Q&A: Civil Rights Lawyer Erika Wilson on How to Reignite Desegregation Efforts

From district maps reinforcing sundown towns to seceding cities, how segregation is perpetuated today & what legal frameworks can help.

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On the eve of the 70th anniversary of Brown v. Board, scholars revealed racial and economic segregation in American public schools has steadily increased throughout the last few decades.

The trend is unsurprising to lawyers and researchers familiar with the challenges of Brown’s implementation, who’ve sounded the alarm that the widespread practice of tying school assignment to childrens’ home addresses has perpetuated segregation.

But one civil rights and education law expert maintains a sense of optimism, offering new ideas for how courts and state legislatures can take on integration efforts.

“There's a whole lot that they could do if they wanted to,” said University of North Carolina law professor Erika Wilson, “but often states lack the political will.”

For years, Wilson, who teaches on and explores the intersections of race in education, has tracked how segregation has persisted. Across the country, modern school district boundaries mirror the boundaries of historical sundown towns, where violence and threat of bodily harm against Black families maintained all-white areas. Modern day school district lines today are legally allowed to mirror the historically racist boundaries.

Among other recommendations, she argues courts can and should take districts’ historical context into consideration when determining whether lines are discriminatory and infringing on student rights. States could also shift who is responsible for drawing lines, or use regional or county lines for districts, which would encompass more racially and economically diverse areas.

In an interview with Maybach Media, Wilson explores some ways segregation has taken on new forms, what states could take up today, and why abandoning integration to “just fix schools” for everyone won’t work in a vacuum.

This conversation has been lightly edited for length and clarity.

Maybach Media: What do you think is missing in the current conversation around desegregating schools? Especially as many districts around the country are about to consider closures or consolidations and might be looking at attendance zone lines?

It's a tough question, but I've thought about this. One thing I wish that people would consider about not just school desegregation issues, but education in general, is the importance of public education to a healthy and thriving democracy, especially a multiracial democracy.

We really didn't have a robust system of public schools nationwide until after the Civil War and Reconstruction, and that is in large part because the formerly enslaved and emancipated Africans made education a cornerstone of their efforts to become full citizens …. They understood, and I wish we understood as well, how important that is to cultivating citizenship on equal terms and allowing us all to live together harmoniously.

It's kind of a pie in the sky answer - but I do think it's an important one. We're seeing the rollbacks on public education, the push towards forms of privatization, at the same time as we're seeing a complete erosion of democratic norms and commitment to democracy – I don't think those are a coincidence.

Part of your work is explaining how violence maintained all-white areas and how district maps are now maintaining that exclusion. Can you talk about the ways that you've seen that violence shift over time to maintain these areas? Are there more quiet ways that you've seen play out?

One of the things I talk about is the way that violence becomes ensconced within geography. And how, at least with respect to schools, we think of geography as race-neutral, unattached from that history of violence against Black bodies in particular.

When you think about modern ways that this manifests itself, the rigid maintenance of school district boundary lines around areas that we know are formerly whites-only sundown towns are an example.

A less obvious example might be the way that we see zoning laws in these areas… they're not going to build the kind of multifamily housing or high higher density housing that would attract people who are not predominantly white and/or affluent.

Those are certainly examples of the ways the violence that was used to create these all-white areas continues unabated, in a way that's completely lawful, and in a way that people are hesitant to associate with forms of violence. Because it would implicate themselves in terms of their desire to move to the whitest areas with the best school districts.

I don’t know that you would use this exact term, but you’ve also written about new forms of segregation, like school districts in the south seceding from more integrated districts, which used county lines, under the guise of local control. Can you talk about the scale of these kinds of efforts and what sort of protections would have to exist to curb them?

It's hard to quantify from what I've seen, particularly with the secessions. Around 2000 to 2014, there was a ramp up in efforts and then a scaling back as it got a little bit more attention.

I do think that the scale is larger or at least increasing in the South as these particular school systems are released from desegregation orders. Even if they're still under existing desegregation orders, the people charged with enforcing them aren't paying attention. Suggested changes may go uncontested.

One of the things I wrote about was what was happening in Baton Rouge and St. George – just the other day St. George found a workaround. Rather than creating their own school district, they created their own city.

The next step will undoubtedly be to try and create their own school district.

So this is the other danger, and part of the reason why it's difficult to quantify scale. Even when there are protections put in place to stop things like secessions, there's immediately an attempted workaround. Whether it's what they did in St. George or attempted to do in North Carolina, where they tried to create these charter school enclaves that were essentially charter districts that would have the same effect as a public school district secession.

What I've tried to do is identify where it is happening, because usually what you see is copycat attempts. I wouldn't be surprised if what St. George did ultimately gets replicated in other places. Honestly, creating their own city is even worse than creating their own school district – that has even broader implications.

For tax revenues, policing, everything. The St. George example also gets at an idea you explore in your work, that high quality schools are scarce partially by design. In this current context, how do you see state legislatures taking desegregation up?

I like to remind people that states have plenary authority over public education. There's a whole lot that they could do if they wanted to, but often states lack the political will. We worry about campaigns, reelections, perceptions, all of those things. But in a perfect world where we could muster the political will, then there are a number of things that state legislatures could do.

The first I would suggest is rethinking the amount of authority given to school districts, particularly drawing school district boundary lines around municipal boundary lines. We take for granted that's the way it has to be, but it doesn't have to be like that.

Many of us don't live our lives confined to one municipality, particularly when you're in a metropolitan area with many neighboring municipalities. For example, I live in Durham but I work in Chapel Hill, I often drive [outside] for my son's sports. We don't live just confined to Durham, but the way that schools tend to work is that we confine [entry] based on these arbitrary boundary lines that don't make sense, to reinforce segregation and inequality.

States could decide, for example, that their primary way of distributing public education would be around regional boundary lines. They might take a group of municipalities and lump them together for the purposes of creating a school district unit. Those municipalities might share local revenues, they might assign children across municipal boundary lines, that sort of thing.

They could also read the right to education clauses in state constitutions differently to require more robust forms of funding, to suggest that any kind of secession, for example, would violate that right to education clause.

I've also heard this critique that it's difficult to challenge these systems that are dependent on geography because of the limitations of the equal protection clause and the EEOA of 1974, which states the neighborhood is the appropriate basis for determining school assignment. Could you walk through the new legal framework you put forth in your work, and what might be required to get there?

The framework I set forth is to really challenge this connection between racialized geography and school assignment.

When you look at a seminal case like Milliken v. Bradley, where the Supreme Court said that you could not bring in the suburban school districts to help desegregate the Detroit public schools because those suburban school districts didn't do anything wrong.

Well, that's just not true. As I note in the article, something like two thirds of the suburbs surrounding the Detroit public schools were sundown towns. They were quite complicit then in the segregated patterns that ended up happening with Detroit public schools.

The problem I'm suggesting is that from an equal protection perspective, there's no doctrinal mechanism to unearth that kind of connection between race and geography that would create a racially segregated pattern.

I suggest borrowing from the Voting Rights Act, which has this sensitive test of factors that it uses to suss out whether or not boundary lines should exist or persist. And I suggest that we borrow some of that framework to look and see when we should abrogate boundary lines for purposes of an equal protection challenge.

Similarly, I suggest that that framework could also be useful to legislators in deciding whether or not they want to maintain certain boundary lines if they want to, as I alluded to earlier, use their plenary power to rethink and redraw district boundary lines in ways that would be more racially and economically inclusive.

I wonder if we could spend just a moment with charter schools because they do have some parts of their enrollment policies that people have pointed to as promising, like, as you know, requiring a lottery once they're full or perhaps requiring some geographic quotas. Do you see charters more often being used as the example you shared before, to create exclusionary districts of their own?

It really depends.

We have a large contingent of parents of color who are flocking to charter schools. It says something about what the feeling is around some of the deficiencies of public schools. That being said charters were never meant to supplant a system of public education. Where we go wrong, I think, is having charters be the primary [school option] rather than supplementing public schools.

Their original intention was to be places of innovation where you could have some relaxed regulations and you would reach a smaller cohort of students. Well, that's being turned on its head so that charters … seek to be a primary vehicle of educating children.Some of the benefits of relaxed regulations, innovation, all of those things become detrimental when charter schools are the main thing in town, because charters can be places of exclusion.

For example, a charter school can basically lawfully exclude poor children, children with disabilities, children of color by using race neutral mechanisms to do so. Some charter schools may say we're not gonna offer free and reduced lunch. Well, that's going to cut out a swath of children who would depend on free and reduced lunch. Other charters might say we're not gonna offer transportation. Well, that's gonna cut out a large swath of children who need transportation.

A more sneaky way of doing it is that we have the specialized charter schools, let's say, a Latin charter school, a Montessori, an Afrocentric charter school, some of the theme charter schools are going to attract a certain cohort of students.

And if you have a combination of a special charter school like that and they don't offer free and reduced lunch and they don't offer transportation, then what you're going to get is a very specific kind of student who attends.

From that perspective, they can be exclusionary.

If we think about public education as a gateway to cultivating citizens for democracy, the exclusionary aspects of charter schools are very bad, in ways that are even more dangerous than private schools because people tend to believe that because charters are quasi public that they're doing the right thing. It’s just not always true. Some of these charter schools operate as exclusionary as private schools depending on some of the rules that are put in place.

It's great that charter schools do things like a lottery to ensure equity in terms of enrollment. Even those processes can be skewed in terms of information and symmetry to even sign up to be a part of the lottery. Some schools have requirements that you have to, for example, stand in line to put your kid's name on the list. Parents have camped out in order to do that, and what kind of parents can do that?

The saddest part to me is that we are resulting to a lottery to distribute forms of public education. The kind of education you get shouldn't be subject to the whims of a lottery.

Are there any efforts that you've seen successfully disrupt the significance of geography in school opportunity?

A while back in Nebraska, they made attempts at a regional school district. There was a voluntary component to it though, that didn't make it ideal. I sadly can't point to any area and say this is a model of how it should be done.

The one area I would say used to be a model is actually in Wake County, North Carolina. They have county based boundary lines, which means that all municipalities within the county are part of the school district. They used to have this really great socio-economic diversity school assignment plan that ultimately got shot down, because parents were upset and didn't like it.

Would you say that's usually where the efforts end? With failure of political will or the parent outrage, white parent outrage particularly?

Yeah, I think the parents are a huge driver of what ultimately ends up happening … there’s this idea that their child is being denied something … It's a mix of parents and special interests that pump up certain kinds of parents and use them to advance ideas that are meant to decimate public education. I've seen those explode in recent years.

Anything on your mind that I haven't asked you explicitly, or any areas you feel the media has ignored or misconstrued?

The question I get often is, given the reluctance of parents, particularly white parents, and the lack of political will, aren't we better off just trying to abandon notions of integrating schools and just fixing schools so that they are great schools for all children? Even if they end up being racially and economically segregated schools?

I think that's a fair question. But my response is that it's important that we not abandon the project of trying to get racially and economically integrated schools.

Throughout our very brief history in the United States, we have not seen a successful model of racially and economically segregated schools that really advances everyone because of the way that race operates in America. Segregation by design is going to end up connoting forms of inferiority. It's going to preclude necessary intergroup contact that we need to buttress a really flailing democracy.

The one time period in America where we can say that we actually try to have racially integrated schools, it worked. If you look at about 1968 to 1984, where we actually took seriously the legal mandate to integrate schools, what we saw happening is better cross-racial relationships. Reduction of the achievement gap score between Black and white. These are things that I think we lose sight of.

It might seem like there's some pathway to just fix schools even if they end up being predominantly white or predominantly Black or Latino or nonwhite schools. It doesn't work. A lot of focus goes on how it doesn't work for students of color, but it really doesn't work for white students either.

In the seminal Brown v. Board of Education, everyone's heard of the doll test that the court relied on to suggest that segregated schools make black students feel inferior. What people don't know is that the court was also presented with social science evidence regarding the harms of segregation for white students.

One of [the harms] that's important at this moment is that white segregation creates feelings of superiority, but moral conflict as well.

Having a group of inferior people – they struggle to reconcile that in ways that makes them more susceptible to authoritarianism and less likely to embrace democratic norms and ideals, which have the potential to disrupt their so-called superiority.

Almost everything that was in that social science research brief about the harms of white segregation is arguably coming to fruition today in terms of the way that democracy is unraveling.

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