Education Law

Published: 22-12-2011, 13:16

Dual and Unitary Systems

Based on precedent from the U.S. Supreme Court, dual systems of public education were those that operated separate and distinct schools for students who were White and children who were African American or other minorities such as Mexican American. Conversely, unitary systems were those that achieved the status of being desegregated, meaning that students were no longer placed in racially separate schools. Following the landmark Brown v. Board of Education of Topeka ruling in 1954, dual systems were declared unconstitutional. As a result of lawsuits brought by parents and students, school districts across the country were placed under the supervision of federal courts while they worked to desegregate their schools. Once federal courts decided that school boards no longer operated dual systems, they released districts from direct judicial oversight and monitoring with regard to the implementation of school desegregation plans. This entry provides a brief overview of that process and current developments.

Achieving Unitary Status

The Supreme Court announced the most comprehensive list of items that lower courts had to examine in evaluating whether districts achieved unitary status in Green v. County School Board of New Kent County (1968). These six factors address the composition of a student body, faculty, staff, transportation, extracurricular activities, and facilities. School boards that seek unitary status must prove that officials implemented their desegregation orders in good faith, that their plans were effective in eliminating all vestiges of school segregation to the extent practicable under the Green factors, and that they have not violated the U.S. Constitution subsequent to the original judicial decrees.

In discussing desegregation and unitary status, David Armor, a well-known researcher on school desegregation, identifies the second criterion, the removal of vestiges, as the most complex. Among the vestiges that federal courts are likely to consider in formerly segregated schools systems are the maintenance of one-race schools from the period prior to the issuance of desegregation decrees through the implementation of an approved plan, a school faculty racial composition that deviates greatly from the overall district percentage, and inadequate programs to help minorities in predominantly minority schools.

Even though the Court later decided that districts could achieve unitary status incrementally in Freeman v. Pitts (1992), and that desegregation orders are not meant to operate in perpetuity in Dowell v. Board of Education of Oklahoma City Public Schools (1991), lower courts continue to apply the principles established in Green.

Pursuant to a large body of case law, school boards that failed to achieve unitary status had to receive judicial approval for any changes that they wished to make to their desegregation plans. Among the changes needing court approval today are such important items as school attendance areas or zones, the construction of new buildings or closing of old schools, and changes in teacher or student transfer policies. The burden of proof for making changes rests on defendant school boards.

Current Issues

In districts that have achieved unitary status, school officials have the same constitutional rights to act as in districts that have never operated under court orders. To succeed in a lawsuit protesting a school policy or action, plaintiffs must prove that the school board intended to discriminate and that its activity had the outcome of segregation. Thus, in unitary districts, the burden of proof to show discrimination shifts back to the plaintiffs, those charging that a school board operated a racially segregated system.

Armor has pointed out three reasons why school boards in unitary systems may have preferred to remain under court orders rather than be declared unitary. First, the court order provides a measure of judicial protection from political pressures to alter the content of their plans. Second, court orders help protect staffing plans that spread minority staff throughout school districts. An increasingly significant third reason in this regard is that remaining under judicial orders allows boards to maintain the funding that the courts provide from state and/or federal sources.

If a system that was at one point racially balanced has since become segregated again, courts typically consider the extent to which school board actions or demographics were the cause. In recent litigation, for example, plaintiffs have called for the elimination of disparities in student achievement, disciplinary action, and representation in special education and in programs for the gifted. In addition, while plaintiffs have cited such differences as vestiges of discrimination, the judiciary has yet to rule definitively or favorably on such motions, insofar as the Supreme Court has noted that that a Black-White achievement gap by itself is not a barrier to a district’s achieving unitary status.

Gary Orfield and Susan Eaton, working with the Harvard Project on School Desegregation, argue that recent Supreme Court cases defining unitary status have led to the erosion of judicial support for school desegregation. According to these authors, by 1990, unitary status no longer meant achieving a truly integrated school system. They argue that the Court no longer supported lasting desegregation and had abandoned the notion of the parts of a desegregation plan as an inseparable package to move a school district from a dual to a single district. The shifting burden of proof, they said, made it difficult to prove segregative intent in an era when officials knew that providing racially tinged reasons for their actions would have led them to litigation. In other words, Orfield and Eaton posited that moving from dual to unitary status meant that acts that were illegal in the former stage may well be legal in the latter stage.

Paul Green

See also Dowell v. Board of Education of Oklahoma City Public Schools; Freeman v. Pitts; Green v. County School Board of New Kent County

Further Readings

  • Orfield, G., & Eaton, S. E. (1996). Dismantling desegregation: The quiet reversal of Brown v. Board of Education. New York: New Press. 
  • Rossell, C. H., Armor, D. J., & Walberg, H. J. (Eds.). (2002). School desegregation in the 21st century. Westport, CT: Praeger. 
  • Wolters, R. (1996). Right turn: William Bradford Reynolds, the Reagan administration, and Black civil rights. New Brunswick, NJ: Transaction. 

Legal Citations

  • Dowell v. Board of Education of Oklahoma City Public Schools, 498 U.S. 237 (1991), on remand, 778 F. Supp. 1144 (W.D. Okla. 1991), aff’d sub nom. Dowell v. Board of Education of Oklahoma City Public Schools, 8 F.3d 1501 (10th Cir. 1993). 
  • Freeman v. Pitts, 503 U.S. 467 (1992), on remand, 979 F.2d 1472 (11th Cir. 1992), on remand, 942 F. Supp. 1449 (N.D. Ga. 1996), aff’d, 118 F.3d 727 (11th Cir. 1997). 
  • Green v. County School Board of New Kent County, 391 U.S. 430 (1968).
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