Many of those precedents center around the concept of a school-desegregation order—essentially, a set of court instructions governing how a school district must integrate itself. By Supreme Court rule, these orders can only be instituted when a district has been intentionally segregated by government policy.
The first desegregation lawsuits were all in the Jim Crow south, where intentional racial isolation was easy to see: All the white children were assigned to one school, all the black children were assigned to another, and any mixing was illegal. (Indeed, Section 256 of the Alabama state constitution—still present, though no longer in effect—says that “no child of either race shall be permitted to attend a school of the other race.”)
But over time, courts came to realize that many districts outside the south were intentionally segregated, too—although often in less explicit ways. In Minneapolis, for instance, a federal judge found in 1972 that, although the district’s rules were ostensibly colorblind, school leaders had used a combination of optional attendance zones, careful boundary drawing, and other devices to ensure that schools in the city’s northwestern quadrant stayed mostly black—and that schools elsewhere stayed mostly white.
When a court finds that intentional segregation has occurred, the district is obligated to eliminate not just the segregative policies, but to also, in the Supreme Court’s words, “eliminate from the public schools all vestiges of state-imposed segregation.” In short, the district is required to erase, as fully as possible, any remnant of the unconstitutional segregation that had occurred. Remnants might include racial concentration in schools, school-resource disparities, and segregated teacher workforces.
A finding of intentional segregation usually leads to the creation of a desegregation order. The order lays out all the different actions a district must undertake to ensure that it is eliminating vestiges of unconstitutional segregation, and, in theory, lasts until those vestiges are gone. Typically, as long as an order is in place, the case that created it remains open, allowing judges to supervise the district’s progress. This gives courts a remarkably broad set of tools to compel integration.
For instance, courts can monitor the integration of all aspects of day-to-day school life, ranging from teacher placement to the drawing of attendance boundaries to athletic programs. Districts under a desegregation order are generally required to seek court approval before undertaking actions that might impair progress towards integration, such as Gardendale’s effort to form a splinter district. If a district is especially stubborn, the court can effectively dictate school policies from the bench. And court orders don’t envision a one-size-fits-all approach: Judges have discretion to continually tailor integration plans to the unique local demographics, politics, and geography of the district.
Conservative opponents of school desegregation have made few attempts to reduce the remedies available under a desegregation order. Limiting them would mean attacking some of the most precious and deeply embedded ideas in American law, including the ability of the judiciary to resolve constitutional breaches, and even Brown v. Board’s sacred principles. In fact, the Supreme Court has instituted only two major, strict limitations to court-ordered desegregation: A district cannot adopt hard racial quotas or ratios, and a federal court cannot include a neighboring district in a desegregation plan unless that district participated in the segregation.