The judge’s decision has been rendered in the contentious “stop-and-frisk” case in New York City, but a quote from Judge Shira A. Scheindlin’s decision in the case raised my eyebrows, because, taken at face value, it could possibly have a bearing on whether municipal schools can open next year in Shelby County. Here is the quote:
The Equal Protection Clause of the Fourteenth Amendment guarantees to every
person the equal protection of the laws. It prohibits intentional discrimination based on race.
Intentional discrimination can be proved in several ways, two of which are relevant here. A
plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally
discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of
race, and that the classification does not survive strict scrutiny. Because there is rarely direct
proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact
of the official action — whether it bears more heavily on one race than another — may provide
an important starting point.”
In other words, if I read Judge Scheindlin right, when a “facially neutral” law or policy has been applied in an intentionally discriminatory manner, it is illegal and unconstitutional. And the only proof needed of discriminatory intent is that the “impact” of the official action bears more heavily on one race than another. So the “facially neutral” municipal schools law in Tennessee may be found to have been applied in a biased way if it results in Black students being isolated in an all-Black school district. And the plaintiffs would need prove only that the municipal district adversely impacted Black students in Shelby County more than whites.
Does the formation of municipal schools in Shelby County violate Federal court orders pertaining to the rights of Black children to attend integrated schools? It certainly seems to, based on this quote from the Supreme Court’s holding in Cooper vs. Aaron (1958): In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” Smith v. Texas, 311 U. S. 128, 311 U. S. 132.
Now it is obvious that the formation of municipal school districts is not a DIRECT attempt at nullifying Brown vs. Board of Education. But it is the second phrase that is more concerning- “nor nullified INDIRECTLY by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” In other words, in the light of Cooper vs. Aaron, actions that would ordinarily be perfectly lawful and constitutional are not if they result in school segregation. And the courts in my opinion cannot merely look at how diverse the new municipal districts would be. By that standard, Millington, Bartlett and Germantown would likely pass constitutional muster, although I still am not sure how many of those communities’ current Black students actually reside in those towns. Arlington, Lakeland and Collierville will likely run into problems on the diversity issue within their own districts.
But courts in the past have also looked at the effect the new districts would have on the district that is being left behind, namely the Shelby County Schools. And nobody has denied that the net effect of the new districts will be to leave SCS almost entirely Black and Hispanic, which is a clear violation of those children’s rights under Brown vs. Board and related cases, including Northcross vs. Memphis Board of Education. The municipal district supporters claim their motives have nothing to do with race, and if that indeed is the case, they should be prepared to prove it in court, not only by agreeing to allow all students who currently attend suburban schools to continue to do so, but also by agreeing to allow a certain number of inner city Memphis children into the new districts. Both would greatly increase the likelihood of Federal court approval for the municipal districts. But I doubt that suburban residents will support either, particularly when a certain Arlington municipal booster is making threats to limit enrollment to Arlington residents only unless their district is given the school buildings for free.
The news that Carver High School in South Memphis and at least four other Memphis high schools are marked for closure by the so-called Unified School Board of the Shelby County Schools is just the latest indication of why Memphis should pull out of the “unified” schools and reconstitute their city school district instead.
The benefits that would accrue to having a single, county-wide school system were effectively lost as soon as a state law change made it possible for the suburban municipalities to form their own school districts. And although the county’s new school board has challenged the legality of the new municipal districts, they are fighting a losing battle. Money and white privilege always get their way in America, if not today, then tomorrow. And perhaps worst of all, those who objected to the unified district and support municipal schools for the suburbs were allowed to vote for the new “unified” school board and have representation on it. In other words, decisions about the education of largely Black children in Memphis are being made by white suburban board members whose own children will never enter a Shelby County School.
What is at stake here is far more than just schools. Along with churches, schools are the anchors of neighborhoods. They are the institutions that have helped shape communities like Orange Mound or Riverview for several generations, and it is basically impossible for suburban residents to understand the deep attachment that these areas have to their schools. Closing them will hasten the deterioration and decline of neighborhoods, and will also increase unrest in the schools that remain open, as children from schools with traditional rivalries are suddenly forced together into one building. Many jobs, both in teaching and support staff will be lost. Children will lose opportunities to play an instrument, sing in a choir, or participate in competitive athletics.
There is something that Memphis residents can do. They can demand that no schools be closed without the consent of the students and parents affected, and plan to organize a city-wide student boycott if the board goes ahead with the closings. But more to the point, Memphis residents need to ask Mayor Wharton and the city council to take steps to enable Memphis to withdraw from the Shelby County Schools. There is no point in pursuing “unification” with people who have made it plain that they wish to be separate. At least a municipal school district in Memphis would be under the control of a board elected by Memphis residents alone, and that is what is needed.
Local Memphis media this past week has been reporting that the Fifth Circuilt Court of Appeals overturned Judge Bernice Donald’s ruling continuing federal oversight of Shelby County Schools, and declared the school district unitary (a fancy legal term for integrated or free of discrimination). White response has of course been positive, but I have to choke back a laugh and wonder how the courts can ignore what is painfully obvious for all to see. Previous court decisions have said that “unitary” school systems should not have schools identifiable by race. Southwind High School in southeast Shelby County on paper is 80% Black. I say on paper, because in reality, I am reliably told there are no white students in attendance. The 20% white enrollment has either fled the district or attends private schools. Shadowlawn Middle School had a 65% Black enrollment last year, and has an 80% Black enrollment this year. Keep in mind that all of this is occurring in a school district serving a population that is overwhelmingly white (the Shelby County Schools serves only that portion of the county outside of Memphis). For there to be majority-Black schools in suburban Shelby County, one has to be trying to have majority-Black schools, and that is exactly what is happening. The county school board draws boundaries in such a way as to limit contact between white and Black children in the public schools. The removal of court supervision leaves no one “minding the store” with a district that blatantly violated the law while they were under court supervision. When someone defies the law while enforcers are watching, it is ludicrous to remove the supervision and expect that they’ll do the right thing. The sad fact is, neither Memphis nor Shelby County has ever done the right thing when it comes to Black people.
The problem with the Memphis City Schools is not that the school board is elected. The problem is not that this elected board chose a superintendent. The problem is not even that some members of that board felt that the primary qualification of the new superintendent should be Black skin. The problem is not simply money, although that is part of it. Even if Mayor Herenton got his way, and now had the right to appoint both the school board and its superintendent, and even if an anonymous donor gave or willed a billion dollars to the Memphis district, we would be faced with the fact that the Memphis City Schools, being nearly all-Black, cannot prepare its students for a world that is increasingly diverse. Add to that the problem of crumbling, outdated buildings and Memphis’ declining tax base, and you get a recipe for educational and social disaster. There is an answer far better than Herenton’s power grab, and it is simple. There should be only one school system in Shelby County, and it should be the Shelby County Schools. Memphis will never again have the tax base to adequately fund a large, urban school system, and even if it could, it is unfair to African-American children to shunt them off into all-Black, segregated schools, even under the pretense of separate school districts or “neighborhood schools.” Just because the neighborhoods are in awful shape should not consign the young people there to a hopeless future. It is time to put responsible people in charge of all public education in Shelby County and to start worrying about children and not politics or skin color. For those who constantly worry about race, it happens to be Black children who are bearing the brunt of the leaders’ irresponsibility. If we don’t do something soon, our whole region faces a very dark future.