Brittain, John C.

English

St. John's University School of Law

St. John's Law Review Volume 78 Number 2 Volume 78, Spring 2004, Number 2 Article 6 February 2012 Remarks of John C. Brittain John C. Brittain Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Brittain, John C. (2004) "Remarks of John C. Brittain," St. John's Law Review: Vol. 78 : No. 2 , Article 6. Available at: https://scholarship.law.stjohns.edu/lawreview/vol78/iss2/6 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. REMARKS OF JOHN C. BRITTAINtBrown v. Board of Education' was one of the mostsignificant cases decided by the Supreme Court of the UnitedStates. Certainly it was the most important case dealing withrace. Brown will be commemorated this year-in the highlightof its life. However, I believe that the majority of scholars whoreflect on this issue will sadly conclude that Brown is probablydead. Brown significantly impacted this society; and its deathdoes not take away from what it contributed in its life.The road to Brown was paved many years before theSupreme Court even announced the decision. For example, I amthe former Dean of a school that was born during the sin ofsegregation in the mid-1940s. The State of Texas created anentirely new law school for just one person in order to avoid theintegration of the segregated University of Texas Law School.This was notwithstanding the historic 1950 decision in Sweatt v.Painter,2 which held that creating a "separate but equal" lawschool for just one black person violated the FourteenthAmendment of the Constitution. The school neverthelesssurvived, and today is one of the most racially and ethnicallyintegrated law schools in the nation. It is certainly the mostintegrated law school in the State of Texas.Brown represented the fruit of painstaking strategy,extensive scholarship, and tedious grassroots efforts. Brown issomething of a mythic march on Washington in the great heydayof the civil rights movement. It will be canonized this year, butits elements will hardly reach the classrooms of those who needthe most but receive the least. The ideas explored by the Brownv. Board of Education scholars will hardly reach Americanschoolchildren stomped down in the barrios and the ghettos oflow-performing schools.The American South remains one of the country's mostintegrated regions. High school graduation rates for African-t Professor of Law, Texas Southern University. B.A., J.D., Howard University.1 347 U.S. 483 (1954).2 339 U.S. 629 (1950).ST. JOHN'S LAW REVIEWAmericans continue to climb. College admission and graduationrates for people of color continue to increase. The black middle-class is growing. Stanley O'Neal heads Wall Street's leadingbrokerage firm, Merrill Lynch. Dick Parsons leads AOL, andOprah Winfrey and even P. Diddy are symbols of Americansuccess. However, social commentators such as Derek Brownview these stories as fulfilling the white image of success andbelieve that this leads many African-Americans who are lessfortunate to assume that this is the paradigm.The history of Brown's demise is rather ugly. If Brown isindeed dead, the Supreme Court of the United States first killedit almost twenty years after it decision in Milliken v. Bradley.3In fact, upon examination of the sixteen years that it really tookto implement Brown-from 1954 to about 1970-the effects ofBrown only really lasted about four or five years. The Millikendecision held that courts could not integrate schools by allowingnon-white children from urban districts to go to schools insuburban districts unless the plaintiffs could prove that thesuburban districts caused the segregation in the urban districts.Following Milliken, a plaintiff would have to prove that thesuburban district caused the segregation in the urban district,but did not perpetuate desegregation in the suburban district.Milliken stripped Brown of its reach, and by the 1980s, thegovernment followed suit by no longer providing federal moneyfor integrating local education.Racial segregation continues to persist. The South still hasthe most integrated schools; this is partly a result ofdemographics and partly a purposeful effect of desegregationorders. The citizens of the North and the Midwest, however, whoonce looked with disdain upon segregation, now run some of theNation's most racially segregated public schools. Members of thecivil rights struggle call this "up south segregation."Today, society faces triple segregation in educationcharacterized by extreme racial and ethnic isolation, highpoverty concentration, and low educational achievement. First,today's schools experience extreme racial and ethnic isolation;there is more segregation of black and Latino children in publicschools today than there was at the time of Brown. Additionally,Northeast states such as Pennsylvania, New Jersey, New York,3 418 U.S. 717 (1974).[Vol.78:281REMARKS OF JOHN C. BRITTAINand Connecticut have some of the nation's most segregatedschool districts, which is largely due to local control andcompartmentalization of education in small suburban towns andcommunities. Second, the high concentrations of poverty is a farmore significant contributing factor than race and ethnicity incontributing to unequal educational opportunities. Thecombination of these two factors leads to a low educationalachievement rate.On the same day the New York Court of Appeals decidedCampaign for Fiscal Equity, Inc. v. State of New York, 4 itdeclined to hear the case of Paynter v. State.5 Paynter dealt withissues stemming from the second factor of the triple segregation,specifically Rochester's high concentration of poverty. Rochesteris a school district with over 80% non-white students and a 90%poverty rate. This high concentration of poverty served as aproxy for many disadvantages to both the children and theschool system in delivering equal educational opportunities.Rochester is surrounded by white suburban segregated schooldistricts, with most students achieving or exceeding the state'sattainment level. The combination of this, along with the highconcentration of poverty within the inner core of Rochester,created a disparity in education. These disparities, along withracial isolation in Rochester, denied these school children theirfundamental right to an education under the New YorkConstitution. The district court threw out the case, and heldthat New York's Constitution did not recognize a claim for denialof the right to an education. 6 The appellate division affirmed, 7and the case was appealed to the New York Court of Appeals.The Court of Appeals agreed with the lower courts and held, inessence, that the New York Constitution does not recognize sucha claim.Therefore, it was not an accident that civil rights lawyers inConnecticut decided to attack de facto segregation in the Northduring the latter part of the twentieth century, as well as to fightproblems that would prevail in the twenty-first century.Northern-style segregation, often called de facto segregation, is4 100 N.Y.2d 893, 801 N.E.2d 326, 769 N.Y.S.2d 106 (2003).5 100 N.Y.2d 434, 797 N.E.2d 1225, 765 N.Y.S.2d 819 (2003).6 Paynter v. State, 187 Misc. 2d 227, 720 N.Y.S.2d 712 (Sup. Ct. Monroe County2000).7 Paynter v. State, 290 A.D.2d 95, 735 N.Y.S.2d 337 (4th Dep't 2001).2004]ST. JOHN'S LAW REVIEWboth different from and similar to the eradicated Southernversion of segregation. It is characterized, not by explicitlydiscriminatory laws, but by practices such as housingdiscrimination, biased lending, exclusionary suburban zoning,and embedded economic and networking involvement passeddown through generations. Segregation in Northern schoolsexists not within the city school districts, but betweenincreasingly poor cities and the disproportionately andpredominantly White middle-class suburbs. I contend that thedistrict boundary line is the new Jim Crow segregation line andthat the disparities today are not between African-Americansand Whites within the school districts, but instead result fromthe color differences and inequalities between urban andsuburban school districts.Ironically, de jure segregation is illegal and no longer exists;there are no more districts that prescribe where children go toschool according to their race. However, de facto segregation islegal everywhere in this nation, except Connecticut. Some of thetangible consequences provided by integration, and denied bysegregation, include better academic preparation for college,greater advantages, integrated educational environments, andsocial contacts that lead children to a higher status and betterpaying jobs.Today, social science data shows that integration still has avery positive impact not upon the strict academic achievement ofnon-white children, but on those intangible factors that ease theintegration of our society. These intangibles include housing andjobs with higher career pursuits and aspirations. Despite theseadvantages, integration is hard to sell to the non-whitecommunities or the victims of inequalities in education.Certainly, a slight majority of Caucasian-Americans say theyfavor integration, but only if they will not be burdened by havingto implement it. Nevertheless, the racial and ethnic equality of acommunity can always be determined by examining the schoolintegration and achievement, the housing patterns, voting andelection of minority officials, and community relations.We started planning our strategy in She/f v. O'Neill8 inHartford, Connecticut by measuring those symbols to determine8 678 A.2d 1267 (Conn. 1996).[Vol.78:281REMARKS OF JOHN C. BRITTAINthe level of equality. 9 The main challenge we faced was gettingaround Milliken v. Bradley.'0 That case had all but foreclosedthe possibility of school integration through the federal courtsbecause the plaintiffs could not show that de facto segregationwas, by definition, a form of intentional segregation." To solvethis problem, we looked to two provisions in the ConnecticutConstitution.First, as exemplified in by the 1977 case, Horton v. Meskill,12Connecticut recognized the right that education always included"free public elementary and secondary schools in the state. Thegeneral assembly ... implemente[d] this principle byappropriate legislation."' 3  Therefore, Article VIII of theConnecticut Constitution guarantees the fundamental right toan education. The current constitution was adopted in 1965,during the height of the civil rights movement. Anotheruntested provision of its constitution is article I, section 20. Asamended, this provision states: "[n]o person shall be denied theequal protection of the law nor be subjected to segregation ordiscrimination in the exercise or enjoinment of his or her civil orpolitical rights because of ... race or color . ,,14 To the extentthat the Connecticut Constitution prohibits segregation anddiscrimination, it is redundant.15  Connecticut's express9 I took what I learned from Boling v. Sharpe, 347 U.S. 497 (1954), which dealtwith students in the District of Columbia. The District of Columbia is not a state; itis a municipality and is governed by the Fifth Amendment, not by the FourteenthAmendment. Yet, the Fifth Amendment did not have an Equal Protection Clause.Therefore, the issue became how to make an argument that de jure segregation inthe District of Columbia was unconstitutional on equal protection grounds if theFifth Amendment did not have an Equal Protection Clause. The United StatesSupreme Court reasoned that if the Fourteenth Amendment is a child of the FifthAmendment in terms of due process and if the child has equal protection, then thechild could only have the lineage and the legacy from his parents. Therefore, theFifth Amendment must have contained an equal protection component. The Courtinterpreted that component and held that the District of Columbia's segregationviolated the Equal Protection Clause.10 418 U.S. 717 (1974). We assembled a "Dream Team" that consisted of theNAACP Legal Defense Fund, the ACLU out of New York, the Connecticut CivilLiberties Union, the Puerto Rican Legal Defense Fund from New York, and thenumber one appellate lawyer in the State of Connecticut, Wesley Horton.11 Id. at 748-51.12 376 A.2d 359 (Conn. 1977).13 Id. at 362 n.2; see also CONN. CONST. art. VIII.14 CONN. CONST. art. I, § 20 (amended 1974 and 1984).15 Only three state constitutions in the country attempt to expressly prohibitsegregation and discrimination.2004]ST. JOHN'S LAW REVIEWprohibition of segregation and discrimination on the basis of raceallowed us to attack de facto segregation without proving aviolation of the Connecticut Constitution's right to an education.We argued that the right to an education in one constitutionalclause and the protection against discrimination and segregationin another should be read jointly to create one fundamentalright-the right to an equal educational opportunity free ofracial and ethnic concentration, segregation, and discrimination.In 1996, a bare 4-3 majority of the Connecticut Supreme Courtagreed with us and held that the extreme racial segregation inthe capital city of Hartford, Connecticut denied schoolchildrentheir fundamental right to an education free of racial and ethnicsegregation under the Connecticut Constitution.16The liability phase of the case led to a remedial phase in thelast seven years. The road after She/f v. O'Neill has been rough.Whenever the courts put the remedy back into the hands of theperpetrator, they commit the first basic mistake. This dilemmahas existed for the last fifty years but crystallized in the 1990sand continues to change into the twenty-first century. The twobasic remedial options for undeniably segregated and unequaleducational opportunities are integration and non-integration.Integration has been the predominant remedial choice of thecivil rights movement and of the beneficiaries of equaleducational opportunities, namely black and Latino schoolchildren, for the past fifty years.However, Brown's death in school desegregation meant thedeath not only of its promise but also of its future in terms ofremedies. Today, large portions of the non-white communityhave converged with those who share opposite ideologies indominant communities and have concluded that non-integrationis perhaps a better remedy than integration. The view on properremedies, however, comes from different positions. The non-white view is colored by the past twenty-five years of frustrationand disappointment with the progress of integration becausethere is more segregation today than there was at the time ofBrown. They have seen the hostility toward racial integrationand the flight from the urban community, although those are notthe primary causes of segregation. The cause of segregation ismathematically simple: more non-white people moved into the16 See Sheffv. O'Neill, 678 A.2d 1267, 1270-71 (Conn. 1996).286 [Vol.78:281REMARKS OF JOHN C. BRITTAINurban areas and went to the local schools, while more whitepeople moved out of the urban areas or at least sent theirchildren to private schools.17 Thus, urban schools have becomeoverwhelmingly comprised of non-whites. As a result, most non-whites today believe that "school improvement" is morebeneficial for them than school integration. They believe that, ifthey could obtain more money and resources, they could achievethe same success in their SAT and LSAT scores and achieveequality.This, however, raises the ultimate question: Can non-whitechildren in overwhelmingly poor school districts with lowachievement rates ever obtain equal educational opportunities?This question has yet to be answered; however, the potentialremedies include: (1) integration or non-integration, (2)mandatory and voluntary percentage goals for racial and ethniccomposition of schools or no such goals, and (3) inter-districturban and suburban schooling or schooling only within thedistrict. The new call is for local control over education, but localcontrol is synonymous with segregated education.Today, fifty years after Brown, more segregation exists inpublic schools than in 1954. This is the case despite the non-existence of de jure segregation. However, segregation continuesto prevail in nearly every urban school district in America andthe Supreme Court has held this to be legal. Only theConnecticut Supreme Court has stated that, as a moralimperative, "[iut is crucial for a democratic society to provide allof its schoolchildren with fair access to an unsegregatededucation."18 There is also an economic necessity to achievingintegration-our country's economic well-being depends on well-educated citizens. The urban poor are an intricate part of ourfuture economic strength. It is not just that their future dependsupon the state-the country's future depends upon them.17 Interestingly, many middle-income and lower middle-income blacks andLatinos left urban areas as well.13 She/f, 678 A.2d at 1289.20041 287ST. JOHN'S LAW REVIEW

Remarks of John C. Brittain

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