The Big Picture: Five Legal Issues Have Changed the Face of Public Schooling in the United States. While Federal Courts Led the Way in the Earlier Cases, the Key Players Now Are State Courts, State Legislatures, and Congress

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The last half-century has seen dramatic changes in the legal landscape for schools. It is a daunting task, and one that requires some subjective judgments, to generate a list of the most important legal developments. However, five legal developments have had, or will soon have, the most significant systemwide effect on schools and school districts: desegregation, school finance reform, school choice, No Child Left Behind, and publicly funded preschool.

DESEGREGATION

Brown v. Board of Education, decided in 1954, remains the most famous case in education law. (1) Brown struck down laws that segregated students by race, declaring that separate schools were inherently unequal. Many hoped that the internment of intentional segregation would inevitably lead to integrated schools. That hope proved hollow.

Little integration occurred during the first decade after Brown, as Southern states either ignored the decision or engaged in token compliance. Integration increased with the advent of busing and passage of the 1964 Civil Rights Act, which allowed the federal government to intervene in desegregation cases and withhold funds from schools that refused to integrate. But those gains have disappeared. Schools today are as segregated as they were before busing. Currently, more than 70% of black and Hispanic students attend predominantly minority schools; more than 30% attend schools that are greater than 90% minority. (2)

The Supreme Court itself is partially to blame. Just a few years after authorizing busing, the Court ruled in 1974 that the buses, absent extraordinary circumstances, could not cross district lines. (3) This decision effectively halted school desegregation because it meant suburban students would not be bused with city students. Because most cities, by the mid-1970s, were predominantly minority and most suburbs predominantly white, busing within single school districts accomplished little integration.

In the 1990s, the Court continued to cut back on court-ordered desegregation, issuing three decisions that essentially told lower courts to dismantle desegregation decrees. (4) Many districts, freed from court oversight, returned to neighborhood school assignments, which increased school segregation because of continued residential segregation. However, a few districts continued efforts to integrate schools even after being released from court oversight, as did other districts that were never under any order to integrate.

Even these sporadic, voluntary efforts proved too much for the Court by 2007. In Parents Involved in Community Schools v. Seattle School District No. 1, the Court, in a fractured opinion, established fairly strict limits on the ability of school districts to use race when assigning students, even when the purpose is to integrate rather than segregate schools. (5) The decision left some room for districts interested in promoting racial integration, but these districts essentially must use indirect, race-neutral means to achieve integrated schools.

Most school districts, even before Parents Involved, had given up on racial integration, either because the goal wasn't popular or because it was impossible in light of student demographics. Parents Involved will only enhance this trend. More than a half-century after Brown, court-ordered desegregation is all but dead, and voluntary integration plans are hamstrung by legal requirements that make it easier to leave racially isolated schools alone than to do something about them.

The failure to produce schools integrated by race has also meant the continued existence of schools of concentrated poverty. These schools, especially those in urban areas, have remained the single greatest challenge in education law and policy, and all of the reforms below are in one way or another responses to the seemingly intractable problem of concentrated poverty.

SCHOOL FINANCE

School finance litigation began in the late 1960s, at a time when many advocates were growing frustrated with the slow and uneven pace of school desegregation. …