July 8, 2004

Dear Judge:

Recently the Center for Equal Opportunity obtained a copy of a list compiled by the United States Department of Justice of school desegregation cases, one or more of which may be under your jurisdiction. I am writing to ask you to determine the status of any school desegregation case on your docket, and to take appropriate action on it. According to the list, there are literally hundreds of school districts that remain under court order for desegregation. This strikes us as a very odd situation, some 50 years after the decision in Brown v. Board of Education, and 40 years after Title IV of the Civil Rights Act of 1964 authorized and directed the Department of Justice to initiate and obtain full desegregation. If these school districts are not yet desegregated, then this is inexcusable. But if they are, then it is inexcusable that they are still under court order. Among other things, it would mean that these school districts would be barred not only from assigning students on the basis of neighborhood schools and assigning teachers on the basis of their respective, legitimate preferences, but it would also make it difficult or impossible to adopt reforms such as school choice, charter schools, or school vouchers. This state of affairs compromises the educational opportunities of all children—black, white, Hispanic, and Asian.

In recent cases, the Supreme Court has noted in strong language that the jurisdiction of the federal courts is limited both temporally and substantively to remedying intentional school segregation. For instance, in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 247-48 (1991), the Court emphasized that the decrees entered in school desegregation cases "are not intended to operate in perpetuity." Rather, "[f]rom the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." The Court went on to stress that "'necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.'" (Quoting Spangler v. Pasadena City Board of Education, 611 F.2d 1239, 1246 n.5 (9th Cir. 1979) (Kennedy, J., concurring).)

One might think that the defendants in the cases – usually local school districts – would urge termination of these cases once their original purpose had been achieved. Unfortunately, however, we know that in many cases the school districts themselves are not eager to reopen the cases, to review the remedies entered years if not decades ago, and to ascertain the current constitutional status of the formerly dual school systems. These orders have been a crutch for the local school boards, obviating the need for hard decisions regarding school reform, providing an easy excuse for poor academic performance, and justifying all forms of bureaucratic inertia. No one wants to open what is often seen as a political can of worms.

Not only is this situation contrary to Supreme Court decisions that make clear that these orders are supposed to be of limited duration, but these orders are also sometimes in tension with the recently passed federal No Child Left Behind Act. I am enclosing two news articles – from The New York Times and The Boston Globe – that discuss this point.

We understand that, accordingly, many judges have sua sponte reviewed the status of their school desegregation cases, to ascertain whether a continued judicial role exceeds their Article III authority. This course best honors the law, but it is also simply good case management.

The close and proper control of its docket is of course an important concern for any court. This is true for all litigation – a judge would wonder about the status of any 20-year-old case – but especially in matters touching upon the two constitutional imperatives implicated here: the Fourteenth Amendment's guarantee of an educational system that does not use racial or ethnic classifications, and the Tenth Amendment's promise of a locally controlled school system.

I attach a photocopy of those pages of the Justice Department's list that include those cases filed in your judicial district. Please note that this list includes only those cases in which the United States Department of Justice participated in some formal capacity; it does not include cases of like status brought solely by private parties. Neither I, nor apparently the United States Department of Justice, know precisely how many cases in your district fall into this category; perhaps you can determine this, too.

In any event, we would urge your honor to look into this matter – to see whether any of these cases are on your court’s docket (indeed, cases this old can fall between the cracks as judges come and go) and, if so, to satisfy yourself that your court’s continued supervision of the school system is legally justified and is achieving a unitary system. Either school districts have failed to desegregate, or school boards and students’ educational opportunities are being hamstrung by judicial decrees that should have been dissolved years ago. The time is overdue for the courts to ask the parties to show cause why these school districts should not be declared unitary, the cases dismissed, full authority for making educational decisions returned to the local school boards, and the federal judicial role to end.

I appreciate your willingness to consider this suggestion. Please note that neither I nor any organization with which I am associated is a party or amicus before your court or before any other court in a school desegregation matter.

Sincerely,

Linda Chavez

Enclosures