Author: johnniefitzpatrick

Author: Matthew Doktor 

There is a not-so-subtle irony involved in teaching the 1954 U.S. Supreme Court decision Brown v. Board of Education of Topeka. When I had the privilege of teaching modern American history, the days preceding Brown examined the oppression of Jim Crow. The class would read the Brown that famously concluded “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Then would I ask the students to look around and reflect. The inherent inequality that Chief Justice Warren spoke of in Brown was on display in the racial and ethnic makeup of my students. But that was not separate but equal. Inequity in the facilities and administrative practices compounded the racial segregation. Derrick Bell, a lawyer who personally worked to desegregate schools in the deep South concluded in a 1993 article, “the Brown decision, while never overturned, has become irrelevant.” Looking around the classroom, the permanence of racism and segregation in this country could not be clearer. According to Bell, there is good reason to celebrate Brown, but the continued racial segregation in schools combined with inferior resources in predominant Black and Latinx schools tell the real story.  

Despite the judicial and legislative initiatives to combat discrimination, non-compliance is more the rule to the exception. In place of lawful discrimination arose a racially tiered society with underpinnings of poverty. As Bell noted, while the lawful racial barriers of America’s slave society and later Jim Crow were replaced with more subtle forms of discrimination, America was hardly less discriminatory.  

Yes, Chief Justice Warren was correct in his assessment of education in Brown, calling it “the most important function of state and local governments.” That fundamental role of education accentuates the tragedy of American racial segregation. And that racial inequality is compounded by economic inequality, as poor students of color are concentrated in schools and neighborhoods.

I. Poverty & Race 

         Poverty is an amorphous concept. For most Americans and most Cincinnatians, we are only confronted with the realities of poverty when we see the vestiges of life on the streets or are asked to help ease the financial burden of our neighbors. While poverty is typically defined by income, leading scholars consider it a more dynamic experience that includes issues related to social and cultural exclusion.   

Throughout America’s history, race privilege has consistently translated into class privilege. According to current census data, people of color disproportionately experience poverty compared to their white counterparts.  In terms of real dollars, the median net worth of a white household in 2016 was $143,000 compared to the $12,920 for Black households, $21,420 for Latinx households, and $5,700 for indigenous households. Across the United States and particularly in the Rust Belt, individuals experiencing poverty have been concentrated into economically declining neighborhoods. As the white residents who fled to the suburbs are now fleeing those suburbs, suburban neighborhoods are increasingly becoming areas of poverty concentration.  

As Ta-Nehisi Coates observed in The Case For Reparations, systemic plunder of the Black community continued well into the 20th Century. Private and public sectors working in tandem destroyed the possibility of investment in Black neighborhoods and plundered Black residents. Coates pointed to the Chicago suburb of North Lawndale as a case study of white-imposed Black disadvantage where developers price-gouged housing  and sold homes on contract to Black buyers. Contract sales of homes, unlike traditional mortgages, limited the equity accrued in the home and risked complete forfeiture of the home and dollar paid with one missed payment. That system of plunder generated profit for white contract sellers, plundered Black home buyers, and destroyed neighborhoods.   

People of color are disproportionately more likely to live in economically declining areas, with 35 percent of all Black residents living in declining economic areas. These shifts correspond to gentrification in major metropolitan cities that cause displacement of existing residents. In the 50 largest U.S. cities, approximately 464,000 low-income residents have left gentrified neighborhoods. That gentrification is disproportionately white, with only 9 percent of Black residents living in gentrified areas.    

Families of color not only face segregated neighborhoods and schools, but segregated financial, health, and food systems. In the U.S., Black individuals are at higher risk for diabetes, hypertension, and heart disease. That is due in part to food insecurity and barriers in communities of color across the U.S. In 2013, a U.N. report acknowledged the role of systemic and structural barriers that limit communities of color from better socio-economic communities.  

Those barriers, built on white supremacy, deny essential services like fresh and healthy food to segregated and isolated communities. Black children have a 500 percent higher death rate from asthma compared to white children. And disproportionately lower quality healthcare for Black patients due to implicit biases and structural barriers that limit access to healthcare creates a two-tiered healthcare system. This is all compounded by racism-induced stress that increases mortality rates in Black infants and Black mothers. Individuals living in segregated neighborhoods of color are more likely to be isolated from good jobs or the transportation necessary to reach those jobs.  

 According to a recent Census Bureau Report, despite a slow decline in overall poverty, the elderly increasingly experience poverty. While the number of white Americans experiencing poverty has decreased, the poverty rates for Asian, Black, and Latinx Americans have not moved. One out of every five Black Americans, or 8.9 million people, are currently experiencing poverty. Two out of every five children living with single mothers experience poverty in America. Research by HUD shows that poor neighborhoods are isolated from money, goods, jobs, and resources. Individuals who experience that isolated poverty in turn face problems related to crime, education, and health.  

Research by the New York Academy of Sciences reveals that children who experience poverty risk long-lasting consequences related to cognitive development and academic performance. Interventions beyond simple economic aid help offset those effects, like science-driven intervention programs that provide enrichment to children and their families. 

As a whole, media portrayals of the realities of poverty are limited to “bootstrap human interest stor[ies]” that ultimately amount to shaming the poor and equating success into a moral indicator. And when class and race intersect, individual Black ascent into higher tiers of socioeconomic status are cited to dismiss claims of racism and racial injustice.   

Not only are poor people of color disparaged with success stories, poor people of color experience poverty that is different in kind. Poor people of color are more likely to live in neighborhoods of concentrated poverty. In Chicago, poor people of color are ten times more likely than poor whites to live in high-poverty census tracts (neighborhoods with a 40 percent  poverty rate).  

Even worse, systemic inequalities at the intersection of race and poverty are often deployed to pathologize people of color. After the passing of the Civil Rights Act 1964, then advisor to President Nixon Daniel Moynihan authored a report on the Black family commonly known as the Moynihan Report. Its assessment of the Black community as a burdened community rested on an indictment of Black women. According to Moynihan, the matriarchal structure of the Black family disadvantaged poor Black males in education.  

Moynihan and his modern counterparts ignore what are the innate and inherent state and institutional barriers that exacerbate the effects of poverty among people of color. Problematically, the law fails to see intrinsic barriers. In 1896, Justice Harlan dissented to the maligned Plessy v. Ferguson, but declared the Constitution to be race-neutral, declaring the Constitution “color-blind, and neither knows nor tolerates classes among citizens.” According to Harlan, the Court “takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

II. Poverty in Cincinnati 

           In the aftermath of significant inner-city unrest in major cities across the United States, then President Lyndon B. Johnson formed the National Advisory Commission on Civil Disorders to examine the violence. As one of the Kerner Commission’s “profiles of disorder“, Cincinnati’s history of racial inequality was evidence of the need for civil rights legislation like the Fair Housing Act. The commission singled out Cincinnati’s high rate of poverty, limited access to housing, and limited access to jobs in the Black community in the 1960s. Things have not changed. 

         According to most indicators, Cincinnati is on the wrong end of racial and income equality. Despite the promise of housing legislation, integration is a myth and historically poor communities still have less opportunity. Cincinnati remains one of the most segregated cities in the country. Across the city, streets like Section Avenue, McMicken Avenue, and Vine Street define stark racial dividing lines.  Cincinnati is one of the five poorest cities with at least 250,000 residents with nearly 28 percent experiencing poverty. Despite the general recovery from the 2008 Recession, more people in Cincinnati and across the country feel the effects of poverty now than they did in 2007. 

III. School Segregation 

While the U.S. Supreme Court in Brown v. Board of Education struck down segregation in America’s public schools, the question remained: how to fix the problem. In Green v. County School Board of New Kent, the Supreme Court explained that a school board opening the doors to students of color begins, not ends, the abolition of segregation. Instead, the Court charged school boards with a duty to implement changes to eliminate racial discrimination “root and branch.”  

Then, in 1974 the Supreme Court retreated from that notion of broad restructuring with its decision in Milliken v. Bradley. In Milliken, Detroit parents and the NAACP challenged segregation within the Detroit Public School System. The Supreme Court rejected a broad multi-district remedy to segregate Detroit schools; instead it required proof that “racially discriminatory acts of the state or local school districts” substantially caused inter-district segregation. The Court distinguished between de jure segregation, segregation caused by intentional acts of the state, and de facto segregation, segregation caused by forces other than the state. The Court ultimately limited the ability of any federal court to create an area-wide school redistricting plan that would include surrounding neighborhoods in any restructuring. The Court also embraced colorblindness and indifference towards the history of racial discrimination in America and the public and private policies causing segregated neighborhoods.  

But colorblindness turns a blind eye to systemic racism and historic oppression. Both legal conservatives and liberals embrace colorblindness. For white liberals, colorblindness is a convenient default mode of perspective “without any apparent perceived need for justification.”   

Instead, Barbara Flagg argues against the Court’s colorblind Equal Protection doctrine. According to Flagg, Equal Protection disparate impact jurisprudence fails due to the requisite finding of racially discriminatory intent in “facially neutral” decisions. Instead, she argues that neutral imposition of white norms is active maintenance and participation in white supremacy. Equal Protection jurisprudence falls short when it ignores facially white neutral decision-making and unconscious discrimination, and then permeates historic racial oppression.  

As recently as 2007, the U.S. Supreme Court struck down Seattle and Louisville’s integration program designed to create district-wide racial proportionality in Community Schools v. Seattle School District No. 1. According to the Court, the 14th Amendment’s guarantee of equal protection requires governments to treat citizens as individuals rather than members of a race, religion, or gender. The Court embraced a race-neutral analysis, that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In the Court’s eyes, racial proportionality would ensure race would always be relevant in American life and ultimately derail the goal of eliminating race from government decision-making.  

IV. Ohio School Segregation

In 1842, a white school teacher challenged integration in Ohio classrooms in Chalmers v. Stewart. According to the Supreme Court of Ohio, in Chalmers, white children only had the privilege of common schools.  After the Civil War, Black parents challenged Ohio’s segregated schools after the ratification of the 14th Amendment based on the Equal Protection Clause – that no state shall “deny any person within its jurisdiction the equal protection of laws”, and the Privileges or Immunities Clause — that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” Yet, in cases like State ex rel. Garnes v. McCann, the Supreme Court of Ohio ruled that segregated schools and the laws that govern them “do[] not deprive” Black children of their rights. According to legal scholar Davidson Douglass, enforcing Ohio’s anti-segregation legislation was complicated by legitimate fears of the Black community surrounding integration. Those same fears resurfaced after the U.S. Supreme Court’s opinion in Brown, when Black parents feared sending their children to white areas where their children would be in physical danger. 

After Brown, Cincinnati schools faced its own federal school segregation challenges. In 1963, Black parents brought a class action lawsuit against the Cincinnati Board of Education in Deal v. Cincinnati Board of Education that challenged racial imbalances in the schools. Specifically, the parents challenged the Board of Education’s refusal to accept the concept of de facto segregation and refusal to bus students to attempt to create a racial balance in the schools.  Because the court did not find a discriminatory intent in the design of the school, the court declared that the parents “failed to establish a deprivation of rights under the law or under the Constitution of the United States.”  

Then, in 1975 Black parents again challenged the Cincinnati school system in Bronson v. Board of Education. After ten years of litigation, the Board of Education agreed to a settlement with the parents that gave the Board of Education flexibility in the methods for desegregating. According to the settlement, $35 million would be spent on development and expansion of alternative schools and remedial programs. The agreement produced a 1991 deadline to reduce district-wide segregation.   

Today, most children in Cincinnati attend segregated schools. Schools are not only segregated by race, but by income as well. The result is a system of separate and unequal schools.  

Cincinnati’s public high schools are predominantly attended by students of color. What’s more, all but two schools are concentrations of poverty. In eleven of the thirteen public high schools listed above, over 95 percent of the student population experience poverty.  The public high schools without concentrations of poverty are more integrated. In contrast, Cincinnati’s private high schools are predominantly white. In four of Cincinnati’s private high schools, over 90 percent of the student population is white. The immediate question is: why? While some private schools provide scholarships to their students, none of the schools surveyed claimed to provide a full scholarship covering the entire tuition. Moreover, most of Cincinnati’s private schools were founded in the Jim Crow era. Referral systems and admissions criteria that include legacy status perpetuate racial disparities in Cincinnati’s private schools. 

The problem is not just enrollment demographics. The unconscious discrimination and history of racial oppression permeates American education. As Gloria-Ladsen Billings and William Tate argue in Toward a Critical Race Theory of Education, America developed an education system that exists without authentic voices of people of color, that confers whiteness as a positive behavior trait, that provides inadequate facilities and curricula, and ultimately one that segregates students both inside and outside of the school through student tracking and “gifted” programs.  

In 2018, the Legal Defense Fund released a report titled Our Girls, Our Future,on the disproportionate punishment that  students of color across the country face. It explained the degree to which Black girls face exclusionary and punitive measures that push Black girls out of school for dress code violations and subjective offenses like “disruption”, “defiance”, and “speaking out”. Black students were the only students arrested in Baltimore City school. Black girls were five times more likely to be referred to Maryland’s juvenile justice agency and faced longer periods of detainment. This disparate treatment of Black girls in schools is also the focus of Dr. Monique Morris’s book, Pushout, which describes the cultural disconnect between Black girls and educators that creates a hostile environment at school, rather than a nurturing space for growth.  

The disparate treatment of Black students is not unique to Baltimore schools. According to the U.S. Department of Education’s Office of Civil Rights, in 2015, Black students were disproportionately suspended and were the only students expelled in Cincinnati public schools.  

Source: United States Department of Education Office of Civil Rights, Cincinnati District Discipline Report, 2015 (https://ocrdata.ed.gov/Page?t=d&eid=27210&syk=8&pid=2539)  

Despite the pronouncements of Brown v. Board of Education and later school desegregation cases, Cincinnati remains at the mercy of its old foe, segregation. Throughout the city, color lines etched into neighborhood borders restrict access for people of color. City structures grown out of an era of racial subordination perpetuate white supremacy through colorblind policy measures or pernicious administration. Despite the recent U.S. Supreme Court pronouncements, the way to stop discriminating on the basis of race is to first acknowledge discrimination on the basis of race. Then, we can talk.  

Matthew Doktor is a 2L at the University of Cincinnati College of Law. He is currently a fellow at the Ohio Innocence Project and an associate member of UC’s Law Review. Matthew’s previous work includes education and research.