Judge William Pryor is likely not accustomed to being praised by civil-rights advocates. The judge is not a liberal lion. A Bush appointee currently sitting on the 11th Circuit Court of Appeals, which serves much of the deep South, Judge Pryor’s writings have been critical of gay rights and abortion protections. His conservative bona fides have, reputedly, helped earn him a spot on President Trump’s shortlist for Supreme Court nominations.

But earlier this month, as part of a twisting, turning school-desegregation saga in Alabama’s Jefferson County, Judge Pryor struck a strange blow on behalf of integrated schools. In an appellate decision, he forbade a heavily white city from breaking away from a diverse district and running its own separate school system.

What made this moment even stranger was that Pryor’s decision overturned the ruling of an Obama-appointed judge who had demonstrated great concern over school segregation. Unexpectedly, that judge had found herself at odds with many of the nation’s most vocal advocates of integrated education.

While civil-rights advocates celebrated Pryor’s move, the news out of Jefferson County isn’t all good. The recent decision raises important questions about the long-term fate of school desegregation—in Jefferson County, but everywhere else, too. America’s strongest legal tools for integration are aging into their sixth decade. At its core, the Jefferson County case is about whether they’ll survive any longer.

The litigation in Jefferson County has lasted longer than most of the county’s residents have been alive. First filed by black plaintiffs in 1965, the case sought to desegregate the countywide school district, which serves suburban Birmingham and is today the state’s second-largest K-12 system. The court ordered the district to integrate, and has been supervising that process ever since.

The court’s order has not always been rigidly observed. Over time, Jefferson County’s whiter areas have splintered off and formed their own districts, a process that has accelerated since 2000. As a result, the racial demographics of the remainder of the county district have shifted dramatically—from approximately 75 percent white in 2000 to around 40 percent white today. The result has been that heavily black or single-race schools in the district—once the defining feature of Jim Crow-era segregation—have again become commonplace.

The most recent attempted defection was initiated by the residents of the small suburb of Gardendale. Its population of about 14,000 is 83 percent white. Because it is much whiter than the county district overall, Gardendale’s departure would increase the degree of racial concentration in the Jefferson County schools.

But something had changed. Judge Madeline Haikala, appointed by President Obama in 2013, was now presiding over the Jefferson County desegregation case. And Haikala has been, by all accounts, uncommonly sensitive to the problem of segregated schools. In writings from the bench, she has engaged with Alabama’s long history of segregation honestly and directly.

So when Gardendale sought permission to split from the Jefferson County district, it found itself embroiled in a legal showdown with integration advocates who opposed secession, overseen by an unsympathetic judge.

The advocates’ argument was straightforward: A longstanding rule created by the Supreme Court in 1972 holds that schools under a desegregation order cannot split away and form a splinter district if doing so would undermine the process of desegregation. The advocates also contended that Gardendale’s proposed secession was not innocent or well-intentioned—it was motivated by racial animus.

Judge Haikala agreed with the desegregation advocates on both counts. In a 190-page opinion summarizing the history of civil rights in Jefferson County schools, she called elements of the secession campaign “deplorable.” She agreed that it was motivated by a desire to discriminate. And then, to the advocates’ dismay, she approved a plan to allow Gardendale’s secession to go forward anyway.

To understand why Judge Haikala did what she did, it’s necessary to understand the basic structure of school-desegregation law in the United States. Brown v. Board of Education, with its affirmation in 1954 that “separate educational facilities are inherently unequal,” is easily the most famous desegregation case. But much of the hard work of actually integrating schools came later, starting in earnest with a 1968 Supreme Court case called Green v. County School Board of New Kent County, which laid out specific standards for that process. Out of Green and the many cases that followed it, the Supreme Court built a complex and versatile set of rules for desegregating schools. There is nothing else quite like it in American jurisprudence: an elaborate body of Supreme Court precedent, all focused on accomplishing one narrow task.

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.

But this broad authority has an expiration date. When violations are sufficiently remedied and a desegregation order is lifted, court oversight vanishes. And if schools slowly resegregate, the order stays gone, unless new plaintiffs can once again prove that schools are being intentionally segregated.

The upshot of all of this is that, when it comes to school segregation, liberals and conservatives have often spent more time fighting over the duration of desegregation orders than over their content. Progressive civil-rights advocates typically want orders to last longer; conservatives typically want them to terminate as soon as possible. Over time, the Supreme Court has tilted more conservative, and thus helped speed the process of ending desegregation orders. Its more recent decisions say that district courts are required to end orders as soon as a segregated district has shown a “good faith effort” to desegregate “to the extent practicable.” In other words, the Court has told judges to return full local control to districts as soon as possible, and to be wary of desegregation cases that seem to persist indefinitely.

In the 1970s, school-desegregation orders blanketed the nation. Judges supervised integration in hundreds, if not thousands, of districts.  No one is sure exactly how many of those orders remain today. Some orders have been closed, while others have been effectively forgotten. In a number of instances, the critical records have been lost.

Old age haunts many of the orders that survive. This, it seems, was the critical problem in Jefferson County’s Gardendale dispute. Judge Haikala, explaining her reasoning in that case, said that “the desegregation order [in Jefferson County] is 45 years old, and federal oversight … may be nearing its end.” The looming conclusion of the order had created a confounding dilemma for the judge.

If she barred Gardendale from seceding, the Jefferson County district would be more integrated for the time being. But there would be a catch. Haikala noted that the the countywide district was not responsible for the Gardendale situation, and had “complied in good faith” with the integration plan for many years. Given the Supreme Court’s dictates, she might be soon obligated to release the county district from judicial supervision.

If that happened, Gardendale could immediately turn around and secede again, and this time, there would be no judge or court order to block it. Stopping Gardendale the first time would be, in the judge’s words, a “short-lived victory.” Judge Haikala did not shy away from this concern, and said explicitly that it “weighed heavily in [her] decision.”  

The judge devised a novel solution to this problem. Haikala would allow Gardendale to secede, but then do something extraordinarily rare for 2018: place the newly minted district under “a brand new desegregation order.” After all, its very creation, she had just found, had been motivated by a desire to self-segregate. Without decades of history behind it, that new order could remain in effect for “the indefinite future.”

Now, because of the most recent developments, Haikala’s strategy has come undone. On February 13th, Judge Pryor and the 11th Circuit Court of Appeals overturned her decision. Pryor, writing for an appellate panel, held that Haikala’s district court had “no basis to speculate” about the possibility that Jefferson County might attempt to end its desegregation order. Nor, Pryor said, could a new desegregation order be imposed in anticipation of upcoming events—and especially not to “guard against the possibility” that the segregation leading to Jefferson County’s original order “will either soon be remedied or no longer exist.” Because Gardendale’s secession would impair the county’s desegregation order, it was forbidden, full stop.

But other language in Pryor’s opinion hints at the very future that so concerned Haikala. Pryor encourages “a plan for the final resolution” of the Jefferson County case “later this year,” noting its half-century duration. The opinion ends with a statement of the importance of local control, and a reassurance that Gardendale need not remain “forever a vassal.”  

Commentary in the civil-rights community has generally sided against Haikala, preferring Pryor’s  vision of immediate justice. The NAACP Legal Defense Fund, perhaps the nation’s strongest institutional opponent of school segregation, argued that blocking Gardendale’s departure “was the only logical conclusion following a district court’s direct acknowledgment that racial discrimination was a motivating factor” behind the secession plan.

Yet civil-rights advocates cannot deny that Haikala’s fears are well-founded. The surviving desegregation orders from the 1960s and ‘70s are still powerful tools for school integration, but nothing lasts forever. Pryor’s own opinion, with its talk of restoring local control, echoes the Supreme Court’s pressure on districts to end decades-old desegregation cases. Meanwhile, schools across America are resegregating, and segregation’s harms have grown no less malignant with age. Advocates struggling to keep aging desegregation orders alive won’t be able to keep playing defense indefinitely. They need a plan for when those old orders expire.

These advocates might find wisdom in Judge Haikala’s strategy for Gardendale: “a brand new desegregation order.” Many of the powerful federal judicial tools that can remedy school segregation are only available in a very specific circumstance: when a judge issues a finding that a school district is intentionally segregated, leading to a court order. When that order is terminated, the tools are relinquished.

But the tools still exist—they’re just padlocked away until a court makes a renewed finding of intentional segregation. Brand new desegregation orders break that lock, making powerful federal legal remedies available to plaintiffs once again. With school segregation on the march, and integration opponents emboldened by decades of lax enforcement of civil-rights rules, dedicated advocacy may spur other courts to follow Haikala’s lead and issue new orders. The federal courts have been critical to American school integration since the very beginning. Their role may not be over yet.

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