Obstacles and Wrong Turns on the Road from Brown: Milliken v. Bradley and the Quest for Racial Diversity in Education

Twenty years after Brown v. Board of Education promised racial desegregation in public schools, the Supreme Court's ruling in Milliken v. Bradley dealt a sharp blow to the hope that remained for integrated classrooms. Racial segregation continues to plague our system of public education, and will do so for the foreseeable future, thanks in large part to Milliken and its progeny. This article (1) recalls the state of interdistrict remedies for racial segregation before Milliken I, (2) traces what the Court did in that case, (3) identifies three faulty routes that led the Court to make interdistrict remedies nearly impossible to obtain, (4) examines the case's lasting effect on public education, and (5) looks to higher education as the tenuously held last bastion of hope for racial desegregation in American schools. Under the restrictive mandate imposed by Milliken I, interdistrict remedies for racially segregated schools are allowed only where three elements are present: (1) the record supports a finding of unconstitutional action by the suburban districts, (2) segregative actions in the urban district produced segregated suburban schools, and (3) the State drew school district lines based on race. Unless the plaintiff can show each element, district courts have no authority to remedy one racially disproportionate district in a way that affects another. Three misguided routes led to the Court's debilitating decision in Milliken I: First, the requirement of proof of purposeful discrimination by the suburban district as a precondition for an interdistrict remedy confuses issues of right with issues of remedy. Second, by treating local school boards as constitutionally distinct entities, rather than as state actors, the Court confused localism with federalism (and seemed to forget that the Fourteenth Amendment trumps issues of federalism). Third, the Court inappropriately limited district court judges' equitable power to fashion whatever remedy is necessary to secure the right that has been denied. The Milliken I blow was softened slightly by the Court's holding in Milliken II, allowing for modest compensatory programs in a narrow class of cases. However, the Rehnquist Court effectively closed this door in Missouri v. Jenkins when it struck down a district court's use of its compensatory authority to create magnet programs that would help achieve racial integration by enticing white, suburban students into inner city schools. The Milliken-Jenkins double blow to efforts at desegregation is essentially irreversible at the K-12 level. Because legislatures are unlikely to implement a shake-up sufficient to achieve true integration of urban public schools, we must look to higher education in hopes of finding the integrated classroom promised in Brown. The article thus concludes with a discussion of Grutter v. Bollinger, noting that we must prevent the process concerns that stymied Brown from likewise derailing educational affirmative action. Looking beyond the issues of academic freedom that underlie Grutter, the case carries remedial significance in that it presents a final source of hope for a remedy for past racial discrimination in education.