What can the region's school desegregation program legally do to make it last longer? | St. Louis Public Radio

What can the region's school desegregation program legally do to make it last longer?

Jun 17, 2016

School officials could extend the life of St. Louis’ interdistrict desegregation program indefinitely by switching from racial to economic transfer criteria. 

That is the consensus of education and legal experts here and around the country. 

Richard D. Kahlenberg, a school and desegregation expert at the non-partisan Century Foundation, said the Voluntary Interdistrict Choice Corporation (VICC) should reinvent the program based on an economic approach, rather than winding down the program to avoid a legal challenge.

St. Louis' desegregation program is the longest-running in the country. It is due to wind down in a few years, but experts say it could last longer if it switches from race-based to economic-based criteria.
Credit Flickr

The change is important, he said, in order to extend the life of the nationally recognized program, which has generally higher achievement scores and higher graduation and college-attendance rates than the St. Louis Public Schools.  

“I want people in the St. Louis area to be fully aware that there is a third way on this issue. There is a path that doesn’t continue the program as it is but doesn’t involve discontinuing it. This program has been a real important effort by St. Louis, and I don’t want it to fall by the wayside,” Kahlenberg said.

Nationwide, over the past two decades, the number of schools that have implemented economic integration plans has jumped from two to 91. And now the U.S. Department of Education is putting a new emphasis and added funds behind economic school integration.  

Education Secretary John King Jr. has proposed $120 million for the Stronger Together program to “support districts with strong voluntary, community-developed plans that increase socioeconomic diversity in their schools.”   

Kahlenberg added: “There is a lot of social science research that shows if you want to raise achievement of students, the most important indicator is the socio-economic status of classmates, not the race. The research indicates that black students integrated into schools with lower economic status didn’t make the achievement gains of blacks integrated into schools with higher economic status. 

“It is an advantage to be in a school where your peers are high achieving and expect to go on to college and to be in a school where your classmates have large vocabularies and where parents are actively involved in school affairs and keeping an eye on what’s happening,” he said.

Kahlenberg also noted that economic integration translates into racial integration, which has independent value.  "Schools are about more than raising test scores," he said. "We also want them to develop tolerant citizens."

David Glaser, executive director of VICC, said the superintendents of the participating districts have discussed moving to socio-economic factors. Glaser said VICC’s lawyer, Mark Bremer, had told him that the change could be made by an amendment to the 1999 desegregation settlement agreement that extended the life of the transfer program. All parties to the settlement agreement would have to agree to the change, but that is in the realm of possibility, officials say.

Nationally significant

The St. Louis-St. Louis County program is the biggest, most expensive, longest-running, cross-district desegregation program in the country. Since the program began in 1983, 60,000 students have crossed boundaries in search of better educational opportunities. Most of the transfers have been African-American students from the city integrating what would otherwise be all-white or predominantly classrooms in St. Louis County. A smaller group of white students from St. Louis County crosses into the city for magnet and charter schools.

In the beginning, suburban school districts accepted black students from St. Louis Public Schools  to avoid being found complicit in the segregation of city schools. The federal court ordered the state to pay for the transfer plan because it is the primary constitutional wrongdoer, having at one time segregated schools by law.

John Ashcroft and Jay Nixon, when they were Missouri's attorneys general,  tried for the next two decades to end the program, but without success. Then, in 1999, lawyers, elected officials, civic leaders and educators developed a settlement to extend the program into the future. Dr. William Danforth, former chancellor of Washington University, led a civic effort on behalf of the program, which he had found to be important in stimulating higher graduation and college attendance rates.

At the time of the settlement, some parties said the agreement would wind down the desegregation program, noting that suburban districts were allowed to accept fewer and fewer students and then pull out of the program when they wished.

The NAACP’s Washington lawyer, the late William Taylor, took a different view. He said repeatedly in 1999 that the program could continue “indefinitely.”

The year 2036

Over the ensuing 17 years, the program has decreased in size, from about 14,000 students to about 4,500, largely due to suburban districts withdrawing from the program or reducing the number of transfer students they accept. Demand for the program remains strong; 3,000 city students having applied for 650 places this coming year.

Although the number of students involved has decreased, the VICC board has already approved two five-year extensions of the program and appears ready to approve a third extension next school year. New students would be limited to siblings to further wind down the program.

Few people would have predicted in 1999 that the program would be heading toward a third renewal. Even if it is the last, a kindergartner who enters the program in 2024 would not graduate until 2036 — more than half a century after the program began.

If Kahlenberg and local supporters persuade VICC to switch to economic transfer criteria, the program would not have to wind down at all.

Kelvin Adams, superintendent in St. Louis, could be an influential player in that decision. If he thinks the switch is good for city schools, the county districts would probably go along, officials say. But if he thinks city schools would be better off with all the city students back in the district, his view would probably prevail.

Adams has said that any changes in the basis of the program are far in the future. “Right now it's a race-based desegregation program,” he said recently. “The question becomes, does it continue to exist past this, but not based on race? And I think that's a decision way, way, way, way down the road. Some other people will probably make a decision about it, not us.”

What’s the law say?

VICC’s Glaser has explained that the transfer program is winding down because race-based programs cannot legally continue “in perpetuity.”

Some experts question the legal analysis.

That “in perpetuity” language is from a 1991 Supreme Court decision involving Oklahoma City in which the court said desegregation court orders could not continue “in perpetuity” especially after the causes of segregation had been eliminated. The court emphasized the importance of turning the schools back to local officials.

But the Oklahoma City decision might not apply to St. Louis, legal experts say. First, the 1999 St. Louis settlement agreement is not a court order like the one in Oklahoma City; it is a settlement. Second, the St. Louis settlement agreement returned the schools to local and state officials and ended direct court supervision — also contrary to Oklahoma City. And third, the courts in Oklahoma City had declared the schools “unitary,” a legal term that means the schools are desegregated. By contrast, the St. Louis schools have not been declared unitary.

VICC’s Glaser responded: “If you get two lawyers in a room you will get three different opinions.” 

Glaser said that Bremer told him he felt comfortable with three extensions of the program because the Supreme Court has talked about race-based programs lasting around 25 years.  

Washington University law professor D. Bruce La Pierre thinks it's too soon to wind down the desegregation program
Credit Courtesy Washington University Law

D. Bruce La Pierre, the Washington University law professor who served as the court’s special master who brought suburban districts into the plan in 1983, said in an interview that it is premature to begin winding down the program.

The 1999 agreement “is a court settlement, not a consent decree. The parties have agreed to it. I would wait until someone sued before I started thinking about dismantling it,” La Pierre said.

“If it is working from everybody’s perspective, the question is … whether the settlement is continuing to do what it was supposed to accomplish … whether the program is functioning well, serving families and whether the parties are happy.”

There is no telling whether the general statements in the Oklahoma decision or a more recent 2007 Supreme Court decision involving the Seattle and Jefferson County, Ky. schools apply to St. Louis without going to court, La Pierre said.

In Oklahoma City there was a court decree and declaration of unitary status. The same was true in Jefferson County. Seattle never had segregation by law. So all three cases are different from St. Louis where the court-approved settlement agreement ends court supervision but does not contain the unitary declaration that the schools are desegregated.

These characteristics make the St. Louis settlement unique and harder to challenge in court, lawyers say.

One other question is whether a Supreme Court without the late Justice Antonin Scalia would still follow the fractured, conservative decisions of Oklahoma City, Seattle and Jefferson County. There may no longer be five votes for that view.

“Is (the St. Louis agreement) vulnerable?” La Pierre asked, rhetorically. “Maybe. But when you are vulnerable and you like it, you defend it. I wouldn’t be cowed by a lawsuit.”

Pacific Legal Foundation suit

The conservative Pacific Legal Foundation is directly challenging the race-based transfer provisions in a lawsuit on behalf of Edmund Lee, an African-American third grader who wants to continue to attend a charter school in the city — the Gateway Science Academy — even though his parents moved to Maryland Heights in the suburbs.

State law says a suburban student can attend a city charter school if “eligible” to attend a city school under the transfer program. Only white students are eligible to cross from the county into the city because black students transferring to the city generally would decrease racial desegregation in the suburbs. In Lee’s case, however, he increases the integration of Gateway.

In the lawsuit, the Pacific Legal Foundation said that it is the transfer program’s unconstitutional racial transfer criterion that blocks Lee from attending the school of his choice.

But Michael Wolff, the Saint Louis University law dean who helped work out the details of the 1999 agreement, said the settlement agreement’s racial transfer criterion may not be unconstitutional in the case. What may be unconstitutional is the later law determining which county students could go to charter schools. Charter schools did not exist when the 1999 agreement was reached.

Former Saint Louis University Law School dean Mike Wolff helped work out the details of the 1999 agreement that allowed St. Louis' desegregation program to be race-based.
Credit Courtesy Michael Wolff

One extraordinary element of the Pacific Legal Foundation’s court argument is that it not only says the 1999 agreement is unconstitutional for relying on race alone, but that the entire St. Louis transfer program has been unconstitutional from the beginning because the federal courts here did not apply a strict enough constitutional test to the city-county program.

At the time the program began, Attorneys General Ashcroft and Nixon repeatedly asked and failed to get a Supreme Court review. In a sense, the Pacific Legal Foundation is asking the courts to retroactively rewrite history. 

If VICC switches to economic transfer criteria, it not only can avoid this legal argument, it can also continue a vibrant program as long as it thinks it serves the children’s education needs, Kahlenberg said.