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Choice and Civil Rights

Forgetting History, Facing Consequences

Gary Orfield

The idea of school choice has a tangled history. It is an idea that has taken many shapes, under the banner of the same hopeful word, one that seems to have a simple positive meaning but embodies many contradictory possibilities. Choice has a thousand different faces, some treacherous, some benign. It includes the creation of charter and magnet schools, voluntary transfer programs under state and federal legislation, choice-based desegregation plans, transfer rights under No Child Left Behind (NCLB), and voucher programs. The distinctions and this history are important to understand because forgetting what has been learned about choice systems that failed means repeating mistakes and paying the costs. There is no reason to keep making that error.

The large-scale emergence of schools of choice is deeply related to the civil rights struggles of the second half of the twentieth century, on both the conservative and the liberal side. This book therefore brings civil rights back into the center of the debate about choice policies and alternatives, since both contemporary sides in the issue see offering better options to poor minority students as an essential goal of choice. The conclusions of a number of researchers suggest that although helping minority children is a central justification for choice proponents, ignoring the essential civil rights dimensions of choice plans risks compounding rather than remedying racial inequality.

WHAT IS EDUCATIONAL CHOICE?

School choice first arose as a major policy idea in southern states struggling over civil rights and was claimed by both liberals and conservatives. Much was learned through experiments in hundreds of communities about how different forms of choice worked. In recent decades, as the civil rights impulse has faded and its opponents have gained power, school choice has become increasingly separated from civil rights while being linked to different agendas. Yet the critical differences among types of choice have often been so obscured that few understand them. We need to sort out what we are talking about and connect the different plans to their consequences for students and our society. The stakes are high because educational inequality is intensifying while education is ever more critical in determining life chances, and the population of school-age children is becoming predominantly nonwhite.¹

Choice is a very seductive idea. In a society with a powerful commitment to individual freedom, religious pluralism, democratic government, and a market economy, the idea of choice has many positive resonances. We choose our religion, we choose our spouse, we choose many aspects of our lifestyle, we select what we buy, and we want to believe that we can choose our future. What could be more American than the freedom to choose your own school, or even to create a school? Freedom, creativity, markets, competition, attacks on old bureaucracies—all of these match elements of American tradition and the spirit of an era that's cynical about government, disappointed in social reforms, and dominated by business ideas.² It hardly seems surprising that all of the five most recent presidents, both Republicans and Democrats, have embraced choice as a major solution for educational inequality and fostered it through public policy.³ Not coincidentally, none of them has paid much attention to issues of discrimination.

President Barack Obama's administration actively used the economic disaster of the Great Recession of 2008-10 to strongly pressure states by offering desperately needed funds in exchange for policy changes, including a great expansion of charter schools in what it called the Race to the Top. There was little discussion of the fact that public school choice really isn't an American tradition, that only a handful of states had made large commitments to charter schools before the Obama administration encouraged them to do so, or that the evidence of charters’ educational benefits was very weak. Education policy since Ronald Reagan has been based largely on standards and accountability, sanctions, and market competition, setting aside earlier concerns about poverty and race.⁴

What do the choice plans really mean? What do we know about the conditions under which choice provides clear benefits for the children and communities that most need them? Under what conditions is it likely to fail? What kinds of policies are needed to ensure racial equity and opportunity in choice programs? This book addresses all of these questions.

Our huge, diverse, and decentralized nation produces a wide variety of educational experiments and policies, whose impacts can be compared and from which important information can be gleaned. We have now had a half century of very different experiments with choice. Although it still plays a modest overall role in U.S. schools, it is growing rapidly and is heavily concentrated in districts with many of the nation's most disadvantaged students and most troubled public schools. Many choice advocates argue that it is the most important solution for the problems faced by millions of students in poor minority neighborhoods with segregated, high-poverty schools that fail to meet state and federal standards. Abigail and Stephen Thernstrom, in their book No Excuses: Closing the Racial Gap in Learning, see choice as central to a solution: “Unless more schools are freed from the constraints of the traditional public school system, the racial gap in academic achievement will not significantly narrow, we suspect.” They say that since middle-class white families can choose their schools through the housing market, shouldn't poor black and Latino families have the same choice? Yet, it turns out, they want to offer those families not a choice to attend the schools in affluent suburban neighborhoods but instead just some choice, which is usually another segregated, impoverished school under a different management system. They say, “Every urban school should become a charter.”⁵ Civil rights advocates of choice often want a much broader kind of choice under very different rules.⁶

Too often choice has been assumed to be good in and of itself. In markets there are, of course, good and bad choices. And there are markets with strong rules of the game, as well as those in which deregulation leads to abuses. All of us who have lived through the Great Recession know that unregulated markets can produce very bad outcomes. At a time when there is a severe shortage of public resources in most states and communities, when poverty and racial isolation have grown, and when the consequences of educational failure have increased, it is critical to examine the evidence on how well various forms of choice are working, and for whom. It turns out that there is much less evidence in favor of some leading forms of choice than one might suppose from all of the enthusiastic advocacy for them.⁷ If some forms of choice divert energy and money from more beneficial reforms or actually cause additional harm, we need to know about it.

Three Presidents Affirm Choice through Charters

One reason for the rapid expansion of choice, particularly in the form of charter schools, is broad bipartisan support. President Obama took the most assertive federal move in mandating this form of choice in states that had had few or no charters. While speaking at the National Urban League convention in 2009, he justified using emergency funds through his Race to the Top program to strongly press states to fund more charter schools.

Now, in some cases [when schools fail], that's going to mean restarting the school under different management as a charter school—as an independent public school formed by parents, teachers, and civic leaders who've got broad leeway to innovate. And some people don't like charter schools. They say, well, that's going to take away money from other public schools that also need support. Charter schools aren't a magic bullet, but I want to give states and school districts the chance to try new things. If a charter school works, then let's apply those lessons elsewhere. And if a charter school doesn't work, we'll hold it accountable; we'll shut it down.

So, no, I don't support all charter schools, but I do support good charter schools... . One school called Pickett went from just 14 percent of students being proficient in math to almost 70 percent. (Applause.) Now—and here's the kicker— at the same time academic performance improved, violence dropped by 80 percent—80 percent. And that's no coincidence. (Applause.)

Now, if Pickett can do it, every troubled school can do it. But that means we're going to have to shake some things up. Setting high standards, common standards, empowering students to meet them; partnering with our teachers to achieve excellence in the classroom; educating our children—all of them—to graduate ready for college, ready for a career, ready to make the most of their lives—none of this should be controversial.⁸

President Obama was suggesting that charter schools were better than regular public schools, that they were a “new thing,” that deep educational problems could be solved by taking control from public schools and giving public funds to semiprivate local organizations, that success could be spread to many other schools, and that there was some kind of serious accountability in place for charter schools. He highlighted a few charters that had reported large gains and characterized charter schools as local, community-based efforts, even though there are growing firms deeply involved in managing many of them. He said that he was giving states “the chance” to expand charters, but he was actually strongly and successfully pressuring them by making this a precondition for competing for urgently needed federal funds to avoid massive cutbacks.⁹

Presidential support for charters has been bipartisan and enthusiastic for more than two decades. Obama's predecessor, President George W. Bush, praised choice and alternatives in his first State of the Union address, in 2001: “Schools will be given a reasonable chance to improve, and the support to do so. Yet if they don't, if they continue to fail, we must give parents and students different options: a better public school, a private school, tutoring, or a charter school. In the end, every child in a bad situation must be given a better choice, because when it comes to our children, failure is simply not an option.”¹⁰ Bush was carrying on themes developed by President Bill Clinton in his last State of the Union Address, in which he highlighted his support for expanding charter schools as a key educational gain: “We know charter schools provide real public school choice. When I became President, there was just one independent public charter school in all America. Today, thanks to you, there are 1,700. I ask you now to help us meet our goal of 3,000 charter schools by next year.”¹¹ Choice outside the public school system has been promoted as a major educational solution by leaders of widely differing political backgrounds. This movement is not the product of research showing that choice produces educational gains; that is usually simply assumed, even though research is, at best, mixed.¹² The debate is not about evidence—it is often about ideology.

No one who has looked at stagnant achievement scores and graduation rates or examined the reality of many public schools that serve communities of poor minority children can deny that these children deserve something far better than the schools they are assigned to.¹³ There are many public schools that have been officially branded as failures for years under No Child Left Behind and state standards. They daily confront the personal and community consequences of concentrated poverty and often find it very hard to attract and hold the qualified, experienced teachers these students badly need. Accountability policies have documented the students’ poor outcomes, but threats, sanctions, and many other reform ideas have failed to work. The achievement gaps have been virtually unchanged in the high-stakes testing and charter school era.¹⁴

The opportunity for students in these schools to enroll in much better schools would clearly be a benefit. Much of the publicity about charter schools assumes that they are the best way to provide such opportunities. Choice is attractive, usually does not cost much, and leaves those already satisfied with their schools undisturbed, just where they want to be. The politics and parent eagerness are not difficult to understand. Yet the questions remain: Do the common forms of choice help students learn more, graduate, go to college, become better citizens, or get good jobs? Are there better answers?

After half a century of unfulfilled pledges to fix the most troubled schools, we need to be sure that this is not another empty promise. Are we betting on something that has no net educational advantages and might even increase the already dramatic stratification of school systems that gives the best education to the most privileged families and segregated and inferior schools to the most disadvantaged? Markets and competition sound good, but a look at the kinds of grocery stores and health care services provided by the private market shows that competition has not provided quality in poor and minority communities equal to that available to middle-class neighborhoods, even with the substantial increases in their residents’ buying power provided by food stamps and Medicaid.¹⁵ Does school competition work any better? What kinds of choice are most effective?

Varieties of Choice

Analysts often say the devil is in the details when talking about whether or not a policy will work. Choice programs can differ in several fundamental aspects, producing major differences in the kinds of opportunities offered, who gets the best choices, and what the overall outcomes are. Choice can be within one school district or among school districts. It can be within public schools or between public and private schools. It can be open to all equally on the basis of interest, or choice schools can have admissions requirements, making the schools the choosers. It can have a plan for diversity or ignore the issue of segregation. Management can be nonprofit or for-profit. The program can provide free public transportation to chosen schools or require the family to provide its own transportation. It can offer genuinely beneficial choices of much better schools or limit choices to weak receiving schools. There can be good educational provisions for language-minority and special education children or there can be none. It can include subsidized lunches for poor kids or not. The receiving schools can feature strong professional faculties or inexperienced and untrained newcomers. The choice system can have strong outreach and counseling for all parents or limit its market to particular groups or neighborhoods. Special and unique magnet curricula may be offered or not.

All the combinations and permutations of these features mean that there are a great many kinds of choice and that the kind of choice offered matters greatly. Choice approaches cover the gamut from those likely to offer few benefits to children in poor communities to programs that could be of great value. In many voluntary transfer programs, few families understand their options, few transfer, and some transfer to even weaker schools. In Boston, however, thousands of families of color register their children years in advance for a limited chance to attend a strong suburban school system.¹⁶ In many cities where students in schools that fail to meet standards have the right to transfer, only one or two in a hundred do so, in part because there are few schools that offer truly superior opportunities.¹⁷ Choice is only meaningful as an educational reform strategy when better options are available and when the parents who need them know about them and are supported in making their decisions.

Is Choice an American Tradition?

Sometimes choice is discussed as if it were a basic American right, but it is not. Education is mandatory in the United States, it is a crime not to educate your children,¹⁸ and the vast majority of American students have long been assigned to a particular public school, not asked to choose their own. School districts and state regulations were created with the goal of professionalizing teaching and assuring that all children received access to the essential curriculum. Public schools were designed to serve communities, not individuals, and students were legally required to go where assigned, unless they left the public system for a private school or homeschooling.

Educational choice within school districts is no more an American tradition than choice about police or fire service. We don't have competing bus or garbage services or park systems. Public agencies were created to do things that were seen as essential, providing common services meeting uniform standards, and their rules were meant to staff them professionally, avoiding patronage, nepotism, and the misappropriation of public funds. In many cities, educational administrative standards and professionalization followed scandals and serious inequalities in decentralized and politicized schools. Administrative control by state and local education agencies was long seen as a good thing. This is still how almost all major suburban school districts are run, and in those settings, no one is proposing to change it. Both choice and the other currently preferred interventions—high-stakes testing, accountability, and sanctions—are applied most extensively in poor nonwhite communities with schools highly segregated by race and poverty, while these same interventions are almost irrelevant in affluent communities, which leave the traditional system in place because they are not pressured by policies forcing schools with low scores to change. The presumption is that since things are so bad in poor communities of color, policy makers should be free to impose their experiments there. And because choice is primarily aimed at troubled, segregated, impoverished urban school systems, this suggests that it is not advisable in already successful areas. It is therefore all the more important to understand the different forms of choice, their impacts, and why what is seen as such an important reform—even a right—is usually targeted and limited in this way.

THE HISTORY OF CHOICE AS A MAJOR EDUCATIONAL POLICY

The Linkage of Choice and Desegregation

The initiative for educational choice is deeply wrapped up with struggles over race and the decline of our central cities and their school systems. Choice was traditionally a rare exception: there have been a few special schools within public school systems for many years and, of course, a tradition of vocational-technical schools that dates back to the early twentieth century. But the vast majority of U.S. students have always attended schools to which local officials assigned them. Special elite schools like Bronx Science in New York, Boston Latin, Lowell High School in San Francisco, and the North Carolina School of the Arts were not schools that families were free to choose; these schools used examinations, grades, and other methods to choose their own students from among those who applied. The same was true of gifted programs within regular schools.

Although choice advocates often trace their origins to the market theories of Milton Friedman, and some mention the War on Poverty's choice experiments in Alum Rock, California, the real beginning of choice as a serious force in U.S. schools traces back to the struggle over the enforcement of Brown v. Board of Education in the 1960s.¹⁹ It first developed on a large scale as a strategy by recalcitrant school districts to respond to the legal demand by black families, backed by the U.S. Supreme Court in the 1954 Brown decision, for access to the better schools provided only for white students. Supporters of school segregation initiated both choice plans designed to leave segregation almost completely intact and voucher plans designed to permit white families and children to avoid integration. In Brown, the court found the school systems segregated by law to be “inherently unequal.”²⁰ State laws mandating total segregation were now void and change was needed.²¹ A leading southern federal court ruled shortly after Brown that the Constitution did not require desegregation of schools but instead only some choice for some black students to transfer to white schools.²² The Supreme Court left most decisions about desegregation plans to the lower courts for a generation. Until 1968 it did not define what kind of desegregation had to be achieved. Meanwhile, the debate raged, and the southern position was that the Constitution would be fully satisfied by providing a limited choice to transfer for those students. No one thought that whites in the seventeen southern states would chose to transfer to all-black schools, and they were right. Black students who transferred to white schools often found themselves a small, isolated, and unwelcome minority. A decade after Brown, 98 percent of black students were still in all-black schools.²³

Still, it became apparent that the South would not be permitted to blatantly defy any compliance with Brown. Southern leaders searched for ways to hold desegregation to a minimum, and the strategy known as freedom of choice was adopted across the region. Separate school systems with their separate student bodies and faculties would be kept as intact as possible. The black students who tried to get into white schools had to run a gauntlet of procedural barriers and their parents were often threatened within the community, and very few families were willing to face these problems.²⁴ The historically black schools remained absolutely segregated. Freedom of choice became, in reality, freedom to retain segregation.

Under the 1964 Civil Rights Act, which required that recipients of federal dollars end discrimination, in 1965 federal education officials set minimum civil rights standards for choice, including (1) a clear chance for every family to make choices each year, (2) a guarantee that these choices be honored, (3) a guarantee of free transportation to receiving schools, (4) a prohibition on transfers that would increase segregation, and (5) a requirement of fair treatment of new students in receiving schools.²⁵ Federal authorities who evaluated the results of freedom of choice in thousands of districts knew that real choice required strict preconditions. Though the result of these standards was a substantial acceleration of desegregation, black schools were still untouched, faculties were still segregated, and it became clear that much more would be needed to integrate the segregated school systems. In 1966 the federal government moved from a focus on process to a focus on outcomes, requiring a set level of progress in integration if choice was to be continued. Faculty desegregation was required. In 1968, the Office for Civil Rights simply set a deadline for the full integration of schools and faculties.²⁶ The federal courts similarly required actual desegregation rather than plans for choice. After the Lyndon Johnson administration started seriously enforcing Title VI of the 1964 Civil Rights Act, which prohibits discrimination in all institutions receiving federal funds, almost all southern districts began to desegregate, and the Fifth Circuit Court of Appeals in the Deep South adopted standards requiring comprehensive desegregation.²⁷ The Supreme Court, in its 1968 decision in Green v. New Kent County, held that constitutional requirements of full desegregation were not satisfied by a choice to transfer to white schools but required abolishing segregation “root and branch,” something that choice systems almost always failed to do.²⁸ These policies soon meant that the South had the nation's most integrated schools for black students, a record that lasted until 2004.

Northern Choices: Open Enrollment and Optional Zones

Another choice-based approach was common in big-city school systems, especially for students located in diverse or racially changing areas. In northern and western U.S. cities with significant black and Latino school enrollments, segregation had also been the norm. It was accomplished mostly through housing segregation, locating schools to maximize racial separation, drawing school-attendance boundaries and adopting transfer policies that segregated students, and assigning teachers in a segregated way. Virtually every city ever examined by a federal court in a desegregation case—including Boston, Buffalo, Cincinnati, Cleveland, Indianapolis, Minneapolis, and Omaha—was found guilty of such pro-segregation practices.²⁹

Although they claimed to be operating neighborhood schools, districts often drew boundaries along racial lines, ignoring the proximity of certain residences to particular schools, and changed the lines to preserve segregation as neighborhoods changed. Black or Latino children in overcrowded schools were regularly denied access to nearby white schools with space. As nonwhite populations in cities expanded, the Supreme Court struck down both laws that overtly segregated neighborhoods by race and laws that enforced restrictive covenants.³⁰ Minority communities expanded into sectors of previously white neighborhoods, leaving isolated pockets of whites inside minority neighborhoods and schools. To permit white students who happened to live in specified areas with heavily minority schools to transfer to white schools, many cities implemented optional attendance zones. Open-enrollment policies permitted families to transfer from those areas even if this increased segregation. These policies, of course, undermined integrated neighborhoods and sped the resegregation of their schools. Similar patterns occurred when unrestricted choice programs were adopted after the civil rights era.³¹ Earlier, federal courts had found the dominant forms of choice across the United States to be fostering or maintaining unconstitutional segregation. Choice was a strategy strongly linked to segregation.

Vouchers for Segregation

The first significant use of vouchers by local officials came when Prince Edward County, Virginia, closed its entire school system in 1959 to prevent integration. The Virginia state legislature had enacted a law that called for the closing of any school that began integration and the governor had closed schools in several districts to prevent desegregation, actions that both federal and state courts eventually held to be illegal. This left the leaders of rural Prince Edward County facing the likelihood that some integration would be mandated in their district. In response they implemented their plan that completely shut down public schools in the county and provided private school vouchers. New private white academies promptly hired faculties made up almost completely of former public school teachers and resumed teaching whites. The black community lacked the money and power to create and fund its own schools, so the black children in the county went without schools for five years. When the case reached the Supreme Court, the justices ordered the reopening of the public schools.³² During the oral argument on the case, Chief Justice Earl Warren responded to the county lawyer's arguments by saying that Prince Edward had provided African American children the “freedom to go through life without education.”³³ One could argue, as the county's lawyers did, that there was no racial problem, since anyone could have a voucher for whatever private school where they could enroll. The fact that there was no school for blacks showed one of the great flaws of the market approach. The vouchers were perfectly effective in preserving segregation and took away the only option black students had. It turned out that the market had an absolute barrier and provided them with no replacement options, creating absolute inequality.

Two fundamental lessons of the early civil rights era were that producing integrated schools almost never happens by accident in highly segregated communities with deeply rooted racial and ethnic stereotypes and fears, and that unrestricted choice or voucher systems are more likely to compound than to remedy segregation and inequality. If the burden is put on the victims of segregation to change the situation and the involved institutions are absolved of any significant responsibility, very little will happen. This was why strict conditions about choice procedures, transportation, and related matters were put into operation in enforcing the Civil Rights Act and why mandatory desegregation orders were found to be necessary to actually integrate the schools in many communities.³⁴

Magnet Schools: Combining Educational Choice with Desegregation

In the mid-1970s, however, educators invented ways to use choice to produce diverse schools and to minimize the conflicts that often came at the beginning of mandatory desegregation. The most effective combination of choice, educational innovation, and desegregation came with the development of magnet schools. The Supreme Court confronted the nation's cities with a massive challenge in the mid-1970s. In Keyes v. Denver in 1973, it ruled that if civil rights plaintiffs could prove intentional segregation in substantial parts of a city, there should be a presumption that the entire city was illegally segregated, and the courts should issue an order to desegregate it.³⁵ It turned out that there was enough evidence to trigger such orders in virtually every city where a suit was filed.³⁶ The Denver case also ruled that Latino students were entitled to desegregation remedies. But the court's decision came too late, at a time when many central cities’ schools were already heavily minority and had rapidly declining white enrollment as the white birthrate fell and many all-white suburbs were being built. This meant that full desegregation was not going to be possible within central cities—simply mandating that white students transfer to impoverished nonwhite schools was likely to speed their already well-advanced flight. The next year, in the Detroit (Milliken v. Bradley) case, the Supreme Court reviewed the finding of the lower courts that the only feasible remedy for intentional segregation would be a plan including the suburbs, which would increase the possibility for substantial desegregation, involve the region's strongest schools, and make white flight far less likely. When the court rejected this remedy 5-4, it left central cities facing massive problems.³⁷

The top answer that emerged was magnet schools. Educational leaders in Milwaukee, Cincinnati, Buffalo, and elsewhere came up with the idea of using special schools with unique programs, combined with active recruitment, to increase integration. The plans included free transportation and policies that tried to guarantee a specific and stable level of desegregation. Senators John Glenn of Ohio and Daniel Patrick Moynihan of New York, both of whose states had city districts that were ordered to desegregate, succeeded in enacting a federal aid program, the Magnet School Assistance Act, which helped rapidly spread the magnet school idea across the country. Massachusetts was an early promoter of magnet schools.³⁸ One of the key conditions for receiving help was that the proposed school was part of a desegregation plan. Magnet programs expanded rapidly, even in the conservative 1980s, reaching 2,400 schools and more than a million students by 1991, and were highly concentrated in large cities.³⁹ Magnets came a generation before the charter schools of the 1990s and were (and remain) by far the nation's largest program of school choice. Magnets with civil rights policies provided answers to the segregating tendencies of unlimited choice while still greatly expanding parental choice and creating a level of integration that was broadly acceptable across racial lines. After the Reagan administration, however, these accomplishments received little attention.

Magnet schools have had a curious history, related to changing political and legal currents. They emerged and spread rapidly in the 1970s, when federal policy modestly subsidized and strongly encouraged them, but conservative administrations slashed the funds that supported them. Magnets were a singularly popular reform. There was great demand for the federal money set aside for them, and many districts financed their own, though they were slightly more expensive than regular schools because of the training and equipment needed to establish and operate distinctive educational programs. Federal funds were invaluable in covering the starting costs and special materials and training that many local school budgets could not. When funds were cut in the severe recession of the early 1980s, the momentum was broken.

Since both teachers and families were selecting these schools themselves and believed that they were getting something special, the problem in successful magnets often was dealing with disappointed people who wanted to enroll but could not. Another issue was that many magnet programs were opened within regular schools, which sometimes created apparent diversity in the school's enrollment statistics while hiding stratification and segregation within the school building.⁴⁰

Many magnet programs began with first-come, first-served admissions, and parents waited all night out on the street before their district's magnet offices opened. Those in the front of the lines had information, social networks with information about schools and procedures, intense desire, and the time to do this. Many policies—such as locating the most desirable magnets in segregated black and Latino communities—were designed to offset such inequalities, to ensure integration, and to increase information dispersal to parents in disadvantaged areas. Lotteries replaced waiting lines. Magnets intentionally created highly differentiated opportunities to stimulate parent choice, including Montessori schools and their special pedagogy, schools that offered advanced intense instruction in science or developed talents in dance or drama, highly disciplined traditional academies, and many others. The great assets of magnet schools as a class were considerable. They were voluntary, they created educational innovation and excitement, and they were attractive to many middle-class parents in cities that had few desirable schools. Magnet schools often reported higher educational outcomes even after controlling for other differences between those who attended them and those who did not.⁴¹

Choice through magnets has had both benefits and costs. Although civil rights policies can make such choice far fairer than it would be otherwise, it still tends to foster differences. It generates unequal schools and creates tensions as well as providing opportunities. On the other hand, in central city school systems with poor reputations and little ability to reform themselves or hold middle-class families of any race, they have offered positive educational alternatives and helped avoid conflict that can come with mandatory desegregation. Strong magnets can also be widely admired and genuinely diverse schools in cities that had been written off. Even if a district had only islands of high prestige—a few desirable integrated schools that parents were eager for their children to attend—that was better than simply becoming a ghetto school system for poor families who had no choices. The Detroit Supreme Court decision left cities with no options for equitable, uniform, stable, and educationally valuable desegregation across the larger metropolitan communities. Many cities in decline since suburbanization began in the 1950s, wishing to do something to offset this trend, found magnets to be their best option. The extent to which the creative possibilities were fairly available to minority students, however, depended on the strength of the equity policies behind them.

The problem was that as magnets expanded and some became extremely desirable, as the courts dropped desegregation plans, and as the idea spread that race-conscious strategies were not needed, there were increasing attacks on the magnets’ policy to set seats aside when necessary to guarantee diversity. Some parents who did not get their top choice sued. While the courts in the civil rights era subordinated such claims to the constitutional imperative of desegregation, increasingly conservative courts gave priority to individual rights, and the lessons of freedom of choice were forgotten. As the political climate and judicial appointments changed, there were more claims that the rights of white families had been limited. Under the 1991 Oklahoma City v. Dowell decision by the Supreme Court, many court orders incorporating magnet policies were dropped, and some school systems simply ended racial goals and desegregation controls, producing rapid resegregation in magnet schools.⁴² Magnet schools had balanced the tendency toward stratification inherent in choice programs with a set of civil rights policies. When those were lifted, the pressures toward stratification were no longer offset.

Besides their desegregation policies, the other issue that the emerging conservatism had with magnet schools was that they were part of school systems with too many rules, even though many had a great deal of autonomy. Federal policy switched between the Jimmy Carter and Reagan administrations, from active encouragement of desegregated magnet schools to very limited financing of magnets and no support for desegregation goals and then to advocacy of charter schools. Presidents Reagan and George H. W. Bush presided over twelve years of anti-civil rights administrations. Even though many magnets had a great deal of autonomy, critics began to attack them for their desegregation rules and for being part of public school systems.

As the courts changed and diversity plans were dismantled, lawsuits challenged the right of schools to hold spaces for underrepresented groups, and some federal courts overturned those policies.⁴³ New magnet schools were sometimes created without desegregation plans, solely to offer special schools. Magnets that were born with desegregation plans and had been integrated often dropped their plans and became more segregated, though a substantial fraction did not, as discussed in chapter 5.

Throughout the magnet experience it has been apparent that parents with better information do better. Ironically, without civil rights policies in place they tend to do much better, increasing inequality. No matter how many strategies for fairness were devised, it was clear that parents who had better information about and understanding of what often became complex choice systems in large school districts were more likely to get their children into the best schools and that parents with less education, fewer connections, and less understanding of the impact of more competitive and integrated schools were less likely to make a choice or have their children accepted.⁴⁴

Choice and competition for students, even for desirable ends such as lasting and substantial race and class desegregation, inevitably involve winners and losers among schools and reflect the unequal human capital and networks of different groups of parents. To the extent that these schools and programs are successful in becoming (or being perceived as) clearly superior, they can turn into not just means to an end but ends in themselves for ambitious parents, whose battles to get their children admitted sometimes challenge and defeat desegregation goals. Civil rights advocates understood the inherent problems of choice but also the great difficulty in finding ways to provide opportunities for minority children to access genuinely better schools while simultaneously attracting and holding more privileged families to produce the gains of class and racial integration. Given the difficult legal and policy constraints, magnets often became the best option if they could institute strong policies for equity.

Transfers and Controlled Choice

From the 1960s on a standard feature of a great many desegregation plans was the Majority to Minority (M to M) transfer plan, which permitted students to transfer only from a school where their race was the majority to one where it was the minority. In practice, this meant that black and Latino students transferred from segregated schools of their race to largely white schools. The numbers of such transfers were small, normally around 1 or 2 percent of those eligible. Another kind of transfer, beginning in the middle 1960s and spreading to only a few cities, was interdistrict transfer, usually from segregated central city schools to white suburban schools but sometimes to regional magnet schools in other districts serving the same metro area. Some of these plans have been very popular, but only those in St. Louis and Milwaukee reached numbers above a few thousand students, primarily because of the small number of suburban openings in most plans. And now both the St. Louis and Milwaukee programs have been reduced in scope in spite of substantial successes.⁴⁵

The last of the major efforts to use choice for desegregation was called, appropriately enough, controlled choice. A fully developed controlled choice plan was first implemented in 1981, in Cambridge, Massachusetts, right across the Charles River from Boston, which had experienced tremendous conflict in its 1974 school integration plan, which mandated the transfer of students to schools across racial boundaries. Controlled choice was designed to move decisively away from both a neighborhood school system and a mandatory transfer plan by requiring parents to look across the district and rank their top school preferences. Because all parents with school-age children were required to participate, making a choice did not require special initiative or knowledge of the policy. Students were assigned to their highest-ranked school that was compatible with the city's desegregation goals. The great majority of families received one of their top choices, giving them a sense of control and minimizing conflict without abandoning integration goals.⁴⁶ There were, of course, some who did not get a top choice and protested the plan, but the number of involuntary assignments was much lower than in mandatory plans. There were a number of other provisions designed to ensure equity, such as an information center that parents were required or strongly encouraged to visit to receive information and counseling about their options (this was also often an element of desegregation and magnet plans).

Controlled choice encouraged competition among schools and addressed the normal exclusion of parents who did not choose from good transfer opportunities. Boston and a number of other districts subsequently implemented it.⁴⁷ This was the last of the choice plans that were designed with civil rights goals in mind. In districts that had controlled choice for a considerable period of time, parents’ preferences for neighborhood schools declined sharply as they learned about other options. When the mandatory Boston court order was dropped after a more conservative Supreme Court authorized ending desegregation orders and there was a move to return to assigning students to their neighborhood school, strong opposition arose because a large majority of Bostonians saw these schools as weak, did not consider them a first choice, and did not want their children stuck in them.⁴⁸ As with magnet schools, the controlled choice experience showed that it was possible to use choice—with clear efforts to strengthen information dispersal and recruitment and put limits on segregative choices—to produce a good deal of integration with a minimum of community conflict and, at the same time, to create desirable schools.

FORGETTING THE LESSONS OF CHOICE PROGRAMS

If the central justification for choice in the late civil rights era was to create voluntary desegregation and equalize education through innovation, the choice programs that have come to the fore in a more conservative era have often been hailed not as means to an end but as solutions to failing urban schools without any reference to segregation or systemic barriers to choice. Conservatives who denied that the problem of failing schools was rooted in social inequality and systematically unequal schooling shifted the blame to families and school bureaucracies.⁴⁹ In contrast to civil rights advocates, who defined the central barriers to opportunity as racial discrimination, isolated poverty, and unequal education, the backers of newer plans—vouchers and charter schools—rested their claims on theories about the inherent inferiority of public schools run by large bureaucracies with strong teachers unions.⁵⁰ A school outside a public school system would, by its nature, be better. Bill Gates, whose foundation strongly supports charter schools, spoke to the National Charter Schools Conference in 2010, hailing the “great progress” of the movement and calling charters “the only schools that have the full opportunity to innovate” in a country where “the way we educate students ... has not changed in generations.” He said that public schools had received more funding over generations but had “poor results.” The country needed “brand new approaches,” and “that's the one thing charter schools do best.” As in a market, “it's imperative that we take the risk to make change.”⁵¹

Race and poverty were largely considered irrelevant, and many charter schools were intentionally established in impoverished minority neighborhoods, where families were desperate for any option and public schools were far less powerful than in the suburbs. Some were set up to serve only a particular racial or ethnic group, challenging basic elements of civil rights policy with the claim that they had special empathy for minority students, justifying segregation by race and poverty.⁵² The operators of charter schools also claimed that educational entrepreneurs—such as themselves—could solve educational inequality using competition and freedom from bureaucracies and unions. They ignored the related facts that choice without civil rights controls would increase segregation and that segregated schools were systematically less successful, the realization of which had been central to the development of choice policy in the 1960s and 1970s. Segregation was simply accepted as a given and not seen as a serious limit to equal opportunity. Free markets and ending public regulation and the power of teachers’ organizations would solve educational gaps.

From Magnets to Charters

Charter schools, invented in 1991, appealed to conservatives because of their autonomy and to moderate Democrats because they could help block the drive for vouchers, keeping funds in the public sector.⁵³ They had the advantages of little additional cost and none of the threat to the middle-class status quo that desegregation efforts posed, although the press often treated them as successful attacks on the status quo.⁵⁴ During the three Bush and two Clinton terms, as noted above, the priority in funding and advocacy shifted from magnets to charter schools, with funding for the former frozen during much of the George W. Bush administration. This continued under the Obama administration, in spite of the popularity of magnet schools and significant research showing that they resulted in gains on test scores even after controlling for the differences between their students and similar ones in regular public schools. In contrast, a series of major studies of charter schools conducted by the federal government, the Hoover Institute at Stanford, and other researchers showed no such advantage for charters, as discussed in chapters 6 and 7.⁵⁵

Minnesota wrote charter schools into law in 1991, which, by coincidence, was the same year the Supreme Court authorized the termination of all kinds of school desegregation plans and segregation began to climb steadily across the country.⁵⁶ The first U.S. charter school opened in St. Paul, in 1992. The idea rapidly spread, and by the 2009-10 school year there were more than five thousand charter schools in the United States.⁵⁷

The charter movement gained great popularity both because its basic assumptions were in tune with the times and because it avoided much of the political conflict produced by a long and futile fight over vouchers. Conservatives wanted choices outside the regular public schools and liberals wanted to protect the separation of church and state and avoid subsidizing private schools, four-fifths of which were religious. Charters were a new form of nonsectarian autonomous public school outside the established public school system, managed by nonprofit or for-profit groups. At first they represented a modest movement that strongly appealed to business executives and their foundations, which had started playing a large role in education policy, but nonetheless appeared to pose little threat to the regular system. One reason why this experiment seemed marginal was that research, even from conservative institutions such as the Bush administration's Department of Education and the Hoover Institution at Stanford, found no evidence of significant educational benefits in charters. In a period when conservatives placed enormous pressure on schools through test-driven accountability measures including No Child Left Behind and many state reforms, the failure to show benefits should have mattered greatly. NCLB produced a vast amount of data showing the poor performance of segregated impoverished schools, and many charters fell directly into that category and had similar outcomes.

As the charter movement grew, however, the owners and operators of these schools emerged as a highly organized and effective political lobby. Some talented and charismatic young educators had been attracted to the movement, and their schools were widely publicized. The charter drive received extensive philanthropic support, and the lobby was influential in a number of states and highly successful in Washington, most spectacularly in the Obama administration, some of whose top staff in the Department of Education were drawn from this movement. They wrote pro-charter priorities into the heart of the new policies for both NCLB accountability and the massive stimulus package designed to help pull the country out of the Great Recession. With the federal government in control of a vast amount of emergency money and school systems in desperate need of funds, the conditions were ideal for federal leverage to expand the charter movement. Most states rapidly yielded to the very strong incentives to lift state limits on charter school creation.⁵⁸

Other factors favored charters. They often cost less than regular public schools and left completely untouched the well-regarded regular public schools of the middle and upper classes in the more affluent suburbs. They promised big successes without disturbing anyone but the vilified old bureaucracies and rigid unions, whose power had declined greatly by the mid-1990s as suburbia's demographic and political domination had increased. With some clearly excellent schools, limited accountability, and effective political mobilization, it did not matter much that the charter movement's educational outcomes were largely unimpressive.

Vouchers

Probably no major choice-based reform proposal in recent American history has generated a more passionate debate with fewer real consequences than the movement for school vouchers. It received a substantial impetus from a number of sources beginning in the 1960s. The federal War on Poverty sponsored an early experiment in a California district. One of the nation's most prominent sociologists, James Coleman, became a strong advocate for private schools, as did some other scholars.⁵⁹ The California law professors John Coons and Stephen Sugarman championed an expansive vision of vouchers with civil rights protections—an idea that the pure market proponents in the conservative movement did not adopt.⁶⁰ The Catholic hierarchy in the United States saw vouchers as an issue of basic fairness with regard to their system, which included schools in poor urban communities. They argued that millions of Catholics were taxed for a public system they did not use. This position, supported by many urban Democrats from Catholic areas in Congress, had destroyed President John F. Kennedy's effort to direct federal aid to education.⁶¹ The business community also supported vouchers (for instance, a business leader in Indianapolis funded a private voucher program), and they became a major goal of the Republican Party, which has controlled the White House for five terms since 1980. After more than thirty years of active advocacy, many political battles, and the famous Supreme Court victory in Zelman (discussed below), however, only a tiny fraction of 1 percent of U.S. students use vouchers, and half of the areas where they were adopted had discontinued the policies by 2010. Their failure has revealed the limits of the choice movement.

Vouchers have spurred intense discussion since the 1980s, including the claim that opening up private schools, most of which are religious, to poor minority children would create more-integrated and better schooling opportunities. This was a successful argument in persuading the Supreme Court to permit vouchers to be used for religious schools in Zelman v. Simmons-Harris.⁶² The decision allowed public subsidies to go to Cleveland-area religious schools willing to take transfer students from the city's public schools.

Unlike charter schools, vouchers have been a bitterly partisan issue. The support of five GOP presidents beginning with Richard Nixon, the national GOP, and many religious educators has had little impact. George W. Bush offered a typical statement of conservative support during his presidential campaign: “Let poor people choose their schools, like rich people do. Nowhere in the Constitution does it say that parents should not be able to choose where to send their children to school. Nowhere does it say that only people who can afford it should be able to choose to send their children to schools with quality academics and sound discipline, but poor people should not. We must say, clearly and emphatically, that the people who need help should not merely be passive recipients of a handout, but should have the freedom to choose where they receive services.”⁶³ But vouchers have been defeated because of public opposition, the strength of public school and teacher organizations, and the lack of persuasive evidence that they would make a substantial difference for poor children or that there would be a good supply of high-quality spaces available at a reasonable cost if they were authorized. Since four-fifths of private schools are religious, voucher programs face serious legal barriers in the laws, including constitutions, of dozens of states that prohibit the use of public funds for sectarian institutions. (The Zelman decision made vouchers possible if states wanted them but did not overturn prohibitions against them in state law.)

When the conservatives were in power in the George W. Bush era, they persuaded Congress to adopt vouchers both in Washington DC, where Congress is often tempted to play city council and school board, and as part of the massive legislation to rebuild New Orleans after Hurricane Katrina. The exodus of families caused by the historic hurricane virtually wiped out the flooded city's public school system and gave voucher supporters in the Louisiana state government and the Bush administration a chance to work with billions of federal rebuilding dollars, as chapter 8 discusses.

Advocates of vouchers in other states thought that the public would embrace them in jurisdictions where decisions could be made by referenda, but they were wrong. Referendum campaigns to initiate voucher programs in California, Michigan, and Utah failed by large margins.

Voucher programs also came up against resistance in the courts. There was a fierce fight to create vouchers for needy students in severely inadequate schools in Florida, but the results were disappointing both educationally and legally. Florida scholars report that “in the most segregated districts the failing (F) schools or near-failing (D) schools enroll the great majority of each district's Black students. ... However, few private schools have been willing to enroll students from the F schools.”⁶⁴ This experience suggests that neither was there a good supply of options for the students—most of whom were black—in weak schools nor did all who were able to transfer find the choice a good one, since some quickly returned to public schools. The Florida Supreme Court ruled that the vouchers violated the state constitution, which forbade use of public funds for private schools, generating a battle to amend it.⁶⁵ In Wisconsin, civil rights lawyers challenged a voucher program for discriminating against handicapped students.⁶⁶ Voucher programs in general have faced problems because the schools were selecting students, not providing access to all equally, and recruitment and information requirements set by state law were minimal.

A major review of the evidence on vouchers by the economists Cecilia Elena Rouse and Lisa Barrow in 2008 concluded: “The best research to date finds relatively small achievement gains for students offered education vouchers, most of which are not statistically different from zero.”⁶⁷

Vouchers have no real significance in terms of impact on either segregation or educational opportunity, as many schools will not take them.⁶⁸ Further, many independent schools have tuitions far higher than the value of any proposed voucher. Even the theoretical value of voucher programs is limited because private schools educate only a tenth of U.S. students, and 82 percent of private school spaces are in religious schools created to provide appropriate religious education as well as regular instruction. This is unlikely to change, because the capital and other costs of creating large numbers of new schools are prohibitive.

So far U.S. voucher experiments have been limited, and there is no way to estimate what the impacts of a large expansion would be. Six significant programs have been initiated, but state courts overturned the Florida and Colorado laws, and Congress ended the Washington DC plan after Obama's election but reinstated it in 2011 as a part of a budget deal after conservatives took over the House of Representatives after the 2010 election. The best evidence on the possible impacts of large-scale voucher systems comes from countries that have experienced them, such as Chile and New Zealand. The experience of the former, which made a massive commitment to vouchers as a basic educational treatment, suggests that the impact would be to increase overall ethnic and class segregation.⁶⁹ In fact there were massive student protests in Chile in 2011 against educational stratification.⁷⁰

After the 2010 U.S. elections, with the victory of conservatives in the House and in many state governments, the voucher issue came back on the education agenda not only in the agreement to renew the Washington DC program but also in a referendum scheduled for 2012 in Florida, a battle in Pennsylvania, and a variety of other initiatives. Although vouchers have had little impact in the United States to date, the movement supporting them has deep roots in the Milton Friedman theory of choice and is likely to be a recurring, if marginal, discussion. The charter school surge, which in some cases included converting financially troubled religious schools to charters, has taken most of the attention off the voucher issue. The latter turned out to be a sideshow of little practical importance, but the arguments it developed, particularly the attacks on school bureaucracies and teacher organizations, have become central parts of the charter movement. The most influential book of the voucher movement, John E. Chubb and Terry M. Moe's Politics, Markets, and America's Schools, blamed a conspiracy of bureaucracies and teachers’ organizations for preserving the dysfunctional status quo, a theme echoed in a leading pro-charter book, Abigail and Stephan Thernstrom's No Excuses. The rhetoric of other pro-charter groups reflects this idea. The Walton Family Foundation (started by Helen Walton and her husband Sam, a Walmart cofounder), for example, which in 2010 gave $157 million to its education campaign focusing on charters, announced, “Our core strategy is to infuse competitive pressure into America's K-12 education system by increasing the quantity and quality of school choices available to parents, especially in low-income communities.”⁷¹

The Spectacular Inconsistency of the Law on Choice

Educational issues in the United States often become legal issues. In a society founded by lawyers that has extremely powerful courts and strong ideologies of rights, this is not surprising. The U.S. Supreme Court has, however, taken wildly inconsistent positions on school choice, which has often resulted in confusion and erratic policy and reflects the ideological and partisan divisions within the country. Following Brown, the Supreme Court passively accepted “freedom of choice” for more than a decade, though it left segregation virtually untouched. By the middle 1960s, as the 1964 Civil Rights Act and other sweeping reforms were enacted to bring the power of the executive branch into the enforcement of desegregation, federal education officials recognized that choice plans were putting all the burden of change on nonwhite families. So they wrote civil rights protections into choice plans, telling school authorities that they would only accept plans that produced rapid gains in integration. These policies, backed by Justice Department lawsuits and the withholding of federal school funds from defiant districts, rapidly accelerated desegregation. They required, among other things, that all students be given a very clear opportunity to transfer each year, that all requests for transfer that increased integration be granted, that transfers increasing segregation be prohibited, that free transportation to receiving schools be provided, and that students be treated fairly in their schools. These requirements became standard in desegregation plans for decades to come.⁷² Later, similar civil rights policies were central to the magnet school movement, which emerged as a way to voluntarily integrate urban schools.

Federal education and civil rights officials and the federal courts recognized that social pressure, harassment, and other factors often limited or blocked choice, which by itself fell far short of desegregating many schools that had always been operated on a discriminatory basis, including virtually all historically black schools. In a historic unanimous decision in 1968, Green v. New Kent County, the Supreme Court ruled that choice was not enough and that far-reaching mandatory measures were essential.

“Freedom of choice” ... is only a means to a constitutionally required end—the abolition of the system of segregation and its effects. If... it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a “unitary, nonracial system.” Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to ... fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.⁷³

The court concluded that choice could be a constitutional remedy for illegal segregation only under circumstances in which it actually worked. When it failed, as it did in the vast majority of cases, it had to be replaced by mandatory policies that produced integrated schools. The court also held in Green that choice plans that increased segregation were illegal, which often became grounds for findings by federal courts that cities in the North and the West, such as Boston, Cleveland, and Indianapolis, were violating the Constitution and had to implement district-wide desegregation plans.⁷⁴

This did not mean that choice could not be used in a positive fashion. Courts approved voluntary race-conscious plans using choice in school districts that were not under court orders. Some of the earliest magnet schools were created in university communities that were voluntarily desegregating in the 1960s. The world's first touch-screen computer system, for instance, was tested in the Booker T. Washington school in Champaign, Illinois, an early illustration of the kinds of special offerings that can persuade families to make voluntary transfers. The devising and implementation of such plans had the triple advantage of taking desegregation battles out of the courts, involving educators, and enhancing local support. Early efforts of this sort appeared particularly in university communities, including Berkeley, California; Champaign, Evanston, and Urbana, Illinois; and Boston, which had a voluntary interdistrict transfer plan, Metropolitan Council for Educational Opportunity (METCO).⁷⁵ Later, states such as Illinois, California, Minnesota, and Connecticut encouraged voluntary desegregation actions in school districts before those policies were dropped or gravely weakened decades after as the political tides changed.

The law consistently required systemic desegregation plans in districts with a history of discrimination until the Supreme Court's 1991 decision in the Oklahoma City v. Dowell case, which encouraged the termination of desegregation orders and did not require the maintenance of standards that would block resegregation in choice or magnet programs after a local court order ended.⁷⁶ Following Dowell, districts released from court orders were free to either abandon or continue applying civil rights controls to their choice programs. Those that dropped them often experienced rapid resegregation.⁷⁷ Some that maintained them were sued and lost, particularly in the Fourth Circuit Court of Appeals, which covers Maryland, Virginia, and the upper South and was the nation's most conservative appellate court in that period. In other words, race-conscious magnet plans were now being systematically attacked even when supported by local elected boards of education. The court-ordered dismantling of desegregation plans was under way, and the civil rights policies that had conditioned choice since the mid-1960s were quietly abandoned in some communities, prohibited by courts in others, and maintained elsewhere.

The Supreme Court's conservative majority, which was cutting back on desegregation and increasingly sensitive to claims that the rights of local whites were being violated, acted in the 2002 Zelman decision to address what it saw as the unfair situation of poor black children locked into Cleveland public schools (largely as a result of its 1974 decision protecting the suburbs from metropolitan desegregation plans) by authorizing vouchers for private religious schools. Few states were interested, since surveys consistently show that the large majority of Americans are satisfied with their own public schools and support public education. Conservatives next challenged the legality of civil rights enrollment controls in voluntary transfer and magnet plans. They argued that the absolute right of individuals to make choices in the education market must supersede what communities saw as the value of integrated schools.

In 2007, a transformed Supreme Court acted. Switching gears dramatically, it held in the 5-4 Parents Involved decision that the most common voluntary local desegregation efforts were no longer admirable efforts on behalf of integration but rather unconstitutional discrimination because they treated the choices of some individuals of different races differently when necessary to maintain diversity and avoid resegregation. The court now said that districts must end policies that blocked transfers or magnet applications that increased segregation, taking away a basic tool that federal civil rights officials and courts had found essential for decades.⁷⁸ Choice would have to be more like the freedom of choice and open enrollment plans of the early 1960s that had failed dramatically. Even before Parents Involved, nonracial choice plans had been producing rapid resegregation in cities that had ended integration policies in their magnet schools.⁷⁹ The Reagan administration's idea that taking account of race to intentionally integrate schools was just as bad as taking account of race to intentionally produce segregation was now the law of the land with the additional votes of two new justices who had worked in the Reagan Justice Department when it was struggling to end desegregation orders in the 1980s.

The chief justice and three supporters basically concluded that school segregation was no longer a problem and that doing anything aimed at integrating schools, even using a choice mechanism, violated the Constitution. They discussed none of the issues that had been so central in the Green decision. Four justices on the other side disagreed strongly with both the factual and the legal conclusions. In the middle, Justice Anthony Kennedy forbade race-based assignments but recognized that integration was important for schools and hoped that limited mandatory methods—which had failed in the past—would work now. His decision included no analysis of the history of freedom of choice. His controlling opinion said there was no need to “accept the status quo of racial isolation in schools” and affirmed that “this Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation.”⁸⁰ But he took away critical tools for doing this.

The decision held the most common forms of voluntary desegregation plans to be unconstitutional. At the same time, it authorized far-more-contentious and less-effective plans that redrew attendance boundaries and paired schools. Boundary changes and pairing involved the mandatory reassignment of certain students, something that was much more explosive than the system of parental choice that it replaced. The legal scholar James Ryan commented that “the Court's decision makes it easier legally to leave segregated schools alone than to do something about them.”⁸¹ Harvard Law Dean Martha Minow noted that it meant that school authorities could only “try to produce racially integrated schools through ... indirect means.”⁸² While many school systems were content to leave in place long-established and often popular magnet programs with integration policies, starting all over and trying to find an indirect and legal way to preserve some diversity was a major obstacle.

Justice John P. Stevens, the court's then-senior member, with a moderate Republican background, called the decision “a cruel irony” that took away long-accepted and workable remedies and “[rewrote] the history of one of this Court's most important decisions.” The court, he said, previously had been “more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.”⁸³ The kinds of choice that increased segregation were now legal and the kinds that had produced integration were prohibited, and the country was to abandon the goal of Brown or continue choice programs under policies that history had shown would probably produce increased segregation and inequality among schools.

The decision assumed that something else could be found, some indirect policy that would be color-blind but create diverse schools. Whether the policies that failed across the South and in many northern cities in the 1960s can work now is an important question in this book. The evidence on this point, from both new studies and previous research, is not optimistic.

Both the complexities of the different forms of choice and the extreme inconsistency of policy and law contribute to the deep confusion about this issue. When the Supreme Court shifts 180 degrees on the basic constitutional dimensions of choice and the administration of the first African American president forcefully pursues the rapid expansion of the most segregated sector of choice schools, charters, it is hardly surprising that citizens and educators are confused. A society with little historical memory may be in the midst of repeating the mistakes that led to the Green decision while forgetting the civil rights policies that conditioned and channeled choice for generations. The fact that a one-vote majority on the Supreme Court changed these fundamental assumptions means that this may not be the last shift. A bare-majority decision facing a bitter four-justice dissent is only as secure as that fifth vote.

The Obama administration's leading civil rights agencies issued guidance letters to schools across the country in December 2011 supporting the use of a variety of strategies to achieve integrated schooling without directly assigning students to schools on the basis of their race, which the Supreme Court had prohibited. The guidance also strongly affirmed the value of integrated schooling, which the Supreme Court had also affirmed.⁸⁴ This was the first major positive federal policy pronouncement on school integration since 2000 and reversed the policy of the George W. Bush administration, which had opposed any consideration of race. However, it is about purely voluntary actions by local education officials, who will still face complex challenges both in figuring out what approaches will work best given local conditions and in developing a constituency to support such a plan. The document's main importance was in telling educators both that integration is important and that the two involved central departments of the federal government, Education and Justice, will stand behind them if they take positive action to pursue integrated schools within the boundaries of the law.

Forgetting History, Repeating Old Mistakes?

The story of choice policies and the law on choice reflects the winds of political and social change in the nation. The evolution of choice as a serious component of American education began with a conservative strategy to preserve segregation and to provide an exit for white families from racially changing neighborhoods in northern cities. The Virginia voucher plan was undisguised racism. Across the South at the beginning of serious district-wide desegregation, local leaders set up “segregation academies,” often with the support of local government. There was, of course, little willingness by the whites whose children left public schools to provide tax resources to adequately support the nonwhite public schools. New private schools expanded choice for whites while denying choice for blacks and undermined the schools that were their only option. In some communities, the abandonment or closing of public schools made the constitutional rights promised by the Brown decision a dead letter.

Civil rights law transformed choice by adding policies that worked better, but it still fell far short of substantially desegregating southern schools. At the peak of the integration effort, both federal civil rights officials and the U.S. Supreme Court basically rejected even choice with civil rights policies as hopelessly inadequate and implemented mandatory desegregation. When the Supreme Court ordered the desegregation of cities and then refused to include their suburbs, the cities responded with new forms of choice—magnet schools and controlled choice plans—increasing integration with what were often desirable educational options for parents of all races. This was supported by a small federal aid program and was highly popular in many cities, though there were always questions about its reach.

As a succession of conservative administrations succeeded in limiting civil rights policies, reconstructing the Supreme Court, and eliminating the federal funds that supported desegregation strategies, the social justice and integrationist theories of choice were replaced by market theory, which emphasizes the primacy of unconstrained individual choice and ignores external constraints on choice. This theory presumes that discrimination has ended, that race-conscious policies can no longer be justified, and that the real causes of educational failure are rooted in public school bureaucracies and unions—problems that could be solved by competition from private schools or semiprivate, publicly financed charter schools. The voucher and charter movements did not explicitly reject integration, and advocates of choice said it would increase real options for segregated minority families. Choice without civil rights protections expanded rapidly in charter schools. As their number increased, their striking segregation became apparent—were we repeating the errors of freedom of choice and open enrollment policies that had failed four decades earlier?

The Supreme Court's 2007 reversal left communities where choice had produced successful desegregated schools very discouraged. Some found new successful strategies; many simply gave up. Given the close division of the court and the recurrence of some of the results of the earlier color-blind choice approaches, one wonders whether this cycle is over or whether the effects of growing resegregation will one day become the basis for a new set of demands for connecting choice with civil rights. The Obama administration's civil rights guidance could be a first step in that direction.

THIS BOOK'S CONTRIBUTION

The basic goal of this book is to document the ways in which choice policies are playing out in a variety of contemporary communities and to relate those experiences and other research on choice and its history to basic questions of civil rights and the creation of real opportunities for black and Latino students locked into inferior, segregated schools, often in declining districts. The short answer is that for the dominant forms of choice at the center of the debate for the past three decades—charters and vouchers—there is no convincing evidence that color-blind choice makes any significant difference in student achievement. The currently dominant ideology of choice holds that any kind of choice is better than regular public schools by definition and considers school outcomes almost exclusively in terms of test scores. But this same ideology leads many away from looking at the high segregation of our schools and toward ignoring the increasingly powerful evidence of its educational damage for all students.

This book explores why choice policies have evolved as they have and whether choice provides access to more-diverse schools, with better-prepared classmates and teachers, schools that better reflect and prepare students for the highly diverse society in which they will live and work as adults. Since the 1970s this issue has been largely ignored in the debate over choice. As we forgot the lessons of the civil rights era, we tended to lose sight of its goals as well. This book puts them front and center.

Chapter 2 explores the basic arguments about choice both in market theory and in the very different integration theory, which derives from the civil rights experience. Both aim at the same goal, equalizing opportunity for the most-disadvantaged students, but their arguments have fundamentally different value and fact premises. This analysis provides a context for the case studies that follow.

The third chapter, by Erica Frankenberg, takes up a central challenge posed by the Supreme Court's major decision on voluntary desegregation programs in the 2007 Parents Involved case: because the court has prohibited the most common policies for preventing segregation in choice programs, must communities accept the resegregation of their schools that follows the dissolution of integration plans? Since policies using other variables, such as social class, in an indirect way to foster racial diversity have had limited success, this prohibition was a clear threat to that goal, and many districts overinterpreted the decision and assumed that they could not do anything that would work. But the Supreme Court majority actually said that school integration was still a compelling interest and explicitly authorized school systems to take some positive actions that were not about assigning individual students, such as redrawing attendance boundaries. Berkeley, a diverse district that has pursued integration for half a century, used computers to study and classify hundreds of mini-neighborhoods across the city by race as an important element in assigning students to schools. The policy—which focuses on neighborhoods, not individual students—worked and was upheld by the courts. It is an important example for other districts.

The way a community understands choice relates to its history and policies. In chapter 4, Barbara Shircliffe and Jennifer Morley's study of the Hillsborough County school district (including metropolitan Tampa, Florida) explores the impact of a long history of city-suburban desegregation on the way choice programs are framed. Because of that history—including the fact that the district is county-wide, encompassing cities and suburbs—Hillsborough possesses understanding and experiences that may help maintain some diversity even under a color-blind choice policy. This has been most difficult in Tampa, where substantial resegregation has occurred.

This book also analyzes the impacts of the two largest forms of choice now in operation in American schools—magnet schools and charter schools. In the decades since the civil rights era, as Genevieve Siegel-Hawley and Erica Frankenberg explain in chapter 5, the original goals of magnets have been modified and sometimes lost as the law and politics have changed. Yet they still constitute the nation's largest system of school choice, an important and popular option that national policy debates and funding priorities have nonetheless largely neglected for decades, not because of evidence that private and charter schools are better but because of the contemporary antagonism toward anything that is part of a public school system or has a union.

Since charter schools have been the most important manifestation of choice in the past two decades and have received far more governmental and private support than any other form, this book looks at them in three major chapters. Chapter 6, also by Frankenberg and Siegel-Hawley, shows how the lack of meaningful civil rights policies has made charter schools even more segregated than regular public schools, particularly for black students, and how, in spite of many claims to the contrary by the charter school movement and its advocates, there is no convincing evidence of any net educational advantage from charter schools. Though there are some outstanding charter schools that perform better than the average public school, there are more that perform worse, and, on average, there appears to be no significant difference in test scores between charter and public schools. Additionally, charter school research has virtually ignored many of the impacts of more-diverse schools. The study in chapter 7, by Myron Orfield, Baris Gumus-Dawes, and Thomas Luce, addresses the evolution of the charter school movement where it began, in the greater Minneapolis-St. Paul area. Chapter 8, by the same authors, looks at the rapid charterization of schools in the New Orleans area after Hurricane Katrina virtually wiped out the public school system there and conservatives in Washington DC and Baton Rouge took the opportunity to implement a massive experiment, using the leverage of billions of dollars of federal aid to rebuild the city. As president, both George W. Bush and Barack Obama have hailed some of the strongest charter schools in their visits to New Orleans, and the city provides a kind of test of what might happen under all-out charter school development. The results of this study raise challenging questions about the possible fragmentation and stratification of competing school systems within a single impoverished city as private schools that receive vouchers—and hence public funds—offer a variety of school programs while public schools become isolated, residual institutions. The researchers of chapters 7 and 8 find no convincing proof of educational gains but instead clear evidence that the charter schools have helped stratify, not diversify, the schools in the two areas. They also find nothing intrinsically superior about charter schools.

Determined to avoid the limits of publications that are content to merely describe problems, this book turns in its final set of chapters to the question of how we could use choice more effectively. Chapter 9 confronts the dilemma that inequality is rooted in metropolitan stratification but we are trying to deal with it through choices that are at either the neighborhood or the city level. The problems of segregation by race, class, and language and of unequal educational opportunity and achievement are starkly different in various parts of each metropolitan area. Policy discussions have largely ignored the metropolitan dimensions for decades, but there is powerful evidence favoring metropolitan-wide solutions, which produce more stable communities and more access to better schools for poor and minority students. There have been, however, some notable successes in metropolitan choice programs that deserve careful attention. Amy Stuart Wells and her coauthors explore those experiences and suggest ways that choice could be most effective across district lines. The link of housing to school options and the interaction of housing segregation with the fragmentation of metropolitan communities into many very different school districts are fundamental sources of unequal opportunity, and interdistrict policies are one of the only ways to overcome these forces.

Information availability is absolutely central to theories of markets, but research shows that the dispersal of information about choices is unequal in ways that further disadvantage minority and poor families. Any unequal distribution of information undermines the basic fairness of choice systems since it leads to the most-informed people—usually already otherwise advantaged—getting better opportunities. Jack Dougherty and his colleagues report in chapter 9 on a systematic effort in Hartford, Connecticut, to greatly raise the quality and accessibility of information about local schools. The project used the Web to improve information dispersal and worked against unequal internet access with special information and training sessions and access points. This chapter deepens understanding of information divides and the feasibility of interventions.

The current views of people in the Louisville (Jefferson Country, Kentucky) school district illuminate community desires in a metro district whose plan the U.S. Supreme Court struck down in 2007. Both parents and students told interviewers that they strongly favor continuing efforts to maintain diverse schools, in which both groups see important advantages. At the same time there are divisions over the effectiveness of the plan to achieve this and contradictions in some of the views, which express a simultaneous desire for choice, desegregation, and access to neighborhood schools. Chapter 11 explores the context in which district leaders must search for solutions.

The book concludes with a broader view of research on choice and diversity and the conditions for achieving and maximizing the potential benefits of diverse schools. It points to the possible contributions that can be made by federal and state actors, district- and school-level leaders, community and civil rights organizations, and external researchers. A central theme of the book is that the kind of choice offered and the terms under which it is implemented matter greatly in determining its consequences, and unless policy explicitly takes the race of students into account and has a goal of integration, it is likely to make segregation worse and opportunity more unequal. It would be a tragic outcome if a movement justified as an expansion of choices for the families that need them the most were to deepen separation and diminish opportunities. There is disturbing evidence that this is happening today. Yet there is a much richer and more beneficial practice of choice possible, deeply rooted in the experiences of the civil rights era, and there are ways to use its power for much more positive outcomes, for students, families, and our society.

NOTES

1. U.S. Census Bureau, Statistical Abstract of the United States: 2012, table 253.

2. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age.

3. Henig, Rethinking School Choice: The Limits of the Market Metaphor, 231.

4. Schwartz et al., “Goals 2000 and the Standards Movement.”

5. Thernstrom and Thernstrom, No Excuses: Closing the Racial Gap in Learning, 265.

6. Scott, “School Choice as a Civil Right: The Political Construction of a Claim and Implications for School Desegregation.”

7. Dillon and Schemo, “Charter Schools Fall Short in Public Schools Matchup: U.S. Reports Findings of Study in 5 States.”

8. Washington Post, "Obama Delivers Remarks on Education at National Urban League: Speech Transcript.”

9. U.S. Department of Education, “President Obama, Secretary Duncan Announce Race to the Top.”

10. Bush, first State of the Union address.

11. Clinton, eighth State of the Union address.

12. Carnoy et al., The Charter School Dust-Up: Examining the Evidence on Enrollment and Achievement.

13. National Center for Education Statistics, NAEP 2008: Trends in Academic Progress, Reading 1971-2008, Mathematics 1973-2008; Education Week, Diplomas Count, June 2011.

14. Fuller et al., Is the No Child Left Behind Act Working?

15. Prevention Institute for the Center for Health Improvement, “Nutrition Policy Profiles: Supermarket Access in Low-Income Communities.”

16. Eaton, The Other Boston Busing Story, 4-6.

17. Sunderman, Kim, and Orfield, NCLB Meets School Realities: Lessons from the Field.

18. Apart from a very small proportion who are approved for homeschooling.

19. For more on Milton Friedman, see chapter 2. For Alum Rock, see Bridge and Blackman, Family Choice in Schooling.

20. Brown v. Board of Education (1954).

21. Brown v. Board of Education (1955).

22. Briggs v. Elliott.

23. G. Orfield, The Reconstruction of Southern Education: The Schools and the 1964 Civil Rights Act, 20.

24. U.S. Commission on Civil Rights, Southern School Desegregation 1966-67.

25. U.S. Office of Education, “General Statement of Policies,” school desegregation guidelines, April 1965.

26. Orfield, The Reconstruction of Southern Education.

27. Bass, Unlikely Heroes.

28. Green et al. v. County School Board of New Kent County, Virginia, et al.

29. G. Orfield, Must We Bus?: Segregated Schools and National Policy, 19-24.

30. Shelly v. Kraemer.

31. Fossey, School Choice in Massachusetts: Will It Help Schools Improve?

32. Griffin v. County School Board of Prince Edward County.

33. Griffin v. County School Board, oral argument (in part 2 at www.oyez.org/cases/1960-1969/1963/1963_592/).

34. Lewis, Portrait of a Decade: The Second American Revolution.

35. Keyes v. Denver School District No. 1.

36. Center for National Policy Review, Catholic University Law School, Why Must Northern School Systems Desegregate? A Summary of Federal Court Decisions in Recent Cases.

37. Milliken v. Bradley.

38. Bureau of Equal Educational Opportunities, Massachusetts Department of Education, Schools and Programs of Choice: Voluntary Desegregation in Massachusetts.

39. Yu and Taylor, eds., Difficult Choices: Do Magnet Schools Serve Children in Need?, 9.

40. Betts et al., “Does School Choice Work? Effects on Student Integration and Achievement” Bifulco, Cobb, and Bell, “Can Interdistrict Choice Boost Student Achievement? The Case of Connecticut's Interdistrict Magnet School Program” Gamoran, “Student Achievement in Public Magnet, Public Comprehensive, and Private City High Schools.”

41. Eaton, “Slipping toward Segregation” Eaton and Crutcher, “Magnets, Media and Mirages.”

42. Board of Education of Oklahoma City Public Schools v. Dowell; Boger and Orfield, eds., School Resegregation, Must the South Turn Back?

43. Tuttle v. Arlington County School Board; Eisenberg v. Montgomery County Public Schools.

44. Smrekar and Goldring, School Choice in Urban America: Magnet Schools and the Pursuit of Equity; Metz, Different by Design.

45. Wells and Crain, Stepping Over the Color Line: African-American Students in White Suburban Schools; Heaney and Uchitelle, Unending Struggle: The Long Road to an Equal Education in St. Louis.

46. Willie, Edwards, and Alves, Student Diversity, Choice and School Improvement.

47. Weaver, “Controlled Choice: An Alternative School Choice Plan.”

48. Willie, Edwards, and Alves, Student Diversity.

49. Thernstrom and Thernstrom, No Excuses.

50. Chubb and Moe, Politics, Markets, and America's Schools.

51. Gates, remarks at the National Charter Schools Conference.

52. Frahm, “Charter Schools: A Debate over Integration and Education.”

53. Nathan, Charter Schools: Creating Hope and Opportunity for American Education.

54. See, for example, the October 31, 1994, Time magazine cover, which read, “New Hope For Public Schools: In a grassroots revolt, parents and teachers are seizing control of public education.”

55. Center for Research on Educational Outcomes, Multiple Choice: Charter School Performance in Sixteen States.

56. 1991 Omnibus K-12 Education Finance Bill (House File 700/Senate File 467, Laws of Minnesota 1991, chapter 265, article 9, section 3).

57. Center for Educational Reform, “National Charter School and Enrollment Statistics 2009, 2010.”

58. Hess, “Race to the Top? The Promise—and Challenges—of Expanding the Reach of Charter Schools.”

59. See, e.g., Coleman, Hoffer, and Kilgore, “Cognitive Outcomes in Public and Private Schools” Bryk, Holland, and Lee, Catholic Schools and the Common Good.

60. Coons and Sugarman, Education by Choice: The Case for Family Control.

61. Price, “Race, Religion, and the Rules Committee: The Kennedy Aid-to-Education Bills.”

62. Zelman v. Simmons-Harris, at 676-84 (Justice Thomas concurring).

63. Bush, “Cleveland Voucher Program.”

64. Lee, Borman, and Tyson, “Florida's A+ Plan: Education Reform Policies and Student Outcomes,” 149.

65. Bush v. Holmes.

66. DeFour, “ACLU Alleges Milwaukee Voucher Program Discriminates against Disabled Students.”

67. Rouse and Barrow, “School Vouchers and Student Achievement: Recent Evidence, Remaining Questions.”

68. Anrig, “An Idea Whose Time Has Gone: Conservatives Abandon Their Support for School Vouchers.”

69. McEwan, Urquiola, and Vegas, “School Choice, Stratification, and Information on School Performance: Lessons from Chile.”

70. Bodzin, “Chilean Students Taking to Streets against ‘Pinochet's Education.’”

71. Walton Family Foundation, “Education Reform: Overview.”

72. Orfield, The Reconstruction of Southern Education.

73. Green et al. v. County School Board Of New Kent County, Virginia, et al, at 441-42.

74. Orfield, Must We Bus?, 21.

75. Sullivan and Stewart, Now Is the Time: Integration in the Berkeley Schools.

76. Board of Education of Oklahoma City Public Schools v. Dowell.

77. Reardon and Yun, “Integrating Neighborhoods, Segregating Schools: The Retreat from School Desegregation in the South, 1990-2000.”

78. Parents Involved in Community Schools v. Seattle School District No. 1.

79. Mickelson, “The Incomplete Desegregation of the Charlotte-Mecklenburg Schools and Its Consequences.”

80. Parents Involved, at 788-89 (Justice Kennedy concurring).

81. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America, 117.

82. Minow, In Brown's Wake: Legacies of America's Educational Landmark, 126.

83. Parents Involved, at 798-99 (Justice Stevens dissenting).

84. U.S. Department of Justice Civil Rights Division and U.S. Department of Education Office for Civil Rights, “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools.”