38. The Retreat from Desegregation

What happens when the courts stop trying?

Brown v. Board of Education promised transformation. No more “separate but equal.” No more school doors closed because of skin color. For a while, courts helped make that promise real, with busing plans, redrawn district lines, and strong oversight. But starting in the 1970s, the Supreme Court began to shift course. Desegregation, it said, had to have limits. Bit by bit, the bold tools of integration were packed away. And the gap between law and lived reality began to widen again.

The Detroit Decision: Milliken v. Bradley (1974)

In Detroit, schools inside the city were overwhelmingly Black. Just a few miles away, in the suburbs, most students were white. The divide wasn’t accidental—it was the result of years of housing discrimination, white flight, and school zoning lines drawn to reinforce separation. A lower court tried to fix this by ordering busing between the city and suburbs. But in Milliken v. Bradley, the Supreme Court said no.

Chief Justice Warren Burger wrote the opinion. Courts, he said, could only step in if a school district had deliberately segregated students. Since the suburban districts hadn’t officially done anything wrong, they couldn’t be forced to help fix Detroit’s segregation problem, even if that segregation was the predictable result of broader systems. In one ruling, the Court sharply limited what remedies were allowed: unless there was proof that suburban districts had actively contributed to segregation, courts could not require them to participate in desegregation plans.

As legal theorists like Reva Siegel and Kimberlé Crenshaw have argued, this kind of boundary-policing is more than a question of jurisdiction. It’s a narrowing of what courts even allow themselves to see. By pretending structural segregation was merely accidental, Milliken turned de facto segregation into a problem no one had the power to solve.

The result? White suburban schools remained untouched by desegregation orders, while Black students in cities like Detroit were told that geography, not justice, controlled their fate.

The Kansas City Case: Missouri v. Jenkins (1990 and 1995)

After Milliken, the fight shifted. If courts couldn’t reach across district lines, could they at least require meaningful changes within them?

In Kansas City, the answer seemed like yes—at first. A federal court ordered the state to improve teacher salaries, renovate buildings, and build new magnet schools. The goal was to make inner-city schools so good that white families would choose to come back. For a while, Kansas City’s schools were among the best-funded in the country. But the integration never came. The court orders dragged on. And eventually, the Supreme Court stepped in again.

In Missouri v. Jenkins (1990), the Court ruled that federal courts couldn’t force a state to raise taxes to pay for desegregation. And in Jenkins again (1995), the Court said that once a state stopped actively discriminating, the courts had to back off. The goal, Chief Justice Rehnquist wrote, was not perfect racial balance, but compliance with the law.

This shift transformed civil rights litigation from a bold tool of social change into a cautious, bureaucratic process. The courts began to treat desegregation not as a commitment to racial justice, but as a managerial problem to be resolved with minimal intervention.

These decisions reflected a deeper shift: the Court was no longer trying to create integrated schools. It was trying to manage its own exit. And once the state could show it had made a good faith effort, the Court was ready to walk away, even if the schools remained mostly segregated in practice.

When Is It Over? Board of Education of Oklahoma City v. Dowell (1991)

That question—when is desegregation “done”?—was at the center of Dowell. The Oklahoma City school district had been under a desegregation order since 1972. Years later, the district court said enough progress had been made. The order could end. But the appeals court disagreed, saying racial imbalance still remained. The case went all the way to the Supreme Court.

In a 5–3 decision, the Court sided with the school district. If a district had followed earlier orders in good faith, the Court said, then it could be released from supervision, even if resegregation followed. What mattered was intent, not outcome. Unless there was new evidence of purposeful discrimination, the courts had to let go.

For many districts, this ruling was the green light they’d been waiting for. Within a few years, dozens of desegregation orders were lifted. Court oversight ended. And slowly, steadily, many schools began to resegregate, driven not by law, but by housing patterns, zoning rules, and long-standing inequalities.

Resegregation became widespread once judicial oversight ended. Formally, school districts were labeled “unitary.” But practically, the conditions of racial isolation persisted—just without federal supervision.

A Shift in Focus: From Rights to Restraint

The arc of these cases (Milliken, Jenkins, Dowell) reveals more than a legal trend. It’s a story about how the Supreme Court changed its role in the struggle for racial equality.

In the 1950s and 60s, the Court saw itself as an engine of change. It used its power to push the nation toward justice. But by the 1980s and 90s, the tone had changed. The Court was wary of long-term oversight. It worried about separation of powers, local control, and the boundaries of judicial authority. It began to treat desegregation not as an ongoing obligation, but as a chapter to be closed.

And yet, the conditions that made Brown necessary—racial isolation, unequal resources, structural barriers—had not disappeared. They had just been reframed as accidents of geography or “private choice.” But history doesn’t vanish when the law looks away. Without meaningful remedies, past discrimination continues to shape present realities. The form changes. The effects endure.