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The Supreme Court Decision That Prevented Real Integration | A Prison Strike Against Slavery | A Gideon for Civil Suits? | Automatic Voter Registration An Idea Whose Time Has Come | Privatizing Public Parks
The Supreme Court Decision That Prevented Real Integration
“(I)n the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” That iconic statement was the essence of the unanimous Brown v. Board of Education decision by the U.S. Supreme Court in 1954. Over the next 20 years the Court and many lower courts, issued dozens of decisions to clarify and strengthen that ruling. To overcome the lopsided racial imbalance within cities, school districts embraced, or were forced to embrace, busing of school children from black-dominant schools in virtually all black neighborhoods to white-dominant schools in virtually all white neighborhoods.
But what happens when an entire city becomes so racially imbalanced that real desegregation can no longer be effected internal to the city? In 1955, in what is sometimes referred to as Brown II, the Supreme Court envisioned and condoned actions that extended the desegregation strategy beyond municipal and school district borders when it specifically advised District Courts they might consider a “revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis…”
The 1955 decision was made when a majority of Justices had been appointed by FDR. What would happen when the Court’s composition changed? The nation was to find out in 1974. The case grew out of a lawsuit by Detroit parents accusing the Detroit School District of willfully and consciously segregating schools. The District Court agreed with the parents and went further, finding that segregation in Detroit was a result of actions by the state legislature, the Governor and the Attorney General as well as Detroit officials. And the Court pointed out that in Michigan, unlike in many states, local school districts are more agencies of the state than autonomous bodies. The Michigan Supreme Court had been clear: “(e)ducation belongs to the state.”
The District Court noted that in 1970 the Detroit School Board had begun to implement a desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened to thwart the plan. In the 1950s at least two suburban school districts had bused students past white schools to a more distant black school in Detroit.
The Court noted Michigan’s long practice of consolidating and merging school districts, even without the consent of local districts or local citizenry. In 1912 the State had 7,362 local districts. By 1964 this had fallen to 1,438, in 1968 to 738 and in 1972 to 608. Moreover there was little or no relationship between school districts and local political units. Of the 85 suburban school districts surrounding Detroit, 17 were in two counties; two were in three counties. One served five municipalities while other municipalities had as many as six school districts.
Having concluded that the State of Michigan had the affirmative duty to remedy the situation, the District Court evaluated three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective. The percentage of Negro pupils in the Detroit student population had risen from 56.7 percent in 1966 to 63.6 percent in 1970 and was to rise to 71.4 percent when the Supreme Court made its decision in 1974. The racial composition of the metropolitan school population in 1970 was 81% white and 19% Negro. The District Court concluded that a Detroit-only plan only exacerbate the problem, changing “a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.” The only effective strategy involved looking “beyond the limits of the Detroit school district … since [s]chool district lines are simply matters of political convenience, and may not be used to deny constitutional rights.”
The Court of Appeals agreed. Without an inter-district remedy the result would be “an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.”
In 1974, by a 5-4 vote, with Richard Nixon having appointed 4 of the 5 Justices voting in the majority, the U.S. Supreme Court overturned the District and Appeals Courts’ decisions. It declared that a federal court “may not impose a multi-district, area-wide remedy… when there is no finding that the other included school districts have committed acts that effected segregation within the other districts. It must be first shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district.”
Justice Thurgood Marshall, who 20 years before had argued the Brown case before the Supreme Court understood the profound negative implications of the majority’s decision. “After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards,” he wrote in dissent. “Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion.”
In 2016, EdBuild, a nonprofit focusing on modernizing the financing of public schools, confirmed the validity of Marshall’s prediction. “When the Supreme Court established that desegregation orders could not be enforced across district boundaries, it significantly reduced the possibility of achieving meaningful integration. And because America relies so heavily on local property taxes to raise funds for education, the inability to cross district boundaries institutionalizes income segregation and contributes to vast funding disparities among public schools. “ Some 26 million children, 48 percent of school age children, are living within high-poverty school districts, effectively trapped by impermeable borders,
EdBuild’s new report, Fault Lines: America’s Most Segregated School District Borders identifies the 50 most segregated neighboring school districts and the poverty rate of wealthier school systems was just 9 percent while that of their poorer neighbors was, on average 46 percent.
At the time of the Supreme Court decision the poverty rate among residents living within the Detroit Public Schools was 15 percent. The abutting Grosse Pointe Public School System had a poverty rate of 3 percent. By 2012, the 12 percent gap had grown to a 43 percent chasm. Half of children living within the Detroit Public Schools were impoverished; 7 percent in Grosse Pointe were.
Birmingham, Alabama has a 49 percent child poverty rate, 8 times higher than the contiguous school districts of Vestavia Hills and Mountain Brook. The Balsz Elementary School District that serves students on the east side of Phoenix and shares its northern and eastern borders with the Scottsdale Unified School District has a school-age poverty rate of 51 percent compared to 10.6 percent in Scottsdale.
Back in 1973, one study found, “A further glaring inequity resulting from the current systems of school finance is that variations in per pupil expenditures among school districts tend to be inversely related to educational need. City students, with greater than average educational deficiencies, consistently have less money spent on their education and have higher pupil/teacher ratios than do their high-income counterparts in the favored schools of suburbia.”
In 2016 the EdBuild report found that statement is still valid. High-poverty districts usually have less per-pupil funding than wealthier districts do in the same state, even after local tax revenues are supplemented with state funds. For example, 7 percent of Scottsdale’s students have limited English proficiency, while in immigrant-dense Balsz, a full 46 percent do. Despite the extra costs associated with providing supplemental services for students in poverty and those with limited English proficiency, Scottsdale receives $9,174 per-pupil in state and local revenues, while Balsz receives a full 30 percent less – just $6,438 per-pupil.
A Prison Strike Against Slavery
On September 9, 1971, to protest squalid and degrading conditions, inmates in Attica’s D yard took over their section of the prison and held it for four days. As one of the rebellion’s leaders L.D. Barkley, explained, “We are men, we are not beasts, and do not intend to be beaten or driven as such.” Four days later state troopers stormed the prison. Barkley and 38 other men died including 10 prison staff. Four others had died earlier.
The New York state corrections Commissioner agreed to 28 of the inmates’ demands for changes intended to ameliorate intolerable prison conditions. Some improvements did occur. Before the riot, prisoners were given one roll of toilet paper a month and permitted one shower a week. Inmate letters written in a foreign language were thrown away. Islam was not recognized as a legitimate religion. Today, Muslim chaplains are in most state prisons; inmates can take high school equivalency tests in Spanish; and prisoners are entitled to more regular showers.
But a 2016 analysis by the New York Times and the Marshall Project many key promises have not been kept.
- A permanent ombudsman service. This never happened.
- Applying New York’s minimum wage standards to all work by inmates. This never happened. The current wage paid to prisoners is from 10 cents to 25 cents an hour. That figure has not increased in at least 20 years,
- Adequate legal assistance to all inmates requesting it, or permit them to use inmate legal assistance of their choice in any proceeding whatsoever. Prisoners are provided no representation in disciplinary matters nor at parole hearings.
- A program for the recruitment and employment of a significant number of black and Spanish-speaking officers. In 1971 there was just one Hispanic officer among more than 500 guards at Attica. As of July 1, 2016, 96 percent of the officers at Attica were white, 2 percent were Hispanic and 1 percent were black. About two-thirds of the state’s inmate population is black or Hispanic.
- A 30-day maximum for segregation arising out of any offense. Restoring the individual to regular housing as soon as possible, consistent with safety regulations. Only in the last five years has significant progress been made in reducing the use of long term solitary confinement, a result of active, ongoing activism, strong legal action, and an equally strong media strategy.
On September 9, 2016, the 45th anniversary of the Attica uprising, prisoners from 25 states and 54 prisons launched a national prison labor strike. As Kinetik Justice, a co-founder of the Free Alabama Movement (FAM), a prison-based organization that has been mobilizing across Alabama since 2012 and one of the organizers of the strike explained to Amy Goodman, “We’ve tried petitioning through the courts. We’ve tried getting in touch with legislators and so forth and we haven’t had any recourse and therefore we understood that incarceration was pretty much about our labor and the money generated for the prison system. Therefore we organized around our labor and use it as a way to bring about reform in the Alabama system.” Before the nationwide prison strike, prisoners in 4 prisons in Alabama went on strike for 10 days beginning on May 1st, international Labor Day. Alabama’s prisons are the most crowded in the nation.
Of America’s 2.4 million prisoners, some 900,000 work, mostly for the prison itself or the public sector. Many earn cents on the hour. The minimum wage for prisoners in Georgia and Texas, for example, is zero.
“…all of the prison systems in this country are based on prison labor. They couldn’t run without the prisoners,” Noelle Hanrahan, an investigate journalist and director of the multimedia production studio Prison Radio tells FAIR. “If people refuse to go to work, if they refuse to get in line, if they refuse to do the simplest things, they are often brutalized in the extreme, and they are often put in isolation and control units and the hole.”
Mr. Justice was not using hyperbole when he condemned the prison system as “a continuation of the slave system.” In 1865 the 13th Amendment outlawed slavery but with a giant loophole: “except as a punishment for crime whereof the party shall have been duly convicted.” For the next 150 years that loophole has been used to keep millions of blacks (and increasingly Hispanics) in actual or virtual servitude. A just-released film explores this issue in-depth. Appropriately, it’s called The 13th (and is available on Netflix).
Regrettably, the issue of forced prison labor at cents per hour never reached national visibility. Most of the nation never even heard about the strike. Six days after its launch FAIR analyzed media coverage. PBS, NPR, FOX, CNN, MSNBC did not cover it at all, nor did the New York Times, Washington Post, Wall Street Journal or USA Today.
A Gideon for Civil Suits?
In 1963, the Supreme Court held that defendants in criminal cases have a Constitutional right to counsel. This right did not extend to civil cases. Free legal assistance in noncriminal cases is very rare. A recent study in Massachusetts found that two-thirds of low-income residents who seek legal help are turned away. Nationally, important civil legal needs are met only about 20 percent of the time for low-income Americans.
A new movement seeks to provide help in a subset of civil actions involving basic needs like housing, safety and custody, observes John Pollock, coordinator of the National Coalition for a Civil Right to Counsel.
In 2009, the California legislature enacted the Shriver Civil Counsel Act, named after Sargent Shriver, former head of the Peace Corps and a champion of legal aid to the poor. The Act funds seven pilot projects around the state to provide representation for the poor when critical civil rights are at stake as well as to improve court procedures to protect defendants’ rights when counsel is not available.
The largest of the pilot programs involves a collaboration of four Los Angeles Programs coordinated by the Neighborhood Legal Services of Los Angeles County. It focuses on people facing eviction in some of Los Angeles’ poorest neighborhoods but also represents low income people involved in child custody and protective orders against abusers, and guardianship disputes. The Eviction Legal Assistance Center is located inside the downtown Stanley Mosk Courthouse, where more than 25 percent of the County’s 70,000 eviction cases are filed each year, and where most families facing eviction have no legal representation. The Center has about 16 lawyers and is providing full or partial assistance to one-third of the 15,000 tenants who face evictions each year in that courthouse alone.
On the other coast, New York City could become the first jurisdiction in the country to require lawyers for all lower-income people facing eviction. The City Council is considering a bill that would provide free legal representation to anyone facing eviction or foreclosure who has an income of less than twice the federal poverty line. In New York City, that means an individual making below $44,000. Tenants in about 128,000 cases — more than 80 percent of all housing court cases each year — would qualify.
The New York Times notes, “There are few legal fights more lopsided than landlords suing to evict their lower-income tenants. In New York City’s housing court, it’s usually a team of lawyers representing the landlord going against a tenant, unrepresented and alone.” When tenants represent themselves in court, they end up being evicted almost half the time. With a lawyer, tenants win 90 percent of the time.
In Massachusetts, in the past year, some 33,000 low-income residents were denied the aid of a lawyer in life essential matters involving eviction, foreclosure, and family law such as cases of child abuse and domestic violence. A Massachusetts report, Investing in Justice, found that increasing state funding for representation would be a “smart investment.” For every dollar spent representing families and individuals in housing court, the study concluded, the state would save $2.69 in other services such as emergency shelter, health care, foster care and law enforcement. Swift legal aid to victims of domestic violence would avoid large medical and other costs. A survey of judges also found that unrepresented litigants add to mounting court costs: A lack of representation consumes court staff time needed to assist litigants, which in turn slows down procedures and results in an unclear presentation of evidence.
Automatic Voter Registration: An Idea Whose Times Has Come
Over 50 million Americans who are eligible to vote aren’t registered. Thousands of people who arrive at the polls thinking they are registered discover they aren’t, or that they forgot to change their registration after a move.
In 1993, to encourage registration the U.S. Congress enacted the Motor Voter Act. The MVA requires states to offer to register any eligible citizen who seeks a new driver’s license or public assistance. But many states don’t see this as a priority and overworked and undertrained state workers view it as an after thought. For those who want to register, the process is confusing and time consuming.
Citizens must take the responsibility to vote, but government should do its part by clearing bureaucratic obstacles to the ballot box. Ten years ago the Brennan Center made the case for automatic voter registration. Instead of simply offering people the opportunity to register eligible voters would automatically be registered without requiring the potential voter or a DMV clerk to take any additional action. People could opt out of registration, but they won’t have to opt in.
In a recent report, The Case for Automatic Voter Registration, the Brennan Center for Justice at the NYU School of Law argues that automatic registration would be the centerpiece of a modern voter registration system comprised of three other components:
- Portability: Once eligible citizens are on a state’s voter rolls, they remain registered and their records move with them.
- Online Access: Voters can register, check, and update their registration records through a secure and accessible online portal.
- Safety Net: Eligible citizens can correct errors on the rolls or register before and on Election Day.
In the last two years, automatic voter registration seems an idea whose time has come. In 2015, Oregon became the first state to adopt the practice. California soon followed. So far in 2016, Vermont and West Virginia have passed such laws. Connecticut did so through agency action.
In Oregon, automatic registration already has added more than 200,000 people to the voter rolls, an increase of nearly 10 percent. In California, where about 7 million people are eligible to vote but not registered, the state is still setting up its program. The California’s Public Policy Institute (PPI) estimates it could add more than 2 million new voters and would diversify the electorate, making it more closely resemble the population of the state.
Support for automatic registration is largely bipartisan. In West Virginia the Republican controlled legislature passed the bill. Which isn’t to say rank partisanship is absent. In August, within days of each other both Chris Christie, Republican Governor of New Jersey, and Bruce Rauner, Republican Governor of Illinois, vetoed automatic voter registration bills passed by their respective legislatures.
Privatizing Public Parks
After the fiscal crisis of the 1970s, funding for parks was slashed. Public parks were falling into disrepair and becoming drug and crime havens. Some described Central Park’s Great Lawn as “more like a dust bowl.” Cities began to create “public-private partnerships”, private non-profit groups often called Conservancies, to pick up the financial slack.
The Central Park Conservancy, founded in 1980, rejuvenated that great park, inspiring cities from Atlanta to San Francisco to create their own private-public partnerships. Bryant and Madison Square parks in New York City, once known as “needle parks” became other widely cited examples of successful urban renewal.
But these private public partnerships have a dark side. They seemingly inexorably begin to emphasize the private while diminishing the public. Bryant Park, located behind the 42nd Street Library is a case in point. As one observer describes the situation, “With a CitiBank ‘CitiPond’ ice skating rink, a Southwest Airlines ‘The Southwest Porch’ cafe, and exorbitant fees for events that discourage non-profits and can only be afforded by corporations, Bryant Park has become more of a corporate playground. Its over-commercialization and selective policies lend to a park that is something less than a true public commons.”
While Bryant Park, Madison Square Park, Central Park and the newly created Highline benefit enormously from private investment, New York City’s other 1,700 parks big and small suffered from continued neglect as the City slashes its public park budget.
In 1960 New York City parks maintenance and operations claimed 1.4 percent of city funds. In 2013 this had dropped to 0.5 percent. As Patrick Arden has noted, the full-time workforce of the Parks Department had dropped by more than half since 1970, 25 percent just since 2009.
The result? According to Geoffrey Croft, president of the watchdog group NYC Park Advocates, “New York has created a two-tier parks system. One for the rich, the other for the poor.”
In 2008 Madison Square Park Conservancy, Arden observes, employed 28 maintenance staffers, guards and administrators at salaries as high as $185,000, while southeast Brooklyn — with 1,200 acres of parkland in predominantly African-American neighborhoods like Canarsie and Flatlands — had just one dedicated maintenance worker.
In 2013, New York Times urban affairs reporter Michael Powell described the bifurcated reality of New York City’s parks.
“New York’s parks offer a feudal landscape of the privileged and underprivileged. There is the squire’s fancy that is the Brooklyn Bridge Park, the Von Furstenberg/Barry Dillered ornament that is the High Line, and of course the grand duchy that is the Central Park Conservancy. These largely private operations are not for plebes. The Central Park Conservancy manages $220 million in assets, and has four officials who make more money than the city parks commissioner, Veronica M. White. At a High Line fund-raiser, a host held aloft a million-dollar check and asked for a match. Another $1 million check was written on the spot. At the other end of this spectrum, the cracked path around the Shore Park-Verrazano Narrows offers an exercise in horizontal mountain biking. At Flushing Meadows-Corona Park children play in dry wading pools and lake paths are unnavigable without machetes.”
The history of Brooklyn Bridge Park demonstrates the process by which successful citizen activism morphs into significant commercialization. Arden tells the story. In 1984 a group of Brooklyn Heights residents designed a plan for putting a park on a 1.3-mile stretch of piers, warehouses and parking lots on the East River. City officials said capital funds were available, but not for maintenance. Determined residents raised funds, hired a landscape architect, formulated a $3.4 million annual maintenance plan and paid consultants to figure out ways to raise more than $4 million a year, mostly through a restaurant and a small hotel with a conference center.
In 2002 Governor George Pataki and Mayor Bloomberg committed $150 million to build Brooklyn Bridge Park but while doing so created the private Brooklyn Bridge Park Development Corporation (BBPDC) governed by a board of directors appointed by Bloomberg and Pataki. In 2004 the city and state released a different plan. “Gone were the playing fields, pools, skateboard half-pipe, recreation center and amphitheater. In their place was a kayaking area, ‘dune landscape’ and berths for 180 yachts. The new plan had high-rises in the park, with 1,250 luxury condos, as well as a hotel, retail and restaurants — all meant to pay for upkeep. The cost has since ballooned to $350 million. The operating budget jumped to $15.2 million.” This included a 31-person security force with eight armed guards.
In the best of all worlds cities would see upgrading and maintaining their public parks as a high budget priority. Private money can be an excellent complement to public funding, but as attorney Jim Walden explains, “(A)s long as the private interests that are contributing to the park understand that it’s no different than making a charitable contribution, once you give the money, you’re done. There wouldn’t be a problem. The problem is control. With the private money coming in to the park, there is some giveaway of control that ultimately allows a foot in the door, ultimately resulting [in] the park either changing, shrinking or going away completely.”
Michael Powell asks, “The question is whether in this densest of American cities, privatized parks serve the broadest public good.”