Can State Constitutional Provisions Eliminate De Facto Segregation in the Public Schools?

Abstract

This article analyzes whether state constitutional provisions can be used to compel a state to eliminate de facto segregation in public schools. It first explains how the U.S. Supreme Court's refusal to find that de facto segregation violates the Equal Protection Clause of the Fourteenth Amendment has forced the federal judiciary to withdraw from school desegregation. It then analyzes the arguments made by social scientists and African Americans against school desegregation. It also examines Sheff v. O'Neill, a 1996 decision in which the Connecticut Supreme Court held that de facto segregation violates the state constitution. Finally, it discusses important implications for litigation in other states. More than 45 years after the U.S. Supreme Court held in Brown v. Board of Education of Topeka, Kansas (1954; Brown I) that state-sponsored public school segregation violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, African Americans are experiencing an increase in public school segregation (Orfield, Bachmeier, James, & Eitle, 1997; Orfield & Eaton, 1996). The Supreme Court has helped to resegregate the public schools by permitting the federal judiciary to implement desegregation decrees to eliminate de jure segregation but not de facto segregation (Orfield et al., 1997; Orfield & Eaton, 1996). De jure segregation of the public schools arises from the intentional actions of governmental entities (Keyes v. School District No. 1, Denver, Colorado, 1973; Swann v. Charlotte-Mecklenburg Board of Education, 1971). De facto segregation is caused by other factors such as private choices (Freeman v. Pitts, 1992; Keyes v. School District No. 1, Denver, Colorado, 1973). The Supreme Court has used this distinction to forbid district courts from including suburban districts in city school desegregation decrees and to permit district courts to withdraw from overseeing school districts that had committed de jure segregation. Although social scientists and many African Americans have questioned the efficacy of school desegregation remedies, this policy is the best means to protect the interests of African American students and to develop an integrated society (The Desegregation Dilemma, 1996; Orfield & Eaton, 1996). As the federal judiciary withdraws from public school desegregation, civil rights organizations are beginning to use state constitutional provisions to desegregate public schools that are experiencing de facto segregation. A recent Connecticut case, Sheff v. O'Neill (1996), demonstrates that this strategy can be successful. In Sheff, the state supreme court held that the de facto segregation of the Hartford metropolitan school system deprived students of a substantially equal educational opportunity. The court distinguished its equal protection clause from that of the U.S. Constitution by noting that the state provision specifically forbids desegregation. Thus, the state constitution forbade de facto as well as de jure segregation. The court then required the legislature to take measures to dismantle such isolation. The state legislature responded by passing legislation calling for magnet schools, charter schools, and voluntary choice (1997 Connecticut Public Act No. 290, 1997). The Sheff case raises important issues for litigation in other states. First, plaintiffs in other states may not be able to base their challenges to de facto segregation on their state equal protection clause provisions. Besides Connecticut, only two other states have equal protection clauses that specifically forbid desegregation. Thus, other state courts may use Supreme Court case law as persuasive authority to conclude that their state equal protection clauses permit de facto segregation. School finance litigation provides a template for developing an alternative argument to challenge de facto segregation. Plaintiffs originally argued that the Equal Protection Clause of the Fourteenth Amendment to the U. …