Busing and curriculum: Caselaw

Busing policies and the associated case law have shaped our understanding of the role race may play in assigning or admitting students to schools. The legal framework that emerged from busing litigation is particularly salient for curriculum studies as it relates to race-based admission protocols for schools with specialized academic emphasis. Where de jure segregation remains in a school system the courts have offered wide latitude for school boards to maintain forced busing programs, among other measures, to reverse the course of historical discrimination. However, absent de jure segregation, the courts have limited the schools' ability to establish admission and assignment policies based on race.

The first forced busing programs were designed to enforce desegregation policies in compliance with Brown v. Board of Education (1954) and Brown II (1955). In the wake of the Brown decisions a body of case law emerged at the district and appellate levels that distinguished between de jure and de facto segregation. The lower court interpretations held that schools experiencing de facto segregation were not required to overcome the lack of racial balance that was an inherent consequence of segregated housing patterns. Schools with evidence of de jure segregation, however, were compelled to enact policies (e.g., busing) to eliminate the vestiges of past discrimination.

In 1968, the U.S. Supreme Court reviewed a student assignment plan that allowed free choice between two schools in the New Kent County (Virginia) School District. New Kent was a racially mixed community with a history of de jure school segregation. The school system supported busing across the district for students choosing to transfer between the traditionally all-White New Kent School and all-Black Watkins School. The High Court ruled that the plan was ineffectual in facilitating a transition to a unitary system in that not one White student had elected to transfer to the all-Black school in the 3-year history of the program. The court opined that the district board had simply transferred the burden of integration from the school board (as was required by Brown II) to the parents of children in the district. In addition to finding that choice busing programs were unconstitutional if they failed to result in an integrated school system, the court proposed a set of six factors to consider when determining whether a school had reached unitary status. The six factors are student assignment, faculty, staff, transportation, extracurricular activities, and facilities.

The Swann v. Mecklenburg case of 1971 was the most significant early case addressing forced busing programs. The court considered a North Carolina statute that was known as the Anti-Busing Law N.C. Gen. Stat. § 115176.1 (Supp. 1969) read, “No student shall be assigned or compelled to attend any school on account of race, creed, color or national origin, or for the purpose of creating a balance or ratio of race, religion or national origins. Involuntary busing of students in contravention of this article is prohibited, and public funds shall not be used for any such busing.” The court ruled that the Anti-Busing Law significantly hampered the district's ability to remedy the segregation problem. If race must be considered when evaluating whether a school system is in violation of desegregation mandates, then the court offered that race would in all likelihood be a necessary consideration when crafting a remedy. As for the use of busing to desegregate schools, the opinion in Swann stated that “bus transportation has long been an integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without continued reliance upon it.” Three years after Swann in Milliken v. Bradley (1974), the Supreme Court refined its position on racial balance policies by ruling that a federal court could not require a multi district busing remedy to address a single district's de jure segregation.

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