Abstract
Bravely tackling what has been one of the most contentious issues policymakers and scholars have addressed over the past seventy years, in The Crucible of Desegregation: The Uncertain Search for Educational Equality R. Shep Melnick has authored a masterful book about the history, politics, law, and social science of racial desegregation in U.S. public schools. Scholars, policymakers, lawyers, and judges interested in U.S. education policy and racial inequality should read Melnick’s book, as should all who seek to understand the growth of, and consequent backlash against, what the author refers to as the “expansive [U.S.] civil rights state” (p. ix).
Providing four interrelated reasons for writing The Crucible of Desegregation, Melnick promises to provide evidence to support three major themes and makes good on that promise. He provides a detailed and nuanced reexamination of the history, law, policy, and politics of school desegregation from the Supreme Court’s 1954 Brown v. Board of Education decision up to the present and offers it to provide partial understanding of “how the American political regime has dealt with the country’s original sin of racial oppression” (p. x). He makes clear our individual and collective responsibility to think far more deeply about what is meant by “desegregation” and to appreciate the leading role that desegregation played in building the institutions of the post-Brown federal civil rights state.
Melnick argues that the “structural injunction” through which federal trial court judges, aided by Special Masters and diverse education and social science experts, sought to guide, manage, and monitor myriad aspects of local public–school systems became a template for building the institutional capacity of the civil rights state. At the same time, he shows how decentralization of U.S. school systems, combined with decentralized decision–making by diverse federal judges and a Supreme Court and federal education agencies that sometimes worked in concert but sometimes at cross purposes, created enormous difficulties of institutional capacity. This also led to great difficulty in teasing out, from patterns of aggregate impacts that frequently made little sense, the nuanced consequences appropriately assigned to diverse types of desegregation outcomes for different subpopulations under different conditions.
As does much interdisciplinary law and society scholarship, Melnick shows that understanding the impact of desegregation, including on racial isolation, Black students’ self–esteem, Black (or minority)-White educational achievement and income gaps, racial disparities in school discipline, propensity to drop out and/or be caught up in the criminal justice system, and how desegregation influenced schools’ racial composition in the South versus elsewhere, requires in–depth tracing of the myriad mandates that individual federal judges, each confronting unique local circumstances, placed on school systems. While Melnick treats the role of social scientists and social science evidence as one aspect of the issue of judicial capacity, he could easily have emphasized the role of social science in making desegregation law as a separate theme.
Indeed, Melnick’s book provides a valuable resource for those seeking an overview of the social science theories and research informing the desegregation debates and influencing the trajectory of desegregation law. Among the things we learn is how and why accumulating more data and data analysis led to less consensus among social scientists. Though Melnick does not draw explicit attention to this, reading about “contact theory” and “transmission of values theory” in tandem shows that the two contradict each other. The first requires equal status interaction to produce its benefits, whereas the second requires cross–status interaction between middle–class white and lower–class minority students. This in turn emphasizes a theme Melnick does make explicit: the need to distinguish the variety of potential outcomes we might want desegregation to accomplish.
Also emphasized are what Melnick describes as two alternative interpretations of the meaning and goals of desegregation, of what counts as policy success versus failure, and of the extent of that success versus failure. As with other areas of civil rights law, including employment, these are the color–blind versus color–conscious interpretations.
Looking to Chief Justice Warren’s opinion in Brown II, those championing the color- blind perspective wanted pupils assigned to schools on a non–racial basis. They presumed that once the federal courts dismantled de jure segregation so that previously “dual” school systems were now “unitary,” this could and would be done. Bitter administrative and judicial experience with Southern intransigence and the ease with which Southern school districts evaded desegregation requirements expressed in the legal language of good–faith efforts promoted emergence of the color–conscious approach. Color-consciousness required desegregation “by the numbers.” Especially when promoted through busing and used to counter housing segregation that led to de facto racial segregation of neighborhood schools, color–consciousness to counter Black persons’ “racial isolation” sparked white backlash and failed to ensure that all children received quality schooling.
Neither those who promoted color–blindness nor those who promoted color- consciousness were sufficiently clear or consistent about how they defined or proposed to measure either desegregation or the ideal of equal educational opportunity that desegregation’s champions assumed desegregation would promote. Nor did they seriously inquire into the difference between desegregation and integration. Melnick also notes that desegregation “by the numbers” had bureaucratic appeal because it was more easily measurable than equal educational opportunity. However, demographic change, including a diminished white population and an increased minority population split among African Americans, Latinos/as and Asian Americans, made it unclear which numbers should be dispositive.
Melnick faults earlier social science for insufficient attention to these issues and outlines later scientific “catch up” and vociferous social science debates. However, he reserves his greatest ire for the Supreme Court and his greatest empathy for district court judges and federal administrators closer to the front lines of implementation. In the wake of Brown, the Supreme Court managed to be vague, contradictory, and ambiguous. It failed to define desegregation and integration, how the two might differ, and which of the two were appropriate goals. As well, it failed to define multiple other central constitutional terms, including unitary status. Yet it insisted unitary status was the criterion that, if satisfied, would permit or require federal judges to release school districts from desegregation orders. Memorably, Melnick titles the first section of his Chapter Eight, “The Supreme Court: Still Hazy after All These Years.”
Melnick might have mentioned, but did not, that scholars of Title VII—the employment title of the 1964 Civil Rights Act—demonstrate that ambiguity is not unique to civil rights in education. In employment, however, it is Congress that shoulders the blame for the initial failure to define discrimination in federal statutory law. In employment as in education, color–blindness versus color–consciousness are the two major legal–interpretive alternatives.
Overall, Melnick argues that contra the most prevalent prior “takes” on desegregation’s history, it is incorrect to presume that desegregation worked until halted by racist opposition or that desegregation succeeded in the South but lost its way when it abandoned the color–blind interpretation to deal with the consequences of segregated housing. He is explicit about not wrapping up his subject matter with a neat “grand plan to promote racial equality” (p. xiii). What he does do is offer a deeply thoughtful, even–handed, and synthetic narrative pertaining to the processes and impact of concerted federal law and policy efforts to desegregate U.S. public schools. Overall, the desegregation story entails trade–offs and unintended negative consequences, but also some successes. Provision of equal educational opportunity remains an essential but elusive goal for American democracy. There are no “silver bullet[s]” to obtain it (p. xiii).