The racial integration of American schools has stalled, some scholars claim. In a recent essay, Duke Professor of Law Erwin Chemerinsky says the federal courts are to blame.
With the composition of the Supreme Court in flux, Chemerinsky said every appointment has long-term consequences for the state of civil rights.
An expert in constitutional law who has argued civil rights cases before the Supreme Court, Chemerinsky's essay appears as a chapter in the recently published book School Resegregation: Must the South Turn Back?
"We see this throughout the South and throughout the country: American public schools are increasingly segregated and unequal," Chemerinsky said.
He added that the development rises from two sets of Supreme Court rulings.
The first occurred in the 1970s when the Court constrained the ability of judges to issue desegregation orders to school districts. The second cohort of cases came in the early 1990s and "put an end to effective desegregation remedies," Chemerinsky said.
In his essay, Chemerinsky blames former President Richard Nixon's Supreme Court appointees-including the late Chief Justice William Rehnquist-for limiting the judiciary's power of desegregation.
He points specifically to the 1974 ruling in Milliken v. Bradley, which prevented enrolling students across districts to achieve ethnic balance.
"Milliken has a devastating effect on the ability to achieve desegregation in many areas," Chemerinsky writes in his essay. "In a number of major cities, inner-city school systems are substantially African-American and are surrounded by almost all-white suburbs. Desegregation requires the ability to transfer students between the city and the suburban schools."
Chemerinsky said desegregation was further weakened by a series of decisions in the early 1990s. He said three rulings in that period terminated desegregation orders, even when the result was a resegregated school district.
"Across the country, effective desegregation orders have been ended as a result of these Rehnquist Court decisions."
According to a study published by the Civil Rights Project at Harvard University, the percentage of Southern black students attending majority white schools fell from a peak of 43.5 percent in 1988 to roughly 31 percent in 2000.
Chemerinsky said there is a link between resegregation and Supreme Court rulings that have hampered judicial efforts to desegregate schools.
A self-identified progressive, Chemerinsky said he takes issue with conservatives who complain that judges are "legislating from the bench" when they mandate desegregation.
"Judicial activism is just the label that we all use for decisions we don't like," he said "I think that the Constitution was intentionally written in broad, open-textured language. In giving that language meaning, the justices have to make choices."
Chemerinsky described Supreme Court Justices Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, Clarence Thomas and Rehnquist as "anti-civil rights" activists.
"If you think of a court being active when it's overruling precedent... the Rehnquist court cases with regard to desegregation were very active in that they were overruling prior decisions," Chemerinsky said.
Chemerinsky has criticized the selection of Chief Justice John Roberts, whose judicial philosophy he compares to Rehnquist's.
He authored a letter in August opposing Roberts' nomination that was ultimately signed by 160 law professors.
Chemerinsky said he was concerned about Roberts' performance while serving in the solicitor general's office of former President George H. W. Bush.
"Every indication is that he will be a very conservative justice," Chemerinsky said.
Chemerinsky has drawn fire from conservative circles for his left-leaning politics.
A writer on the conservative judicial weblog ConfirmThem.com called him a "fiction writer," and a contributor to National Review Online said he is "reliably partisan."
"I hope that if you talk to my students they will tell you in the classroom I'm not partisan at all," Chemerinsky said. "[When] I'm in the media, I'm certainly progressive."
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