigation at the time. See id. at 353-59; see also Michael E. Solimine, The Three-Judge District Court in Voting Rights Litigation, 30 U. MICH. J.L. REFORM 79, 110-12 (1996) (describing the "stacking" of three-judge district courts in the early 1960s in the Fifth Circuit). An interesting side note: Judge Cameron apparently asked his son, who joined three African-Americans as plaintiffs in a suit to desegregate the Sewanee Divinity School (of which the judge was a trustee), to identify himself clearly as Ben F. Cameron, Jr. to avoid any confusion. See JACK BASS, UNLIKELY HEROES 232 (1981) (emphasis added). The Fifth Circuit was far from monolithic in its commitment to civil rights. For two cases in which Judge Cameron argued that the South should not enforce the Fourteenth Amendment, see Bowman v. Birmingham Transit Co., 292 F.2d 4 (5th Cir. 1961) (Cameron, J., dissenting) and United States v. Wood, 295 F.2d 788 (5th Cir. 1961) (Cameron, J., dissenting).
270. See generally BASS, supra note 210, title page (describing itself as "[t]he dramatic story of the Southern Judges of the Fifth Circuit who translated the Supreme Court's Brown decision into a revolution for equality"); RICHARD KLUGER, SIMPLE JUSTICE (1975) (detailing the role of the Fifth Circuit in enforcing Brown v. Board of Education in the 1960s and 1970s); Frank T. Read, The Bloodless Revolution: The Role of the Fifth Circuit in the Integration of the Deep South, 32 MERCER L. REV. 1149, 1155 (1981) (same). Judge Wisdom is often singled out for his contribution to school desegregation, particularly his opinion in United States v. Jefferson County Board of Education, 372 F.2d 836, 869 (5th Cir. 1966) (holding that "the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration"), aff'd, 380 F.2d 385 (5th Cir. 1967) (en banc), which is sometimes identified as the first "affirmative action" opinion. Judge Wisdom established his rebel status in Louisiana when he joined the Republican party while at Tulane Law School. See MARK WHITMAN, THE IRONY OF DESEGREGATION LAW 89 (1998); see also Alfred W. Blumrosen et al., Vindicating the Promise of Brown, 26 PAC. L.J. 772, 774 (1995) (quoting Judge Wisdom at a panel discussion as reporting that the post office regularly knew to route letters addressed to "Judge Ignorance" to his chambers). Yet, he remained a member of clubs excluding African- Americans and Jews until his death. See Jack Bass, John Minor Wisdom, Appeals Court Judge Who Helped to End Segregation, Dies at 93, N.Y. TIMES, May 16, 1999, at A45. Judge Wisdom explained his membership on the grounds that his fellow members, longtime friends, knew his position and would not change theirs based on his actions. See id.
271. See generally BASS, supra note 210, title page (describing itself as "[t]he dramatic story of the Southern Judges of the Fifth Circuit who translated the Supreme Court's Brown decision into a revolution for equality"); RICHARD KLUGER, SIMPLE JUSTICE (1975) (detailing the role of the Fifth Circuit in enforcing Brown v. Board of Education in the 1960s and 1970s); Frank T. Read, The Bloodless Revolution: The Role of the Fifth Circuit in the Integration of the Deep South, 32 MERCER L. REV. 1149, 1155 (1981) (same). Judge Wisdom is often singled out for his contribution to school desegregation, particularly his opinion in United States v. Jefferson County Board of Education, 372 F.2d 836, 869 (5th Cir. 1966) (holding that "the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration"), aff'd, 380 F.2d 385 (5th Cir. 1967) (en banc), which is sometimes identified as the first "affirmative action" opinion. Judge Wisdom established his rebel status in Louisiana when he joined the Republican party while at Tulane Law School. See MARK WHITMAN, THE IRONY OF DESEGREGATION LAW 89 (1998); see also Alfred W. Blumrosen et al., Vindicating the Promise of Brown, 26 PAC. L.J. 772, 774 (1995) (quoting Judge Wisdom at a panel discussion as reporting that the post office regularly knew to route letters addressed to "Judge Ignorance" to his chambers). Yet, he remained a member of clubs excluding African- Americans and Jews until his death. See Jack Bass, John Minor Wisdom, Appeals Court Judge Who Helped to End Segregation, Dies at 93, N.Y. TIMES, May 16, 1999, at A45. Judge Wisdom explained his membership on the grounds that his fellow members, longtime friends, knew his position and would not change theirs based on his actions. See id.
272. See generally BASS, supra note 210, title page (describing itself as "[t]he dramatic story of the Southern Judges of the Fifth Circuit who translated the Supreme Court's Brown decision into a revolution for equality"); RICHARD KLUGER, SIMPLE JUSTICE (1975) (detailing the role of the Fifth Circuit in enforcing Brown v. Board of Education in the 1960s and 1970s); Frank T. Read, The Bloodless Revolution: The Role of the Fifth Circuit in the Integration of the Deep South, 32 MERCER L. REV. 1149, 1155 (1981) (same). Judge Wisdom is often singled out for his contribution to school desegregation, particularly his opinion in United States v. Jefferson County Board of Education, 372 F.2d 836, 869 (5th Cir. 1966) (holding that "the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration"), aff'd, 380 F.2d 385 (5th Cir. 1967) (en banc), which is sometimes identified as the first "affirmative action" opinion. Judge Wisdom established his rebel status in Louisiana when he joined the Republican party while at Tulane Law School. See MARK WHITMAN, THE IRONY OF DESEGREGATION LAW 89 (1998); see also Alfred W. Blumrosen et al., Vindicating the Promise of Brown, 26 PAC. L.J. 772, 774 (1995) (quoting Judge Wisdom at a panel discussion as reporting that the post office regularly knew to route letters addressed to "Judge Ignorance" to his chambers). Yet, he remained a member of clubs excluding African- Americans and Jews until his death. See Jack Bass, John Minor Wisdom, Appeals Court Judge Who Helped to End Segregation, Dies at 93, N.Y. TIMES, May 16, 1999, at A45. Judge Wisdom explained his membership on the grounds that his fellow members, longtime friends, knew his position and would not change theirs based on his actions. See id.
273. See generally BASS, supra note 210, title page (describing itself as "[t]he dramatic story of the Southern Judges of the Fifth Circuit who translated the Supreme Court's Brown decision into a revolution for equality"); RICHARD KLUGER, SIMPLE JUSTICE (1975) (detailing the role of the Fifth Circuit in enforcing Brown v. Board of Education in the 1960s and 1970s); Frank T. Read, The Bloodless Revolution: The Role of the Fifth Circuit in the Integration of the Deep South, 32 MERCER L. REV. 1149, 1155 (1981) (same). Judge Wisdom is often singled out for his contribution to school desegregation, particularly his opinion in United States v. Jefferson County Board of Education, 372 F.2d 836, 869 (5th Cir. 1966) (holding that "the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration"), aff'd, 380 F.2d 385 (5th Cir. 1967) (en banc), which is sometimes identified as the first "affirmative action" opinion. Judge Wisdom established his rebel status in Louisiana when he joined the Republican party while at Tulane Law School. See MARK WHITMAN, THE IRONY OF DESEGREGATION LAW 89 (1998); see also Alfred W. Blumrosen et al., Vindicating the Promise of Brown, 26 PAC. L.J. 772, 774 (1995) (quoting Judge Wisdom at a panel discussion as reporting that the post office regularly knew to route letters addressed to "Judge Ignorance" to his chambers). Yet, he remained a member of clubs excluding African-Americans and Jews until his death. See Jack Bass, John Minor Wisdom, Appeals Court Judge Who Helped to End Segregation, Dies at 93, N.Y. TIMES, May 16, 1999, at A45. Judge Wisdom explained his membership on the grounds that his fellow members, longtime friends, knew his position and would not change theirs based on his actions. See id.
274. See generally BASS, supra note 210, title page (describing itself as "[t]he dramatic story of the Southern Judges of the Fifth Circuit who translated the Supreme Court's Brown decision into a revolution for equality"); RICHARD KLUGER, SIMPLE JUSTICE (1975) (detailing the role of the Fifth Circuit in enforcing Brown v. Board of Education in the 1960s and 1970s); Frank T. Read, The Bloodless Revolution: The Role of the Fifth Circuit in the Integration of the Deep South, 32 MERCER L. REV. 1149, 1155 (1981) (same). Judge Wisdom is often singled out for his contribution to school desegregation, particularly his opinion in United States v. Jefferson County Board of Education, 372 F.2d 836, 869 (5th Cir. 1966) (holding that "the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration"), aff'd, 380 F.2d 385 (5th Cir. 1967) (en banc), which is sometimes identified as the first "affirmative action" opinion. Judge Wisdom established his rebel status in Louisiana when he joined the Republican party while at Tulane Law School. See MARK WHITMAN, THE IRONY OF DESEGREGATION LAW 89 (1998); see also Alfred W. Blumrosen et al., Vindicating the Promise of Brown, 26 PAC. L.J. 772, 774 (1995) (quoting Judge Wisdom at a panel discussion as reporting that the post office regularly knew to route letters addressed to "Judge Ignorance" to his chambers). Yet, he remained a member of clubs excluding African- Americans and Jews until his death. See Jack Bass, John Minor Wisdom, Appeals Court Judge Who Helped to End Segregation, Dies at 93, N.Y. TIMES, May 16, 1999, at A45. Judge Wisdom explained his membership on the grounds that his fellow members, longtime friends, knew his position and would not change theirs based on his actions. See id.
275. See supra notes 200-02 and accompanying text (discussing the feasibility of integrated student bodies in the South).
276. See supra notes 191-99 and accompanying text (examining the level of integrated student bodies in the South).
277. See. e.g., Hopwood v. Texas, 78 F.3d 932, 945 (5th Cir. 1996) (declaring unconstitutional the affirmative action admissions programs at the University of Texas School of Law by reasoning, in part, that "[t]he use of race, in and of itself, to choose students . . . is no more rational . . . than would be choices based upon . . . blood type of applicants"); Stephen B. Bright, Can Judicial Independence Be Attained in the South? Overcoming History, Elections, and Misperceptions About the Role of the Judiciary, 14 GA. ST. U. L. REV. 817, 841 (1998) (detailing how the Fifth Circuit has limited civil rights).
278. To obtain written school desegregation opinions, I conducted several searches on Westlaw. The searches were conducted for the Court of Appeals for the Fifth and Eleventh Circuits and the district courts in the two circuits and had a date restriction of January 15, 1983 to January 15, 1999. I used two terms and connectors queries - "school desegregation" and desegregation & school! - and one key number query - 345k13 (the key number for separate schools). I included officially unpublished opinions available on Westlaw in the hopes of providing as complete a picture as possible of the status of school desegregation. In other words, I attempted to include as many reliable sources of information as available. For the limits on relying on written opinions, see infra notes 242-56.
279. 498 U.S. 237 (1991); see supra Section I.B.1.
280. Dowell, 498 U.S. at 249-50.
281. See Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1420 (11th Cir. 1992) (reversing the district for dismissing three school districts without an evidentiary hearing); Monteilh v. St. Landry Parish Sch. Bd., 848 F.2d 625, 629 (5th Cir. 1988) (reversing the district court for sua sponle holding that dismissal achieved in 1971); Pitts v. Freeman, 755 F.2d 1423, 1450-51 (11th Cir. 1985) (reversing the district court for sua sponte dismissing the lawsuit without following the Youngblood procedures); Manning v. School Bd., 24 F. Supp. 2d 1277, 1286-87 (M.D. Fla. 1998) (denying dismissal after the district court sua sponte raised issue of unitary status), clarified on other grounds, 28 F. Supp. 2d 1353 (M.D. Fla. 1998); see also Flax v. Potts, 915 F.2d 155, 157 (5th Cir. 1990) (noting that the district court sua sponte required that the parties reexamine the entire desegregation plan and that the defendant then requested dismissal).
282. See Locken v. Board of Educ., 111 F.3d 839, 844 (11th Cir. 1997); United States v. Lowndes County Bd. of Educ., 878 F.2d 1301, 1302 n.2 (11th Cir. 1989) (noting two school districts already dismissed); Quarles v. Oxford Mun Separate Sch. Dist., 868 F.2d 750, 752 (5th Cir. 1989); United States v. Overton, 834 F.2d 1171, 1173 (5th Cir. 1987); United States v. Board of Educ., 794 F.2d 1541, 1543 (11th Cir. 1986) (affirming unitary status for two school districts); United States v. Board of Pub. Instruction, 977 F. Supp. 1202, 1205 (S.D. Fla. 1997); Citizens Concerned About Our Children v. Broward County, Fla., 966 F. Supp. 1166, 1168 (S.D. Fla. 1997); Mills v. Freeman, 942 F. Supp. 1449, 1464 (N.D. Ga. 1996); Young v. Montgomery County (Ala.) Bd. of Educ., 922 F. Supp. 544, 546 (M.D. Ala. 1996); United States v. Board of Educ., 1995 WL 224537, *1 (S.D. Ga. 1995); Stell v. Board of Pub. Educ., 860 F. Supp. 1563, 1585 (S.D. Ga. 1994); Arvizu v. Waco Indep. Sch. Dist., 732 F. Supp 721, 726 (W.D. Tex. 1989); Lee v. Macon County Bd. of Educ. (Talladega), 1988 WL 288974, *1 (N.D. Ala. 1988).
283. See Flax, 915 F.2d at 163; Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 224 (5th Cir. 1983); Tasby v. Wright, 869 F. Supp. 454, 477 (N.D. Tex. 1994), United States v. Texas Educ. Agency (Lubbock Indep. Sch. Dist.), 138 F.R.D. 503, 505 (N.D. Tex. 1991).
284. Pursuant to Youngblood v. Board of Public Instruction, 448 F.2d 770 (5th Cir. 1971), courts would retain jurisdiction for three years after declaring the school district unitary. During the monitoring period, school districts would file semi-annual reports documenting their continued compliance with their desegregation obligations. See id. at 771; see also supra notes 39-43 and accompanying text (discussing Youngblood). After Dowell, the practice became less frequent.
285. See Lee, 963 F.2d at 1420 (reversing the district court's grant of unitary status for three school districts); Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945, 952 (11th Cir. 1989) (reversing the district court's grant of unitary status); Lowndes County, 878 F.2d at 1302 (noting that the defendant retreated from its request for unitary status); Monteilh, 848 F.2d at 627 (reversing the district court's holding that dismissal had been granted in 1971); United States v. Lawrence County Sch. Dist., 799 F.2d 1031, 1038 (5th Cir. 1986) (affirming the district court's denial of unitary status); Manning, 24 F. Supp. 2d at 1335 (ruling that defendants are not unitary, but "have a short road to travel" to achieve dismissal); United States v. Mississippi (Choctaw County Sch. Dist), 725 F. Supp. 307, 313 (N.D. Miss. 1989) (denying the defendant's claim of unitary status granted in 1978).
286. See Lee, 963 F.2d at 1419-20 (reversing the district court's sua sponte grant of unitary status for three school districts); Monteilh, 848 F.2d at 628-29 (reversing the district court for sua sponte granting unitary status); Manning, 24 F. Supp. 2d at 1335 (denying unitary status although the district court sua sponte initiated unitary proceedings).
287. More detailed tables appear infra in Appendix A.
288. School desegregation opinions often cover more than one issue. If unitary status is denied, for example, additional relief may be ordered Because opinions cannot be neatly categorized into only one relevant category, the total number of opinions is less than the sum of the opinions for each category.
289. School desegregation opinions sometimes address more than one school district. Therefore, the number of opinions is different from the number of school districts involved.
290. The category of "Three-year Youngblood Period Imposed" refers to school districts declared unitary subject to the district court retaining jurisdiction for a three-year monitoring period. For more on the requirements of Youngblood, see supra notes 39-43 and accompanying text.
291. The category of "Unitary Status Denied" covers cases in which unitary status was denied during the relevant time period, even if the court's decision or defendant's argument was premised on pre-1983 events. Not included in this category are unitary status requests or rulings before or after the relevant time period.
292. The category of "Procedural/Remedial" covers school desegregation issues raised in pending cases. The most common procedural issue raised is a motion to intervene. Remedial decisions usually include modifications to outstanding remedial issues.
293. Sixty-one of the seventy-four school districts were involved exclusively in remedial and procedural issues and not in any substantive unitary status proceedings.
294. The category "Liability" includes school desegregation issues in cases where liability is not yet established. Thus, school desegregation challenges made after dismissal would be included in this category.
295. For example, for the eight school districts dismissed with the consent of the plaintiffs, three occurred after Dowell and five before Dowell. See supra note 221-22 and accompanying text. It appears, however, that Dowell increased the attention district courts sua sponte paid to unitary status. For the six cases in which the district court first initiated unitary status issues, two occurred before Dowell and four after Dowell. See supra note 218.
296. See United States v. Lowndes County Bd. of Educ., 878 F.2d 1301, 1302 n.2 (11th Cir. 1989) (noting that two school districts were already dismissed); Quarles v. Oxford Mun. Separate Sch. Dist., 868 F.2d 750, 752 (5th Cir. 1989); United States v. Overton, 834 F.2d 1171, 1177 (5th Cir. 1987); United States v. Board of Educ., 794 F.2d 1541, 1543 (11th Cir. 1986) (affirming unitary status for two school districts); Arvizu v. Waco Indep. Sch. Dist., 732 F. Supp. 721, 726 (W.D. Tex. 1989); Lee v. Macon County Bd. of Educ. (Talladega), 1988 WL 288974, * 1 (N.D. Ala. 1988).
297. See Flax v. Potts, 915 F.2d 155, 163 (5th Cir. 1990); Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 225 (5th Cir. 1983); United States v. Texas Educ. Agency (Lubbock Indep. Sch. Dist.), 138 F.R.D 503, 505 (N.D. Tex. 1991).
298. See Jacksonville Branch, NAACP v. Duval County Sch. Bd., 883 F.2d 945, 952 (11th Cir. 1989) (reversing the district court's grant of unitary status); United States v. Lowndes County Bd. of Educ., 878 F.2d 1301, 1302 (11th Cir. 1989) (noting that the defendant retreated from its request for unitary status); Monteilh v. St. Landry Parish Sch. Bd., 848 F.2d 625, 627 (5th Cir. 1988) (reversing the district court's holding that dismissal had been granted in 1971); United States v. Lawrence County Sch. Dist., 799 F.2d 1031, 1038 (5th Cir. 1986) (affirming the district court's denial of unitary status); United States v. Mississippi (Choctaw County Sch. Dist.), 725 F. Supp. 307, 313 (N.D. Miss. 1989) (denying the defendant's claim that unitary status was granted in 1978). Two school districts were denied unitary status before Dowell, but granted unitary status after Dowell. See Pitts v. Freeman, 887 F.2d 1438, 1441 (11th Cir. 1989) (denying unitary status); Mills v. Freeman, 942 F. Supp. 1449, 1464 (N.D. Ga. 1996) (granting unitary status); Tasby v. Woolery, 869 F. Supp. 454, 477 (N.D. Tex. 1994) (granting unitary status); Tasby v. Edwards, 1989 WL 206484, *1 (N.D. Tex. 1989) (denying unitary status).
299. See Lockett v. Board of Educ., 111 F.3d 839, 844 (11th Cir. 1997); United States v. Board of Pub. Instruction, 977 F. Supp. 1202, 1205 (S.D. Fla. 1997); Citizens Concerned About Our Children v. Broward County, Fla., 966 F. Supp. 1166, 1168 (S.D. Fla. 1997); Mills, 942 F. Supp. at 1464; Young v. Montgomery County (Ala.) Bd. of Educ., 922 F. Supp. 544, 546 (M.D. Ala. 1996); United States v. Board of Educ., 1995 WL 224537, *1 (S.D. Ga. 1995); Woolery, 869 F. Supp. at 477; Stell v. Board of Pub. Educ., 860 F. Supp. 1563, 1585 (S.D. Ga. 1994).
300. See Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1420 (11th Cir. 1992) (reversing the district court's grant of unitary status for three school districts); Manning v. School Bd., 24 F. Supp. 2d 1277, 1335 (M.D. Fla. 1998) (ruling that defendants are not unitary, but "have a short road to travel" to achieve dismissal), clarified on other grounds, 28 F. Supp. 2d 1353 (M.D. Fla. 1998).
301. Freeman v. Pitts, 503 U.S. 467 (1992); see supra Section I.B.2.
302. See Lockett v. Board of Educ., 92 F.3d 1092, 1101-02 (11th Cir. 1996).
303. See Lockett, 111 F.3d at 840
304. In Appendix A, the figures are listed by circuit. Post-Dowell, Louisiana, Mississippi, and Texas (the states comprising the Fifth Circuit) had only one case - the Dallas school desegregation lawsuit -involved in unitary status proceedings. See Tasby v. Woolery, 869 F. Supp. 454 (N.D. Tex. 1994). In Alabama, Florida, and Georgia, on the other hand, seven school districts were declared unitary and four school districts (at the initiation of the district courts) were denied unitary status. See supra notes 222, 235, 236 and accompanying text. One would not expect the difference unless the Fifth Circuit had already granted more dismissals before Dowell (thereby decreasing the available pool of school districts to dismiss), a possibility which is not reflected in the data.
305. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and
306. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
307. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
308. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
309. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
310. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
311. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
312. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
313. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
314. For this reason, I attempted to supplement the written opinion database with articles from Education Week, a publication that closely reports school desegregation litigation. I analyzed articles covering the same 16-year period as that for the written opinion database, January 15, 1983 to January 15, 1999, to gain any additional information on school districts seeking or awarded unitary status. Through this approach, I hoped to gain a fuller picture of unitary status litigation. Although the sample was large (I identified well over one hundred articles on school desegregation litigation in the six states) and relatively representative (the articles covered rural and urban areas and small, medium, and large school districts), information gleaned on unitary status was minimal. In addition to the written opinions regarding unitary status, I discovered only three school districts that were declared unitary and dismissed from suit, all post-Dowell (Corpus Christi, Texas; Lowndes County, Alabama; and Mobile, Alabama), and one school district awarded partial unitary status (Monroe City, Louisiana). See District News Roundup, EDUC. WK., Mar. 27, 1991, at 2; News in Brief: A National Roundup - Desegregation Case Retired, EDUC. WK., Apr. 9, 1997, at 2; Peter Schmidt, Court Says Ga Obligated to Share Desegregation Costs, EDUC. WK., Sept. 9, 1992, at 13; Peter Schmidt, N.J. School Board Can Merge Districts, Court Rules, EDUC. WK., Aug. 5, 1992, at 10 [hereinafter Schmidt, N.J. School Board]. Education Week also reported that four school districts were involved in some fashion with unitary status arguments (Caddo Parish, Louisiana; Dade County, Florida; Pinellas County, Florida; and Troup County, Georgia). See District News Roundup, EDUC. WK., May 16, 1990, at 2; Hendrie, Without Court Orders, supra note 171, at 1; New Bias Suit Is Filed Against District in La., EDUC. WK., Mar. 7, 1990, at 8, Schmidt, N.J. School Board, supra, at 10. The Education Week articles are consistent with the conclusions drawn from the two empirical studies. The vast majority of articles covered implementation issues in ongoing school desegregation litigation. Therefore, the articles support the conclusion that most school desegregation litigation focuses on remedial issues rather than termination See supra Section II.A. The articles are also consistent with the determination that medium to very large school districts are much more likely to seek unitary status; six of the eight school districts granted unitary status would be classified as very large. See infra Table E and accompanying text.
315. For discussion of and citation to key scholarship on selective publication practices and policies, see Solimine, supra note 146, at 40-41 & nn.165-74; cf., e.g., Theodore Eisenberg & Stewart J. Schwab, What Shapes Perceptions of the Federal Court System?, 56 U. CHI. L. REV. 501, 502-04 (1989); Peter Siegelman & John J. Donohue, III, Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 L. & SOC'Y REV. 1133, 1133-34 (1990).
316. For discussion of and citation to key scholarship on selective publication practices and policies, see Solimine, supra note 146, at 40-41 & nn.165-74; cf., e.g., Theodore Eisenberg & Stewart J. Schwab, What Shapes Perceptions of the Federal Court System?, 56 U. CHI. L. REV. 501, 502-04 (1989); Peter Siegelman & John J. Donohue, III, Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 L. & SOC'Y REV. 1133, 1133-34 (1990).
317. See Eisenberg & Schwab, supra note 243, at 538 (noting that judges are more likely "to fee! more pressure to publish opinions in cases involving higher stakes than in less monetarily important cases").
318. See id. at 508; Marc A. Franklin, Suing Media for Libel: A Litigation Study, 1981 AM. B. FOUND. RES. J. 797, 799 n.11; Marc A. Franklin, Winners and Losers and Why: A Study of Defamation Litigation, 1980 AM. B. FOUND. RES. J. 455, 464; Solimine, supra note 146, at 41.
319. See id. at 508; Marc A. Franklin, Suing Media for Libel: A Litigation Study, 1981 AM. B. FOUND. RES. J. 797, 799 n.11; Marc A. Franklin, Winners and Losers and Why: A Study of Defamation Litigation, 1980 AM. B. FOUND. RES. J. 455, 464; Solimine, supra note 146, at 41.
320. See id. at 508; Marc A. Franklin, Suing Media for Libel: A Litigation Study, 1981 AM. B. FOUND. RES. J. 797, 799 n.11; Marc A. Franklin, Winners and Losers and Why: A Study of Defamation Litigation, 1980 AM. B. FOUND. RES. J. 455, 464; Solimine, supra note 146, at 41.
321. Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L. REV. 581, 588 (1998). For citations to key scholarship, see id. at 588 n.21. For discussion of and citation to the accuracy of the expectation theory in general and the predictability of the theory for personal jurisdiction, see Solimine, supra note 146, at 45-47 & nn. 190-200.
322. Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 GEO. L.J. 1567, 1568 (1989); see also Solimine, supra note 146, at 11-12 (describing the expectations model).
323. Eisenberg, supra note 247, at 1571; see also Solimine, supra note 146, at 12. See generally Daniel Kessler et al., Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation, 25 J. LEGAL STUD. 233 (1996); George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984).
324. Eisenberg, supra note 247, at 1571; see also Solimine, supra note 146, at 12. See generally Daniel Kessler et al., Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation, 25 J. LEGAL STUD. 233 (1996); George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984).
325. See Eisenberg, supra note 247, at 1572.
326. See FED. R. CIV. P. 23(e).
327. See supra note 221-22 and accompanying text.
328. Eisenberg, supra note 247, at 1572-74.
329. Id. at 1572.
330. See id. 1572-73; see also Solimine, supra note 146, at 11.
331. See Eisenberg, supra note 247, at 1575.
332. See generally Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 CORNELL L. REV. 719, 767-70 (1988).
333. Appendix B lists the school desegregation lawsuits for which docket sheets were obtained. The list of school desegregation lawsuits for each district was compiled from three sources. First, the United States Department of Justice, Civil Rights Division, Educational Opportunities Litigation Section (EOLS) maintains a list of cases in which the United States is a party. This list (a copy of which is on file with the author) provided a high number of cases per district because the Department of Justice filed scores of lawsuits throughout the three districts studied. Second, the EOLS list was supplemented by a Westlaw search for any mention of school desegregation lawsuits in the three districts - whether the reference was in an actual school desegregation lawsuit or in another lawsuit. Third, a search of two secondary sources that closely tracked school desegregation litigation from 1956 to 1972 revealed a few additional school desegregation lawsuits in the three judicial districts. See generally RACE RELATIONS LAW REPORTER (published from 1956 to 1967); RACE RELATIONS LAW SURVEY (published from 1969 to 1972). From these three sources, a list of cases for each district was devised. No one source included all cases, and I acknowledge the possibility that some cases are omitted from the survey. For a few cases, the clerk's office was unable to locate the docket sheet for the lawsuit. Nonetheless, the docket survey is still quite comprehensive in numbers - 134 school districts - and the omission of a few school desegregation cases should not affect the conclusions drawn from the survey. In fact, the inability of the clerk's office to locate even the docket sheet for the school desegregation litigation further suggests the extreme inattention and dormancy of the litigation. See infra Table E and accompanying text (summarizing the inactivity in school desegregation cases).
334. Appendix B lists the school desegregation lawsuits for which docket sheets were obtained. The list of school desegregation lawsuits for each district was compiled from three sources. First, the United States Department of Justice, Civil Rights Division, Educational Opportunities Litigation Section (EOLS) maintains a list of cases in which the United States is a party. This list (a copy of which is on file with the author) provided a high number of cases per district because the Department of Justice filed scores of lawsuits throughout the three districts studied. Second, the EOLS list was supplemented by a Westlaw search for any mention of school desegregation lawsuits in the three districts - whether the reference was in an actual school desegregation lawsuit or in another lawsuit. Third, a search of two secondary sources that closely tracked school desegregation litigation from 1956 to 1972 revealed a few additional school desegregation lawsuits in the three judicial districts. See generally RACE RELATIONS LAW REPORTER (published from 1956 to 1967); RACE RELATIONS LAW SURVEY (published from 1969 to 1972). From these three sources, a list of cases for each district was devised. No one source included all cases, and I acknowledge the possibility that some cases are omitted from the survey. For a few cases, the clerk's office was unable to locate the docket sheet for the lawsuit. Nonetheless, the docket survey is still quite comprehensive in numbers - 134 school districts - and the omission of a few school desegregation cases should not affect the conclusions drawn from the survey. In fact, the inability of the clerk's office to locate even the docket sheet for the school desegregation litigation further suggests the extreme inattention and dormancy of the litigation. See infra Table E and accompanying text (summarizing the inactivity in school desegregation cases).
335. See infra notes 297-307 and accompanying text.
336. See Lee v. Macon County Bd. of Educ., 221 F. Supp. 297 (M.D. Ala. 1963) (No. 604-E).
337. 498 U.S. 237 (1991); see supra Section I.B.1.
338. The Court's opinion in Freeman, however, has had a large impact in the Middle District of Alabama, where almost half of the pending school desegregation cases have a ruling of partial unitary status. See infra notes 299, 304 and accompanying text.
339. One school district was declared partially unitary, but this was quickly followed by a grant of full unitary status and dismissal. See Lockett v. Board of Educ., 111 F.3d 839, 840 (11th Cir. 1997) (affirming grant of unitary status); Lockett v. Board of Educ., 92 F.3d 1092, 1101-02 (11th Cir. 1996) (affirming unitary status in limited areas and reversing grant of full unitary status).
340. The United States as plaintiff sought unitary status on behalf of nine school districts in United States v. Georgia, 702 F. Supp. 1577, 1578 (M.D. Ga. 1989). As discussed infra notes 281-82 and accompanying text, the school districts firśt joined the United States, but subsequently opposed dismissal.
341. In "activity," I include all filings or orders regarding liability, procedure, remedy, implementation, and termination. Excluded are the following: the routine filing of annual reports of compliance with outstanding remedial orders, a common feature of school desegregation decrees; withdrawals of attorneys of record; clerk notations closing the file; and return of appeal bond monies.
342. See BASS, supra note 210, at 184-86.
343. See C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 156-57 (1974).
344. See Edwards v. Greenville Mun. Separate Sch. Dist., No. 70-8 (N.D. Miss.) (dismissed July 2, 1992); Quarles v. Oxford Mun. Separate Sch. Dist., No. 69-62 (N.D. Miss.) (dismissed June 2, 1988); Cunningham v. Grenada Mun. Separate Sch. Dist., No. 66-33 (N.D. Miss.) (dismissed Jan. 3, 1986); United States v. Corinth Mun. Separate Sch. Dist., No. 66-80 (N.D. Miss.) (dismissed May 20, 1976); Taylor v. Houston Mun. Separate Sch. Dist., No. 70-6 (N.D. Miss.) (dismissed Dec. 20, 1971).
345. See United States v. Benton County Bd. of Educ., No 65-13 (N.D. Miss.) (request withdrawn Aug. 11, 1989); United States v. Mississippi (Choctaw County School District), No. 70-36 (N.D. Miss.) (defendants never requested completion of unitary hearing begun July 24, 1985). 269 See Henry v. Clarksdale Mun. Separate Sch. Dist., No. 64-28 (N.D. Miss.) (dismissal denied July 19, 1979).
346. The one coming after Dowell was granted. See Edwards v. Greenville Mun. Separate Sch. Dist., No. 70-8 (N.D. Miss.) (dismissed July 2, 1992).
347. See supra note 264.
348. See United States v. Mississippi (Attala County Sch. Dist.), No. 70-36 (N.D. Miss. July 9, 1970); United States v. Mississippi (Webster County Sch. Dist.), No. 70-36 (N.D. Miss. July 9, 1970); United States v. Coffeeville Consolidated Sch. Dist., No. 69-57 (N.D. Miss. July 10, 1969); United States v. Nettleton Line Consol. Sch. Dist., No. 69-63 (N.D. Miss. June 8, 1969); United States v. Pontotoc County Sch. Dist., No. 67-35 (N.D. Miss. Sept. 14, 1967); United States v. Montgomery County Sch. Dist., No. 67-20 (N.D. Miss. June 7, 1967); United States v. Humphreys County Sch. Dist., No. 66-37 (N.D. Miss. Sept. 2, 1966); United States v. North Tippah Consol. Sch. Dist. & South Tippah Consol. Sch. Dist., No. 66-41 (N.D. Miss. Sept. 2, 1966); United States v. Louisville Mun. Separate Sch. Dist., No. 66-68 (N.D. Miss. Aug. 19, 1966); United States v. Calhoun County Bd. of Educ., No. 66-37 (N.D. Miss. Aug. 12, 1966); United States v. Carroll County Bd. of Educ., No. 65-41 (N.D. Miss Aug. 26, 1965).
349. One lawsuit, United Stales v. Board of Education of Talbot Country, No. 1372 (M.D. Ga. Sept. 8, 1969) was dismissed without prejudice in 1972 after the United States failed to appear at the preliminary injunction hearing in 1969. This suit was not included in the study.
350. See United States v. Board of Educ. of Valdosta County, Georgia, No. 861 (M.D. Ga. Nov. 30, 1970); United States v. Board of Educ. of Decatur County, Ga., No. 800 (M.D. Ga. May 29, 1967); Lockett v. Board of Educ. of Muscogee County Sch. Dist., No. 64-991 (M.D. Ga. Jan. 13, 1964);. Bivins v. Board of Educ. of Bibb County, Ga., No. 1926 (M.D. Ga. Aug. 14, 1963).
351. See Lockett v. Board of Educ., 111 F.3d 839, 840 (11th Cir. 1997).
352. 691 F. Supp. 1440, 1443 (M.D. Ga. 1988).
353. Id. at 1442.
354. The Eleventh Circuit recently held that the general permanent injunctions are not dismissal orders under Dowell. See United States v. Georgia, Meriwether County, 171 F.3d 1344, 1347-48 (11th Cir. 1999); see supra notes 52-54 and accompanying text (discussing the Supreme Court's requirement in Dowell that a district court must be clear in its intention to dismiss an action before the case should be considered terminated).
355. See id. at 1442-43.
356. See Georgia, 691 F. Supp. at 1443.
357. William Snider, Justice Officials Seek to End Many U.S. Integration Suits, EDUC. WK., March 16, 1988, at 1 (quoting a school district lawyer).
358. See United States v. Georgia, 702 F. Supp. 1577, 1578 (M.D. Ga. 1989).
359. See Georgia, 691 F. Supp. at 1444.
360. See Georgia, 702 F. Supp. at 1580.
361. See United States v. Georgia, 890 F.2d 1166, tbl. (11th Cir. 1989).
362. See United States v. Board of Educ. of Ben Hill County, No. 642 (M.D. Ga.) (entering remedial order in 1967, which was modified on defendant's motion in 1969 to grant more time to implement the remedy; the modification was the last activity in the lawsuit). The Supreme Court ruled that freedom of choice plans (under which school children choose which school to attend) - the predominant remedial approach at the time - were legally inadequate in Green v. County School Board, 391 U.S. 430, 441-42 (1968).
363. 402 U.S. 1 (1971).
364. See United States v. Board of Educ. of Baldwin County, No. 2329 (M.D. Ga.) (issuing the last remedial plan in 1970); United States v. Board of Educ. of Lowndes County, No. 785 (M.D. Ga.) (entering the remedial order in 1969). 289 231 F. Supp. 743 (M.D. Ala. 1964). 290 See id. at 744.
365. See id. at 745.
366. See id.
367. See id. at 747-48.
368. See Lee v. Macon County Bd. of Educ., 970 F.2d 767 (11th Cir. 1992), opinion vacated on other grounds, 987 F.2d 1521 (11th Cir. 1993) (en banc). Ironically, the high school eventually became the county's only integrated school. See id. at 768-69. Macon County's other three schools are almost 100% African-American. The school district unsuccessfully sought to close the school to consolidate it with other schools. See Lee, 987 F.2d at 1521 (affirming, by an equally divided vote, the district court's denial of the school district's motion).
369. See Lee v. Lee County Bd. of Educ., 963 F. Supp. 1122, 1127 (M.D. Ala. 1997).
370. At least two of the school districts subsequently consolidated into one school district. For the sake of simplicity, I counted separately the school districts consolidated with another school district after the filing of Lee v. Macon. Thus, although Florala City Board of Education was consolidated with Covington City Board of Education, I counted Florala as a separate school district in compiling the data.
371. See Ronald Smothers, Principal Causes Furor on Mixed-Race Couples, N.Y. TIMES, March 16, 1994, at A16. Mr. Humphries was relieved of his duties as principal after summoning juniors and seniors to a meeting in the auditorium to cancel the prom because many students planned to bring dates of different races. See AP, Comments on Race Split Alabama Prom, N.Y. TIMES, April 25, 1994, at A12. Mr. Humphries called Revonda Bowen, who was president of the junior class and who has one African-American and one white parent, a "mistake" he wanted to prevent others from making Sue Anne Pressley, Alabama Hamlet's Wounds from Racial Controversy Slow to Heal, WASH POST, April 7, 1996, at A3. Despite a federal court order barring Mr. Humphries from school grounds, the former principal was subsequently elected superintendent for Randolph County See Malcomb Daniels, Humphries Should Take Office, Government Says, THE MONTGOMERY ADVISOR, Nov. 20, 1996, at 1B; see also Controversial Chief to Retire, EDUC. WK., Dec. 8, 1999 (reporting that Mr. Humphries intended to retire).
372. See Ronald Smothers, Principal Causes Furor on Mixed-Race Couples, N.Y. TIMES, March 16, 1994, at A16. Mr. Humphries was relieved of his duties as principal after summoning juniors and seniors to a meeting in the auditorium to cancel the prom because many students planned to bring dates of different races. See AP, Comments on Race Split Alabama Prom, N.Y. TIMES, April 25, 1994, at A12. Mr. Humphries called Revonda Bowen, who was president of the junior class and who has one African-American and one white parent, a "mistake" he wanted to prevent others from making Sue Anne Pressley, Alabama Hamlet's Wounds from Racial Controversy Slow to Heal, WASH POST, April 7, 1996, at A3. Despite a federal court order barring Mr. Humphries from school grounds, the former principal was subsequently elected superintendent for Randolph County See Malcomb Daniels, Humphries Should Take Office, Government Says, THE MONTGOMERY ADVISOR, Nov. 20, 1996, at 1B; see also Controversial Chief to Retire, EDUC. WK., Dec. 8, 1999 (reporting that Mr. Humphries intended to retire).
373. See Ronald Smothers, Principal Causes Furor on Mixed-Race Couples, N.Y. TIMES, March 16, 1994, at A16. Mr. Humphries was relieved of his duties as principal after summoning juniors and seniors to a meeting in the auditorium to cancel the prom because many students planned to bring dates of different races. See AP, Comments on Race Split Alabama Prom, N.Y. TIMES, April 25, 1994, at A12. Mr. Humphries called Revonda Bowen, who was president of the junior class and who has one African-American and one white parent, a "mistake" he wanted to prevent others from making Sue Anne Pressley, Alabama Hamlet's Wounds from Racial Controversy Slow to Heal, WASH POST, April 7, 1996, at A3. Despite a federal court order barring Mr. Humphries from school grounds, the former principal was subsequently elected superintendent for Randolph County See Malcomb Daniels, Humphries Should Take Office, Government Says, THE MONTGOMERY ADVISOR, Nov. 20, 1996, at 1B; see also Controversial Chief to Retire, EDUC. WK., Dec. 8, 1999 (reporting that Mr. Humphries intended to retire).
374. See Ronald Smothers, Principal Causes Furor on Mixed-Race Couples, N.Y. TIMES, March 16, 1994, at A16. Mr. Humphries was relieved of his duties as principal after summoning juniors and seniors to a meeting in the auditorium to cancel the prom because many students planned to bring dates of different races. See AP, Comments on Race Split Alabama Prom, N.Y. TIMES, April 25, 1994, at A12. Mr. Humphries called Revonda Bowen, who was president of the junior class and who has one African-American and one white parent, a "mistake" he wanted to prevent others from making Sue Anne Pressley, Alabama Hamlet's Wounds from Racial Controversy Slow to Heal, WASH POST, April 7, 1996, at A3. Despite a federal court order barring Mr. Humphries from school grounds, the former principal was subsequently elected superintendent for Randolph County See Malcomb Daniels, Humphries Should Take Office, Government Says, THE MONTGOMERY ADVISOR, Nov. 20, 1996, at 1B; see also Controversial Chief to Retire, EDUC. WK., Dec. 8, 1999 (reporting that Mr. Humphries intended to retire).
375. See Ronald Smothers, Principal Causes Furor on Mixed-Race Couples, N.Y. TIMES, March 16, 1994, at A16. Mr. Humphries was relieved of his duties as principal after summoning juniors and seniors to a meeting in the auditorium to cancel the prom because many students planned to bring dates of different races. See AP, Comments on Race Split Alabama Prom, N.Y. TIMES, April 25, 1994, at A12. Mr. Humphries called Revonda Bowen, who was president of the junior class and who has one African-American and one white parent, a "mistake" he wanted to prevent others from making Sue Anne Pressley, Alabama Hamlet's Wounds from Racial Controversy Slow to Heal, WASH POST, April 7, 1996, at A3. Despite a federal court order barring Mr. Humphries from school grounds, the former principal was subsequently elected superintendent for Randolph County See Malcomb Daniels, Humphries Should Take Office, Government Says, THE MONTGOMERY ADVISOR, Nov. 20, 1996, at 1B; see also Controversial Chief to Retire, EDUC. WK., Dec. 8, 1999 (reporting that Mr. Humphries intended to retire).
376. See Carr v. Montgomery County Bd. of Educ., No. 2072 (M.D. Ala.) (dismissed May 28, 1993); United States v. Lowndes County Bd. of Educ., No. 2328 (M.D. Ala.) (dismissed Mar. 13, 1991).
377. See Lee v. Ozark City Bd. of Educ., No. 70-1063 (M.D. Ala.) (partial unitary status for transportation and facilities awarded under Sept. 26, 1997 Consent Decree); Lee v. Autauga County Bd. of Educ., No. 70-3098 (M.D. Ala.) (partial unitary status for transportation, facilities, discipline, and salary supplements granted in Sept. 18, 1997 Consent Decree); Harris v. Bullock County Bd. of Educ., No. 2073 (M.D. Ala.) (partial unitary status for three Green factors pursuant to June 14, 1993 Consent Decree).
378. See Lee v. Chambers County Bd. of Educ., No. 70-844-E (M.D. Ala.). In Lee v. Chambers, the Lanett City Board of Education first filed a petition for unitary status on February 6, 1997, which was dismissed after the defendant requested a continuance. On May 11, 1999, Lanett City Board of Education filed a second motion for unitary status.
379. Lee v. Lee County Bd. of Educ., 963 F. Supp. 1122, 1124 (M.D. Ala. 1997) (quoting from Order dated Feb. 12, 1997).
380. See Franklin v. Barbour County Bd. of Educ., No. 2458 (M.D. Ala.); Lee v. Chambers County Bd. of Educ., No. 844-E (M.D. Ala.); Lee v. Macon County Bd. of Educ., No. 846-E (M.D Ala.); Lee v. Randolph County Bd. of Educ., No. 847-E (M.D. Ala.).
381. See Harris v. Bullock County Bd. of Educ., No. 2073 (M.D. Ala.).
382. In fact, all but one school district were subject to a consent decree resolving the show cause order by the 2000-01 school year.
383. No. 855-E (M.D. Ala.).
384. See supra note 61 (listing the Green factors).
385. See Roanoke City Bd. of Educ., No. 855-E (M.D. Ala.) (June 15, 1998 Consent Decree).
386. Only four of the fourteen addressed student assignment to school buildings. See Lee v. Phenix City Bd. of Educ., No. 70-854 (M.D. Ala.) (Sept. 16, 1998 Consent Decree); Lee v. Lee County Bd. of Educ., No. 70-845-E (M.D. Ala.) (Aug. 14, 1998 Consent Decree); Lee v. Tallapoosa County Bd. of Educ., No. 849-E (M.D. Ala.) (July 22, 1998 Consent Decree); Lee v. Ozark City Bd. of Educ., No. 70-1063 (M.D. Ala.) (Sept. 26, 1997 Consent Decree). Two other consent decrees addressed student transfer policies to assure that the policies were not used to impede desegregation. See Lee v. Russell County Bd. of Educ., No. 848-E (M.D. Ala.) (June 15, 1998 Consent Decree); Lee v. Geneva County Bd. of Educ., 70-1056 (M.D. Ala.) (May 22, 1997 Consent Decree).
387. Included are school districts placed in the three-year Youngblood period. See supra notes 39-43, 234 and accompanying text. Other public law litigation continues in great numbers. For example, many prison condition cases are still pending. See Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994, 2032-33 (1999) (book review); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L. REV. 639, 641-42 (1993).
388. Included are school districts placed in the three-year Youngblood period. See supra notes 39-43, 234 and accompanying text. Other public law litigation continues in great numbers. For example, many prison condition cases are still pending. See Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994, 2032-33 (1999) (book review); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L. REV. 639, 641-42 (1993).
389. Included are school districts placed in the three-year Youngblood period. See supra notes 39-43, 234 and accompanying text. Other public law litigation continues in great numbers. For example, many prison condition cases are still pending. See Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994, 2032-33 (1999) (book review); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L. REV. 639, 641-42 (1993).
390. See. eg., United States v. Aberdeen Mun. Separate Sch. Dist., No. 65-64 (N.D. Miss.) (from 1988 to 1999 only filings are semi-annual reports); United States v. Calhoun County Bd. of Educ., No. 66-37 (N.D. Miss.) (from 1971 to 1999 only filings are semi-annual reports).
391. See Jonathan Sidener, Courts, Schools Targeted Desegregation Plans Draw Governor's Fire, THE ARIZONA REPUBLIC, Aug. 26, 1995, at A1.
392. See United States v. Georgia, 691 F. Supp. 1440, 1443 (M.D. Ga. 1988); see supra notes 276-85 and accompanying text.
393. See id. at 1443-44.
394. The United States agreed to pay for part of the litigation expenses. See United States v. Georgia, 702 F. Supp. 1577, 1581 (M.D. Ga. 1989), appeal dismissed, 890 F.2d 1166 (11th Cir. 1989).
395. See supra note 285 and accompanying text.
396. Georgia, 691 F. Supp. at 1444.
397. For example, the lawyer for Macon County stated that dismissal "'is not going to help anybody, but it's not going to hurt anybody either.'" See Snider, supra note 281, at 1; see also William Snider, Justice Dept. Will Press to End Desegregation Suits, EDUC. WK., Aug. 3, 1988, at 8 (reporting that "several of the nine districts have said in interviews that they would prefer to remain under judicial supervision, which they said has not proved burdensome"); William Snider, Justice Desegregation Plan Hits Snag, EDUC. WK., May 4, 1988, at 9 (quoting one school district superintendent, whose school district was eventually dropped from the proceeding, as saying "'it was in our best interest not to devote time, effort, and money to respond to [discovery]'"); id. (quoting the Jasper County superintendent as preferring "'just . . . to let it lie'").
398. For example, the lawyer for Macon County stated that dismissal "'is not going to help anybody, but it's not going to hurt anybody either.'" See Snider, supra note 281, at 1; see also William Snider, Justice Dept. Will Press to End Desegregation Suits, EDUC. WK., Aug. 3, 1988, at 8 (reporting that "several of the nine districts have said in interviews that they would prefer to remain under judicial supervision, which they said has not proved burdensome"); William Snider, Justice Desegregation Plan Hits Snag, EDUC. WK., May 4, 1988, at 9 (quoting one school district superintendent, whose school district was eventually dropped from the proceeding, as saying "'it was in our best interest not to devote time, effort, and money to respond to [discovery]'"); id. (quoting the Jasper County superintendent as preferring "'just . . . to let it lie'").
399. The classifications are those used by David Armor, a frequent expert for school districts in school desegregation litigation. See ARMOR, supra note 188, at 166. The school district enrollment figures for the districts seeking and achieving unitary status come from one of following two sources: U.S. DEPARTMENT OF EDUCATION, NATIONAL CENTER FOR EDUCATION STATISTICS, DIGEST OF EDUCATION STATISTICS 1998 (1998); NATIONAL CENTER FOR EDUCATION STATISTICS AND THE MESA GROUP, SCHOOL DISTRICT DATA BOOK (1995).
400. The classifications are those used by David Armor, a frequent expert for school districts in school desegregation litigation. See ARMOR, supra note 188, at 166. The school district enrollment figures for the districts seeking and achieving unitary status come from one of following two sources: U.S. DEPARTMENT OF EDUCATION, NATIONAL CENTER FOR EDUCATION STATISTICS, DIGEST OF EDUCATION STATISTICS 1998 (1998); NATIONAL CENTER FOR EDUCATION STATISTICS AND THE MESA GROUP, SCHOOL DISTRICT DATA BOOK (1995).
401. See generally Parker, supra note 25.
402. Moreover, the argument is harmful for those who believe that school desegregation remedies have utility even after desegregation to the extent practicable (i.e., unitary status) has been achieved. Under this approach, continued jurisdiction should be maintained after a school district should be, under Dowell, declared unitary and the case dismissed. In other words, this view maintains that the Supreme Court erred in Dowell by holding that dismissal occurs when unitary status is achieved because the remedial decree should operate in perpetuity or, less drastically, should continue for some specified time. The continued usefulness of a remedial decree post-unitary status would most likely occur either (1) when a school district is using race-conscious policies that may be unconstitutional if not necessary to redress past discrimination or (2) when a school district can only maintain magnet schools or other special desegregation measures if it receives state or federal monies awarded because of the pending decree. My model of a more active judiciary could possibly prevent continued jurisdiction in these situations when integration is only possible with pending court orders. I am very sympathetic to this argument for I agree that termination can harm a school district's efforts to maintain integrated school systems. Yet, the situations are possibly few. Even a school district not yet unitary may be precluded from using raceconscious student assignment policies, as occurred in the settlement in the pending San Francisco school desegregation lawsuit. See David I. Levine, The Chinese American Challenge to Court-Mandated Quotas in San Francisco's Public Schools: Notes from a (Partisan) Participant Observer, 16 HARV. BLACKLETTER J. 39, 99-116 (2000); Peter Waldman, School-Desegregation Accord Stresses Pupils' Socioeconomic Factors Over Race, WALL ST. J., Feb. 18, 1999, at B13. Further, federal magnet grant money is available to school districts not under court order. See Magnet Schools Assistance Program, 34 C.F.R. § 280.1-41 (1999). Finally, extra state monies may still be available, even after dismissal. See. e.g., Caroline Hendrie, Taxes, Transfer Program On the Table in St. Louis Desegregation Settlement, EDUC. WK., Aug. 5, 1998, at 8 (reporting that the State would still provide extra monies for Kansas City, Missouri even though the State had been dismissed from the school desegregation lawsuit). This issue is discussed further infra section III.B.3.
403. Moreover, the argument is harmful for those who believe that school desegregation remedies have utility even after desegregation to the extent practicable (i.e., unitary status) has been achieved. Under this approach, continued jurisdiction should be maintained after a school district should be, under Dowell, declared unitary and the case dismissed. In other words, this view maintains that the Supreme Court erred in Dowell by holding that dismissal occurs when unitary status is achieved because the remedial decree should operate in perpetuity or, less drastically, should continue for some specified time. The continued usefulness of a remedial decree post-unitary status would most likely occur either (1) when a school district is using race-conscious policies that may be unconstitutional if not necessary to redress past discrimination or (2) when a school district can only maintain magnet schools or other special desegregation measures if it receives state or federal monies awarded because of the pending decree. My model of a more active judiciary could possibly prevent continued jurisdiction in these situations when integration is only possible with pending court orders. I am very sympathetic to this argument for I agree that termination can harm a school district's efforts to maintain integrated school systems. Yet, the situations are possibly few. Even a school district not yet unitary may be precluded from using raceconscious student assignment policies, as occurred in the settlement in the pending San Francisco school desegregation lawsuit. See David I. Levine, The Chinese American Challenge to Court-Mandated Quotas in San Francisco's Public Schools: Notes from a (Partisan) Participant Observer, 16 HARV. BLACKLETTER J. 39, 99-116 (2000); Peter Waldman, School-Desegregation Accord Stresses Pupils' Socioeconomic Factors Over Race, WALL ST. J., Feb. 18, 1999, at B13. Further, federal magnet grant money is available to school districts not under court order. See Magnet Schools Assistance Program, 34 C.F.R. § 280.1-41 (1999). Finally, extra state monies may still be available, even after dismissal. See. e.g., Caroline Hendrie, Taxes, Transfer Program On the Table in St. Louis Desegregation Settlement, EDUC. WK., Aug. 5, 1998, at 8 (reporting that the State would still provide extra monies for Kansas City, Missouri even though the State had been dismissed from the school desegregation lawsuit). This issue is discussed further infra section III.B.3.
404. Moreover, the argument is harmful for those who believe that school desegregation remedies have utility even after desegregation to the extent practicable (i.e., unitary status) has been achieved. Under this approach, continued jurisdiction should be maintained after a school district should be, under Dowell, declared unitary and the case dismissed. In other words, this view maintains that the Supreme Court erred in Dowell by holding that dismissal occurs when unitary status is achieved because the remedial decree should operate in perpetuity or, less drastically, should continue for some specified time. The continued usefulness of a remedial decree post-unitary status would most likely occur either (1) when a school district is using race-conscious policies that may be unconstitutional if not necessary to redress past discrimination or (2) when a school district can only maintain magnet schools or other special desegregation measures if it receives state or federal monies awarded because of the pending decree. My model of a more active judiciary could possibly prevent continued jurisdiction in these situations when integration is only possible with pending court orders. I am very sympathetic to this argument for I agree that termination can harm a school district's efforts to maintain integrated school systems. Yet, the situations are possibly few. Even a school district not yet unitary may be precluded from using raceconscious student assignment policies, as occurred in the settlement in the pending San Francisco school desegregation lawsuit. See David I. Levine, The Chinese American
405. See infra notes 355-59 and accompanying text.
406. See generally Julie Davies, Federal Civil Rights Practice in the 1990's: The Dichotomy Between Reality and Theory, 48 HASTINGS L.J. 197, 199-200, 262 (1997) (identifying "obstacles to enforcement of civil rights legislation" in the law of attorneys' fees); Sturm, supra note 309, at 644 & n.17 (noting that the Supreme Court has limited the availability of attorneys' fees).
407. The limited resources of civil rights organizations have prevented active evaluation of implementation issues. See FRANK R. KEMERER, WILLIAM WAYNE JUSTICE: A JUDICIAL BIOGRAPHY 129-30 (1991) (quoting Judge Justice, who oversaw the state-wide school desegregation suit in Texas, as finding that the monitoring actions of civil rights groups "have been sporadic"); Sturm, supra note 309, at 643-44 (noting the decrease in funding from private foundations and the government for public interest organizations). Furthermore, starting in 1975 Congress has restricted legal services from participating in school desegregation litigation. See 42 U.S.C. § 2996f(b)(9) (1994) (Legal Services Act of 1974).
408. See supra Section I.D.
409. See supra note 218 and accompanying text.
410. The attorney representing the DeKalb County school district in Freeman v. Pitts, 503 U.S. 467 (1992), estimated that the quest for unitary status cost the school district more than one million dollars in litigation expenses. See Orfield & Thronson, supra note 14, at 769.
411. See supra notes 276-85 and accompanying text.
412. See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 102 (1991) (arguing that "courts, by ordering action, allow officials to do what they believe needs to be done without their taking full responsibility for it"); see also United States v. City of Miami, 2 F.3d 1497, 1505 (11th Cir. 1993) ("[O]ur experience teaches us that on some occasions public employers prefer the supervision of a federal court to confronting directly its employees and the public."); Levine, supra note 320, at 124 (arguing that unitary status is "the last thing the school district wants" in the San Francisco school desegregation suit); Alan Effron, Note, Federalism and Federal Consent Decrees Against State Governmental Entities, 88 COLUM. L. REV. 1796, 1806 (1988) (contending that settlements allow state agencies to evade political accountability for actions).
413. See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 102 (1991) (arguing that "courts, by ordering action, allow officials to do what they believe needs to be done without their taking full responsibility for it"); see also United States v. City of Miami, 2 F.3d 1497, 1505 (11th Cir. 1993) ("[O]ur experience teaches us that on some occasions public employers prefer the supervision of a federal court to confronting directly its employees and the public."); Levine, supra note 320, at 124 (arguing that unitary status is "the last thing the school district wants" in the San Francisco school desegregation suit); Alan Effron, Note, Federalism and Federal Consent Decrees Against State Governmental Entities, 88 COLUM. L. REV. 1796, 1806 (1988) (contending that settlements allow state agencies to evade political accountability for actions).
414. Compare DeKalb County Sch. Dist. v. Schrenko, 109 F.3d 680, 682 (11th Cir. 1997) (per curiam) (rejecting the State of Georgia's financial responsibility for desegregating DeKalb County School District), and United States v. Texas Educ. Agency (Lubbock Indep. Sch. Dist.), 790 F.2d 1262, 1262-63 (5th Cir. 1986) (affirming denial of state payment of desegregation costs), with Board of Pub. Educ. v. Georgia, 1992 WL 322299 (S.D. Ga. 1992) (imposing 15% of desegregation costs for the Savannah-Chatham County School District on the State of Georgia); see also Ryan, supra note 14, at 262-64 (providing overview of cases in which school districts seek state responsibility and funding for school desegregation). Remarkably, Arizona state law allows school districts under court order to fund desegregation expenses by exceeding state funding limits and by, without voter consent, raising property taxes. See ARIZ. REV. STAT. § 15-910(G) -(K) (Supp. 1999).
415. See Magnet Schools Assistance Program, 34 C.F.R. § 280.1-41 (1999).
416. See Lee v. Etowah County Bd. of Educ., 963 F.2d 1416, 1419 (11th Cir. 1992) (districtcourt issuing show cause orders on its own motion for three Alabama school districts); Flax v. Potts, 915 F.2d 155, 157 (5th Cir. 1990) (district court sua sponte ordering the parties to the Ft. Worth school desegregation to re-examine the entire school desegregation plan); Freeman v. Pitts, 755 F.2d 1423, 1424 (11th Cir. 1985) (reversing the district court for granting unitary status on its own initiative for DeKalb County, Georgia); Manning v. School Bd., 24 F. Supp. 2d 1277, 1286-87 (M.D. Fla. 1998) (district court sua sponte raising the issue of unitary status), clarified on other grounds, 28 F. Supp. 2d 1353 (M.D. Fla. 1998).
417. See generally Parker, supra note 25, at 534-39 (arguing that defendants receive deference in motions for modification).
418. Chayes, supra note 33, at 1284. This extreme judicial inactivity also calls into question the role Professor Owen M. Fiss envisioned for judges in structural reform cases: "The task of the judge is to give meaning to constitutional values." Owen M. Fiss, The Supreme Court 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 9 (1979); see also Lloyd C. Anderson, Implementation of Consent Decrees in Structural Reform Litigation, 1986 U. ILL. L. REV. 725, 761 (describing the judge as the "ultimate supervisor in implementing structural consent decrees"); Colin S. Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 VA. L. REV. 43, 46, 77 (1979) (defining the judge as a "political powerbroker," "at once central and peripheral, umpire and spectator").
419. Chayes, supra note 33, at 1284. This extreme judicial inactivity also calls into question the role Professor Owen M. Fiss envisioned for judges in structural reform cases: "The task of the judge is to give meaning to constitutional values." Owen M. Fiss, The Supreme Court 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 9 (1979); see also Lloyd C. Anderson, Implementation of Consent Decrees in Structural Reform Litigation, 1986 U. ILL. L. REV. 725, 761 (describing the judge as the "ultimate supervisor in implementing structural consent decrees"); Colin S. Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 VA. L. REV. 43, 46, 77 (1979) (defining the judge as a "political powerbroker," "at once central and peripheral, umpire and spectator").
420. Chayes, supra note 33, at 1284. This extreme judicial inactivity also calls into question the role Professor Owen M. Fiss envisioned for judges in structural reform cases: "The task of the judge is to give meaning to constitutional values." Owen M. Fiss, The Supreme Court 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 9 (1979); see also Lloyd C. Anderson, Implementation of Consent Decrees in Structural Reform Litigation, 1986 U. ILL. L. REV. 725, 761 (describing the judge as the "ultimate supervisor in implementing structural consent decrees"); Colin S. Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 VA. L. REV. 43, 46, 77 (1979) (defining the judge as a "political powerbroker," "at once central and peripheral, umpire and spectator").
421. Youngblood v. Board of Pub. Instruction, 448 F.2d 770, 771 (5th Cir. 1971); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that precedent in the former Fifth Circuit is binding on the newly created Eleventh Circuit).
422. A judge, of course, has the authority to set a show cause hearing for a case in active litigation to determine whether continued jurisdiction is appropriate. My model, however, excludes such cases because in this instance parties are represented by counsel and an affirmative choice regarding continued supervision has been made. In other words, my proposal is concerned solely with languishing cases because here the inactivity may hide noncompliance or require an ineffective remedy.
423. See Board of Educ. v. Dowell, 498 U.S. 237, 247-50 (1991); see supra Section I.B.1.
424. See 28 U.S.C. § 636 (1994). The Alabama judges used magistrate judges to manage discovery and settlement, but also actively encouraged settlement themselves.
425. See generally Douglas Laycock, Due Process of Law in Trilateral Disputes, 78 IOWA L. REV. 1011, 1012-13 (1993); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663 (1995).
426. See generally Douglas Laycock, Due Process of Law in Trilateral Disputes, 78 IOWA L. REV. 1011, 1012-13 (1993); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663 (1995).
427. See supra notes 301-02 and accompanying text.
428. Magistrate Judge Charles S. Coody has played a significant role in the Alabama cases. See Letter from Judge W. Harold Albritton to Wendy Parker 1 (Jan. 31, 2000) (on file with author) (writing that "I cannot overemphasize the benefit of having a seasoned and talented magistrate judge, such as Judge Coody, take a proactive role in dealing with the nuts and bolts of working out consent decrees after the district judge initially sets the agenda and the tone for working on it.").
429. See supra notes 304-08 and accompanying text.
430. See. e.g., Wright v. Council of Emporia, 407 U.S. 451, 468 (1972) (imposing the responsibility on district court judges "to provide an effective remedy"); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (noting that when defendants fail to propose an adequate remedy, "a district court has broad power to fashion a remedy that will assure a unitary school system").
431. See FED. R. Civ. P. 11(c)(1)(B).
432. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).
433. See Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989).
434. See Clofer v. Perego, 106 F.3d 678, 679 (5th Cir. 1997).
435. Many remedial orders require that school districts file annual reports documenting their compliance with outstanding court orders and providing relevant statistical information. See, e.g., United States v. Board of Pub. Instruction, 977 F. Supp. 1202, 1227 (S.D. Fla. 1997); Tasby v. Woolery, 869 F. Supp. 454, 473 (N.D. Tex. 1994).
436. See Timothy Stoltzfus Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 TEX. L. REV. 1101, 1104 (1986) (noting that "(t]he future tricks the court; the injunction, the court's now outdated prediction, plods off into irrelevancy, leaving the beneficiary bereft of protection or the obligor subject to oppression").
437. In 1998, Judge Albritton explained why he set a show cause hearing in a case with no activity since 1987: This court is of the firm opinion that, with a new century rapidly approaching, it is time for this board, as well as others throughout the state which have not yet done so, to either have their systems declared unitary or to promptly take steps as may be necessary to allow such a declaration. If this system has achieved unitary status, as it should have after all these years, it is time for that status to be declared and for this federal court to terminate its supervision of the system. If unitary status has not been achieved, it is time for the Defendant to achieve it so that the former dual system will finally be dismantled and full control of the school system can be returned to local authority, where it belongs. The federal court will then be out of the business of supervising the local schools, barring, of course, any new federal violations. Lee v. Troy City Bd. of Educ., No. 310-N (Order dated July 22, 1998).
438. See supra notes 289-96 and accompanying text.
439. In fact, Fred D. Gray, who filed the original complaint in Lee v. Macon, has returned to the litigation to represent private plaintiffs in the Alabama cases.
440. See, e.g., Smiley v. Blevins, 514 F. Supp. 1248, 1250, 1253 (S.D. Tex. 1981) (school desegregation case for Galveston Independent School District).
441. See 42 U.S.C. § 1988(b) (1994).
442. Continued jurisdiction, however, would provide an incentive for compliance for a school district that was unaware that the court would be unlikely to enforce an outstanding remedial order.
443. Because I believe that a clear majority of courts defer to defendants, I recognize that the possibility of a court ordering additional remedial measures opposed by the defendants is slim. See Parker, supra note 25, at 534-39.
444. See generally Section II, supra.
445. See supra notes 132-45 and accompanying text.
446. See supra notes 117-18 and accompanying text.
447. Rather than take the judicial route, an aggrieved individual also has the option of filing a complaint with the Department of Education, Office for Civil Rights (OCR). See 34 C.F.R. 100.7(b) (1999). While administrative proceedings before OCR may be an effective avenue in some situations, I would not advocate abandoning the judiciary all together. OCR's enforcement powers are generally limited to conciliation, and the complaint process focuses typically on an individual situation, rather than the systemwide focus of school desegregation litigation. See id. at 100.7(d). Compliance reviews, which reach systemwide issues, are few in number. See U.S. DEPARTMENT OF EDUCATION, OFFICE FOR CIVIL RIGHTS, ANNUAL REPORT TO CONGRESS (1998) (estimating that for the over 20,000 covered institutions, the OCR performed 100 compliance reviews for the fiscal 1998 year in the areas of age, disability, gender, and race discrimination). Further, the judiciary's unique institutional characteristics prove helpful in certain situations. See generally Chayes, supra note 33; Fiss, supra note 333.