Matthew Delmont: I would love to start by hearing about your work on the Sheff v. O'Neill case. As a historian, I don't have a good sense of what it looks like today to be on the ground trying to litigate one of these cases.
Cara McClellan: One of the things that is both exciting and challenging in doing school desegregation litigation is that it's long-term implementation work. It's different from how people think about other types of litigation. So, when I started working on Sheff, it had already been going on for more than two decades, because it had taken nearly seven years for the court to order a meaningful remedy within the Hartford, Connecticut region.
Sheff led to the creation of over forty magnet schools and approximately 140 other public school placements that students attend through a regional transfer program that didn't exist before. It means that students are going to “Sheff schools” that only exist today because of the court's remedy, and students who would have been in racially and economically isolated settings now have access to diverse schools settings.
But in a lot of ways the challenge with the implementation of Sheff has been that its success has led to many people wanting access to Sheff schools. Sheff was implemented through a choice program, but there have never been sufficient seats for the number of students who want to participate in that program. Students apply to go to a choice school through the lottery, and they can either go to magnet schools or inter-district schools, which are schools that are available to students irrespective of district lines, as long as they live in the region.
Because of the limited number of seats, there has been backlash when families who want access to an integrated, quality school don't get in through the lottery. In a lot of ways, it relates to some of the themes in your book in that the remedy becomes the scapegoat or the target of blame for the problem it was attempting to address, as opposed to looking at the problem that existed beforehand. It's definitely the case that families feel as though Sheff, which was designed to remedy segregation, is the reason that they don't have access to a quality, integrated school. Whereas the reality is that before Sheff, there was no access at all. The remedy is a step forward, but has not gone far enough to solve deeply entrenched inequality.
I think this reflects some of the narratives that you talk about in your book—in terms of the ways that desegregation gets blamed for the problem of racial inequality, whereas without desegregation efforts there would have been no progress to end segregation and the White supremacy it reinforces.
Matthew Delmont: That was definitely one of the things that surprised me in doing the research for Why Busing Failed. Historically, I was looking at the 1960s and 1970s and how large the organized protests against busing were, and how quickly they took on busing as a way to oppose school desegregation—before there was any real meaningful school desegregation. Looking at Boston or New York or Philadelphia or Chicago, they were moving, at that point, a couple hundred—three hundred, four hundred students—from overcrowded schools to these schools that had open seats. And already you had White parents out in the streets by the late 1950s in New York protesting and carrying these signs saying, “We oppose busing.” They claimed they were in favor of neighborhood schools, but what they were fighting to protect were segregated neighborhood schools.
As you get more into the 1970s, once it becomes kind of a national battle against busing, the remedy then gets blamed for the problems, as opposed to looking at the very intentional ways that these schools were segregated, and how those segregated schools were disadvantaging Black and Latino students. It remains a challenge both historically and today to get people to focus on the root problems and how to craft solutions that will make things better, even if they're not yet perfect.
Cara McClellan: One of the things that really struck me, and I didn't think about it in this way until working on Sheff and reading Susan Eaton's book, The Children in Room E4, was just how much we have avoided desegregation in education reform conversations. There's all this conversation about the mystery of how we close the achievement gap: let's try this strategy, and let's try that strategy, and generations of back-and-forth in reforms, but people just don't seem to be willing to talk about the fact that we are still separating students in schools based on a racial caste system, and that has to be connected to the racial achievement gap. It seems like the elephant in the room is so obvious, and yet we go through these waves of different education reform solutions as if we don't know what's at the core of the problem in terms of structural inequality.
Matthew Delmont: That's a great point. When working on something like Sheff or other contemporary cases, what does it look like to try to identify the problem in a way that would be legible to a court? What kind of research do you have to bring to bear? How deep do you have to go historically, or what kind of sociological evidence do you need to bring?
Cara McClellan: In different contexts, courts analyze the issue differently. One way of thinking about it is the way that it's litigated in some school finance lawsuits, which is usually state court litigation. Courts have distinguished between what they call “inputs” and “outputs.” The outputs are the disparities in how students are actually performing. The inputs are the differences in the resources that are being given to different schools, or to different districts. Of course, a lot of times our job as attorneys is also to educate courts about why the same inputs can lead to different outputs when the status quo in different schools is unequal. High-poverty, racially segregated schools need more resources because the playing field is not equal to begin with. As litigators, we're really drawing on social science research and data, to show why the status quo is unequal and the relevance of race and what the research can explain.
Matthew Delmont: One thing that strikes me, both historically and today, is the way district boundaries are drawn. And how that's so different particularly in the Northeast and Midwest than it is in the South and the West. You have these very, very small districts, hundreds and hundreds of districts in New Jersey or New York or Massachusetts, and then these much larger, county-wide districts in other parts of the country. Do those dynamics—the questions about how districts are drawing boundaries, or whether those can be changed or they can be redrawn differently—have those come up in many of the cases you've worked on?
Cara McClellan: Absolutely. That's usually the core issue. As you rightly point out in your book, this distinction between the history of what's happened in the North and what's happened in the South is not a meaningful distinction in terms of how people are experiencing inequalities today. Nonetheless, courts have distinguished between what they call de jure and de facto segregation. So in the context of federal litigation, if you have a history of the state segregating students by law, and the district has not proven that they've eliminated the vestiges of segregation, then the presumption is that the disparities that exist in different contexts are a vestige of that segregation, and the district has a duty to address it. This is really important because it means that there is an ongoing duty for school districts to have to overcome this history.
By contrast, if you're in the context of a de facto school district, you could have the same level of segregation, but if there wasn't an explicit law that said, “Black students go to school here, White students go to school here,” there's no presumption. Instead, the assumption is that the segregation is just the result of people's choices about where to live and no action by the government. If you look at work like Richard Rothstein's Color of Law, there are many, many ways that the federal government, state governments, and local governments have fostered and exacerbated segregation and limited people's choices—for example, through redlining, blockbusting, and permitting the use of racially restrictive covenants. So this distinction between de jure and de facto is not that meaningful when you think about lived reality, yet it creates a whole different ballgame in terms of the rules for litigation and how you're able to hold government actors accountable for the realities that exist on the ground. If you're in a de facto, northern city, where there wasn't a history of segregation by law, you have to actually prove intentional discrimination. You have to prove that the actors somehow discriminated against students in order to have any accountability or responsibility for them to address the segregation that exists.
Increasingly, lawyers have looked to state court remedies like Sheff. The theory in Sheff was that the constitutional provision under the Connecticut Constitution didn't make this distinction between de jure or de facto. When you have district lines that are assigning students to schools based on housing patterns that divide communities by race, that is enough to mean that there is school segregation, regardless of whether there were laws that explicitly said only Black students can go to school here and only White students can go to school here. The second thing that was unique about Sheff was that, historically, a major impediment was that courts had said unless you could prove that the segregation that exists between school districts was intentionally created by local actors, you could have no remedy to address between-district segregation. So, there were no inter-district remedies that could be created unless you could actually prove that different districts intended to create segregation, which you can imagine is incredibly hard. If the segregation was a result of White flight—White families moving to the suburbs, which was happening in many places in response to Brown—you had a situation where a school district that was once diverse was now very racially isolated, because everyone had moved out of the district to resist Brown, and you couldn't remedy that either because White flight wasn't de jure segregation. Sheff was attempting to respond to both of those challenges, and actually making sure that there was a remedy despite all of the barriers to desegregation created by federal case law. The Sheff attorneys looked to the state constitution to ask how we can have inter-district remedies that address the realities as they exist on the ground in a northern context, where through a state constitution, we wouldn't be required to prove de jure segregation.
I'm curious about your thoughts, because your book does such an excellent job of talking about the many ways that the de jure/de facto distinction doesn't actually reflect our lived realities.
Matthew Delmont: I think one of the most important things that I was trying to make clear in my book, and this is something historians have been trying to hammer home for two decades now, is that the idea of de facto segregation in the North is really a myth. Scholars like Jeanne Theoharis, Ansley Erickson, Matthew Lassiter, and many others have been able to demonstrate in so many of these different cities that what people often refer to as de facto—meaning segregation produced by market forces, or perhaps with no intention—was in fact anything but. There were intentional decisions made by local politicians, by real estate agents, and by school officials in terms of where they draw the zoning boundaries. These were an overlapping series of decisions that were very intentional. Once many of these cases got into court, in most cases being advanced by the NAACP-LDF, they would inevitably find—in cases like Pontiac, or Las Vegas, or Boston—that these were intentional de jure segregation cases. There was nothing innocent or accidental about it.
One of the things that stuck with me in doing that research was the quotes from the NAACP lawyers at the time saying that they didn't have anywhere near the resources they needed to be able to prove the intent to segregate in all these different districts, all across the country. That was one of the main handicaps they faced. When they had the ability to look—because it required them to look decades back at the meeting minutes for school boards, and how those overlap with the population demographics, and overlapped with real estate decisions, and with different decisions by local government—they could almost always prove that these were intentional cases. But that was 5 or 10 percent of all the different districts that they might have wanted to be able to bring cases in.
Hearing you describe the situation today, I think the fact that we weren't able to have proof of intentional segregation in so many of these places in the 1960s and 1970s shapes the terrain of what's possible legally in the 1990s, 2000s, 2010s, and the 2020s—in ways that required just very innovative approaches for contemporary cases.
Cara McClellan: I think what you're describing is a reality still at LDF. One of the things that I most enjoyed about being an LDF attorney was the fact that our work was so interdisciplinary. It required staying up on what social science researchers are doing at the cutting edge and being able to incorporate their work into your cases. But to your point exactly, it requires a lot of resources to be able to bring experts in who can really educate the court about how institutional racism is impacting people today, in a way that is clear and supported by data so that a judge may draw conclusions based upon it. There's a lot of rigorous research out there now, but it is resource-intensive to be able to litigate in an interdisciplinary way.
Matthew Delmont: Obviously a lot has happened in the last couple of years. What's your sense of where we are today in 2022 versus where we might have been prior to the summer of 2020?
Cara McClellan: On the hopeful side, I think that there is increased awareness and willingness to talk about institutional racism, and to grapple with racial inequality as a structural issue, as opposed to constantly just trying to say “Well, I'm not racist,” or “It wasn't my intent to discriminate.”
But what we're seeing is progress and retrenchment in that there is a real backlash to the increased prevalence and more mainstream discussion of institutional racism. We see that in anti-CRT legislation, where literally across the country and in the majority of states at this point, there is some form of a so-called White sensitivity law, or book banning that prohibits talking about or accessing information about racial inequality and White privilege. The idea that these concepts are so threatening that they are literally being banned just shows how deeply divided we still are around what is even the appropriate language in talking about history and a common baseline understanding.
I wonder, in your research looking at progress and backlash, how you see what's going on today in relation to what's happened historically.
Matthew Delmont: There are really strong historical echoes. Just as you're saying, this sort of groundswell movement of more and more people both taking to the streets to protest, actively demanding racial justice, addressing police brutality, and, as you're saying, finally starting to see racism as a systemic issue. I think the closest we can see something comparable to the summer of 2020 was in the 1960s.
Historically, we know immediately after that happened in the 1960s, you had a very strong backlash not just at the local level of politics, but also at the national levels. That swung the country in a very, very different direction, and put in place a lot of laws that we're still living with today, which really closed a lot of the opportunities and potential that people saw in that previous civil rights movement.
Living through it in real time today, it's not surprising, but it is disturbing and frustrating to see it happen and play out in the way it has. It's hard to say we're any closer to having meaningful racial equality or meaningful racial integration of schools. As you're saying, we have the majority of states in the nation that have considered some sort of legislation that would make it impermissible to talk about the reality of racism in our nation's history. That's not going to do anything positive in terms of trying to produce an educated citizenry that'll be more equipped to have a thriving multiracial democracy in the future.
The more cynical part of me thought in that summer of 2020, when there were the calls to defund the police, which is one of the main phrases from Black Lives Matter, I wouldn't be surprised if it was easier to defund the police than it would be to actually integrate schools. The depth to which so many Americans hold to the status quo of how education is structured, in terms of hoarding privilege and resources for a few at the expense of others, I think this is even more controversial than a lot of the demands that were coming out in 2020 regarding police brutality and law enforcement. My gut sense was, there are more people on the left who would be happy to support a call to defund the police than who would support meaningful integration and resource allocation in schools.
Cara McClellan: One of the main challenges in education is that many people see themselves as simply protecting the interests of their kids. That makes it so difficult for us to have the collective action that's needed to provide services in a more efficient and equitable way for everyone, because it takes some level of being willing to give instead of hoard resources. The same people who are willing to scream “Black lives matter” and protest are sometimes the same White progressives who are exerting White privilege within their own children's schools in ways that mean that students of color don't have access to AP classes, or even access to specialized-admission schools in different contexts. So the translation between equity in different contexts seems to stop when it comes to education.
Matthew Delmont: I think the challenge of trying to think across different scales—thinking about the individual scale is what one cares about for their own kids, their own family, but then that other, the larger scale of neighborhood level, or community level, or regional or state level—that's really hard with education. Obviously people are going to care very deeply about their own child's education. No one would fault anyone for caring deeply about their own kid's education. But it's being able to couple that with care about what's going to be the best for our community writ large, or what's going to be the best for our city or our region. I think that's the piece that has been challenging historically to put resources behind and to get people to actually commit to. It's easier for people to speak in the abstract, to say that they support the ideals of Brown v. Board when it's happening somewhere else. But when it actually comes to play in their own school districts, or when it seems like it might disrupt the status quo of how education has been structured, it's harder to ask people to make those kinds of changes, or to give it some time to see if we can get to a more equitable, community-oriented structure of schools that would benefit a large number of people.
Cara McClellan: I'm curious, going back to comparing what's going on now and the backlash and patterns you saw in the 1960s, how you think about the media's role right now.
Matthew Delmont: As a historian, one of my key sources of evidence is the media. I'm interested in how media coverage can shape people's perceptions about what's happening, and also in how it can shape the resources we have to be able to talk about history.
In the 1960s, one of things that happened was that relatively small-scale protests, by White parents who were upset about relatively small-scale school integration efforts, received a huge amount of media attention. They started using the term “busing.” But you had enough media coverage of those protests that it started to spread nationally. So people in Seattle, or in Cleveland, or in Dallas would have already seen or read about protests by White parents in Chicago, in Boston, in New York. It starts to seem like a movement. The media helped to create the sense that there was a movement afoot of White parents who were upset about busing that I think helped to build on people's already existing preferences or assumptions about how they would like to approach schooling.
If you're already trying to ask people to do something they might not be comfortable with, it doesn't help to see a half dozen or dozen examples of parents and other cities who have the same demographics, and who are out in the streets protesting against something. It makes it that much harder for you to be willing to try either a voluntary or court-ordered desegregation plan when it comes to your own city.
I also think what happened in the 1960s is that, frankly, the media got bored of covering Black people, and they said as much after the fact. The media, which was largely based in New York, was happy to cover civil rights protests in Little Rock, and Montgomery, and Selma, and to pat themselves on the back for helping to reveal the horrors of racism in the South. They were much less eager to cover contemporary civil rights protests that were happening in New York City, which had some of the largest civil rights protests of the era. Then by the mid-60s, they were bored of covering any civil rights protests at all, so they started to turn their attention to something new. Those new things were these White protests that often modeled themselves after the civil rights movement, but used those protest tactics to call for a resistance or an end to integration or school desegregation. From the media's perspective, they're always chasing the new story, and so they thought audiences have seen enough of Black protests, they want to see what the new thing is, so they would put their cameras in front of these White protesters. Even if they were relatively small in number, they still received the same kind of large-scale treatment that Martin Luther King and other Black civil rights activists had earlier.
Fast-forward to the present, a very similar dynamic happened in 2020. Black Lives Matter received a huge amount of media coverage in that summer of 2020, but by the fall the media largely got bored and started turning attention back to Trump supporters and why they felt left out or why White people felt threatened by some of the demands of Black Lives Matter activists.
So I think I would describe the media as an inconsistent ally with regard to racial justice, in part because it's not about the particular political convictions of any journalist or any producer. Those exist, but they don't matter as much as the commercial incentives that exist for the media. The commercial incentives are to go with whatever is going to be the buzziest, potentially most violent, potentially most exciting, or newest-seeming story that at some periods of time favors equal rights and favors Black activists, but in many other cases it favors the White protesters, who, more than anything, want to uphold the status quo.
For me, part of what I felt historically was that lawyers in the 1960s were up against a huge challenge, both an educational system that had been designed to disadvantaged Black students, but also a media apparatus that was designed to shape a lot of people's perceptions about what was actually going on. It made it harder for people, including judges, to actually believe that intentional segregation could exist in places outside of the South. I wonder, does social media or mainstream media factor in at all to your work today? And how do you and your colleagues have to conceptualize what makes for a successful argument?
Cara McClellan: In today's environment, “critical race theory” is the label that conservatives have effectively weaponized to try to politicize and silence any discussion of race, even in discrimination cases. I have had that come up in litigation with regard to the use of expert testimony about race. There's this conflation of any and every form of race-conscious discussion as “CRT” to attempt to shut down any discussion of race or racial inequality, even in litigation. Surely that started with local organizing, but it's a narrative that has been lifted up and spread with the help of media and social media without necessarily providing context for people to understand what is and what is not critical race theory, or what is just an attempt to strategically silence conversations about inequality.
Obviously, juries and judges in cases don't live under a rock. They are impacted by what conversations are happening and the media. Not only are civil rights litigators going to be up against experts who now try to shut down conversations about race by saying “that's Critical Race Theory”—and that is such a politically loaded term that it's effective sometimes in limiting conversations about race—but there are also judges who are going to find that persuasive, that saying someone's research or someone's framing of an issue is critical race theory will be effective in convincing them that they don't have to take it seriously, or that they shouldn't really engage with the substance of whatever that person's saying. So you can imagine that is incredibly difficult in the context of a race discrimination case where literally the reason we're here is to talk about what ways race did matter or did not.
Matthew Delmont: It's got to feel like a “through the looking glass” moment. You can't talk about race in a school segregation case?
Cara McClellan: Right? What else are we here to talk about?
I wanted to ask you about the role of Black media—because you really talk about a time when there were segregated media and audiences—and query how much that's true today. Surely, through Twitter and other outlets, there's some level of separate media coverage and consumption happening. But I'm curious about that aspect of your research and about how you think about it today.
Matthew Delmont: Black newspapers were a huge part of doing this research on the 1950s, ’60s, and ’70s. Obviously, when it comes to Black newspapers, they were able to speak honestly about what the problems were much earlier, much more clearly, in a much more nuanced way than most mainstream White papers were. Particularly in the North, being able to call out segregation early and vigorously and often. There's an editorial cartoon that sticks in my mind from the New York Amsterdam News, a major Black paper in New York, from 1954, just after the Brown v. Board decision, where it's really trying to call attention to the fact that New York schools are just as segregated as those in the South. I think that one is so powerful because it was true historically that there were parents and activists trying to fight school inequality and school segregation in New York before Brown v. Board, including Ella Baker and Kenneth Clark. But then fast-forward to today: it remains one of the most segregated districts in the country, and you have these continued efforts to fight against segregation.
I think the other thing that is true for the Black press historically is that the segregation was really complicated for a lot of Black communities. A lot of the ways that these court orders were implemented negatively impacted Black communities. They led to the closure of Black schools and a loss of jobs for Black teachers and principals. Often there were one-way busing programs that sent Black students into hostile White environments. Those things were called out in the Black press as well. The thing that was true throughout was that the Black press, Black parents, and civil rights activists were advocating for better opportunities for Black students. There was no single definition of what that would look like in every community, but at the end of the day they wanted better opportunities and better educational outcomes for Black students. That commitment certainly wasn't shared by the White mainstream media.
Looking at social media today, one thing that stands out to me is the prevalence of contemporary student activism. On Twitter, I've been following groups like IntegrateNYC, groups of students who are doing the same thing that students of color have been doing for three, four, or five decades, which is calling out unequal conditions in their own cities. But then also trying to really articulate what successful desegregation would mean. That it's not just about school demographics, but about restorative justice. It's about resource allocation. It's about having a context to go to school that really is fulfilling and enriching for them. That's just tremendously powerful that they're able to use social media in the way they've been using it to call attention to what's not working, but then also to articulate a really clear vision of how things can be better.
Cara McClellan: I think one of the misconceptions about school desegregation work is the idea that it was solely focused on student assignment. To your point, that's exactly how it got implemented in some contexts. But in terms of what the case law requires, under Green v. County School Board of New Kent County, student assignment was one factor, but it was not only student assignment to buildings, but also student assignment within schools to different classes. Another factor was faculty and staff—are they integrated? There were the school facilities, the extracurricular activities. And then there was this factor called “quality education,” which included discipline. A lot of the work that I did at LDF on our school desegregation cases was related to school discipline.
It's really striking to me—in your book and also just in reading reports from the time, like the Southern Regional Council's Report—how quickly these so-called second-generation discrimination issues emerged in the implementation of Brown. That one form of resistance to desegregation was discipline and repeated suspensions or expulsions that made Black students drop out or get pushed out of school, despite the requirement to integrate through Brown. These issues were surfacing so quickly after 1954.
Looking back at some of the historical documents that you're relying on, where they were identifying these issues so early on, and to see that we're still really struggling with those same issue today. So many of the students who were being disciplined and pushed out were exactly the students who were protesting the inequality that existed in the school system. And that still is the case today. Often when you talk to students about what they're being disciplined for—especially Black and Brown students, students who are gender-nonconforming, et cetera—what they're being disciplined for is not conforming to social norms or pushing back against inequities within their school.
Matthew Delmont: I saw on social media this past spring that someone had done a roundup of a dozen or more different student walkouts of primarily Black and Latino schools, where students were walking out because of the racism they experienced in schools, either from fellow students or from teachers. This speaks to the dynamism of student activism today.
Before we go, I have to ask you about Brown v. Board and your sense of it. Obviously, the composition of the Supreme Court is different today than it has been in other parts of our nation's history. As you look at the next five or ten years, do you have any thoughts on how we should be thinking about Brown v. Board, either in terms of what might come before the Supreme Court or how we should be thinking about that legacy as it relates to cases that might come at the state level?
Cara McClellan: I think we should be vigilant about the chipping away of Brown in different contexts. During the Trump administration, we saw multiple judges go through confirmation hearings who would not say that they thought Brown was rightly decided. They just won't say one way or another.
Even so, I think it's unlikely that a direct challenge of Brown would be the way we see its undoing. I think more likely is that we'll see a chipping away in different contexts and an increasing willingness to suggest that equality is color-blindness and that it's unconstitutional to consider race, even to address inequality, and the conflation of any attempt to address inequality or segregation with discrimination.
I also think that we're going to keep seeing a willingness to defund public education, or see support for school options that have been historically used as bastions of White flight. For example, take the case from the Supreme Court this term, Carson v. Makin, which is a lawsuit that came out of Maine that essentially said Maine was required to fund religious schools as part of its voucher program. This is another form of the court chipping away at the promise of Brown by ignoring how religious schools have been used to maintain racially segregated settings. Increasing support for segregated charter school options and vouchers, and permitting the defunding of public education, are all ways of undermining the desegregation that has been achieved, without actually overruling Brown.
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