The New Hanover County Board of Education has proposed a plan to redistrict elementary, middle, and high school districts for the 2020-21 school year. The plan utilizes a variety of factors, one of which is the racial make-up of neighborhoods in New Hanover County. This would be a new method of desegregation in modern society, one of which has never been tested under the United States Constitution and the jurisprudence of the United States Supreme Court.
The proposed plan will likely be constitutional under the Supreme Court of the United State’s Equal Protection Jurisprudence of the Fourteenth Amendment.
K-12 Segregation in New Hanover County Public Schools
New Hanover County, just like many other areas in the United States, was heavily influenced by racially prejudicial ideologies that have had a heavy influence in the County and its people throughout history, which included both the segregation and desegregation of K-12 public schools.
When North Carolina seceded from the Union during the Civil War, nearly half of Wilmington’s residents were never consulted. The federal census of 1860 showed that out of a population of 9,552 people living in the city, 3,777 of those were enslaved African-Americans, and another 573 were listed as “free persons of color.” Just like many enslaved and freed African-Americans across the southern states, African-Americans were not allowed to read, write, or participate in any such activity that resembled education. However, this would all change after the Civil War.
After the Civil War, Wilmington had become a symbol of “black hope” for southern African-Americans. As a direct result of Wilmington’s busy port, the black-majority city was North Carolina’s largest municipality. Blacks held numerous well-paying jobs and even a few local government political positions. In addition, the black male literacy rate was higher than that of whites. This prominently black municipality would continue to flourish for black entrepreneurs and black leadership until the autumn of 1898.
On November 10, 1898, the only successful coup d’état in the history of the United States occurred in Wilmington, North Carolina—the heart of New Hanover County. A former officer of the Confederacy and United States congressman, Alfred Waddell, also known as “the silver-tongued orator of the east,” led the attack with the Democratic Party’s paramilitary group known as the “red shirts.” By the end of the day, a black-owned newspaper was burned to the ground, over one hundred black men and women were murdered, and over 1,400 black men and women left the municipality both by force and voluntarily. Additionally, the local government that was elected two days prior, which included duly-elected black politicians, had been overthrown and replaced by white supremacists—with Alfred Waddell as the newly installed mayor. The event would be known as the “Wilmington Insurrection of 1898.” After the insurrection, racial oppression, discrimination, and segregation continued in all aspects of social life, especially in education.
Following the Supreme Court rulings in Brown v. Board of Education and Green v. Cty. Sch. Bd., African-Americans still located in New Hanover County had hope. In 1968, following the Supreme Court’s guidance, the Federal District Court of the Eastern District of North Carolina decreed that the New Hanover County public school system was an unconstitutional, racially dual system and directed that it be converted to a unitary system at “the earliest practical date.”
After the 1968 ruling, the New Hanover County Board of Education proposed several plans to redistrict the public schools within the County in the subsequent years; however, while the court had approved interim plans, the necessary result of a unitary system was not accomplished. At the beginning of the 1970-71 school year, the school system had 19,537 pupils in thirty schools—approximately 27% of the pupils were black and 73% were white. Two of the schools were all white, and an additional ten were over 90% white. Three schools were over 90% black.
Since the New Hanover County Board of Education failed to adopt an effective plan to desegregate the public schools, the District Court designated the United States Office of Education as a consultant to develop a plan to desegregate the schools. Reiterating Green, the District Court ordered that the plan convert the school system to a unitary system in which “racial discrimination would be eliminated root and branch.” The United States Office of Education decided to use the plan implemented in Swann as a model to desegregate the New Hanover County school system through county busing. The District Court relied on the Supreme Court’s holding in Swann, which approved the transportation of students to correct de jureracial school segregation. That proposed plan in New Hanover County required that students—both black and white—would be bused throughout the county to ensure specific racial ratios in each school. The District Court believed the use of ratios was the best way to desegregate stating, “[t]he ratio of the races in each school will more nearly reflect the ratio in the school system as a whole. Under this plan all of the schools and their students will share equitably in the burdens and the benefits of desegregation.” The District Court ordered that the plan be implemented with the commencement of the 1971-72 school year.Almost immediately, the plan was a success as a direct result of extensive busing, and redistributing students and faculty according to racial quotas throughout the county. After implementation of the plan, the public schools’ black populations ranged from 2.3%-40.9% with the 2.3% being the outlier.
The New Hanover County Board of Education continued to be under the District Court’s supervision until 1983 when it was declared a unitary school system.
The New Hanover County K-12 System Today
Since Eaton v. New Hanover County Board of Education, the school district has changed dramatically to a more racially isolated school district. Within the last two decades, the New Hanover County Board of Education has implemented redistricting plans focused on neighborhood schools, which has resulted in de facto school segregation, racial isolation, and academic disparities within minority groups; however, the Board seeks to implement a new redistricting plan that promotes diversity within the county’s public schools.
As of 2010, New Hanover County has a population of 202,667. Of that population, approximately 79.1% are white, 14.8% are black, and 5.3% are Latino based on the 2010 United States Census. The New Hanover County School System serves a student population of 26,087 that is 61% white, 20% black, and 12% Latino.
Between 2006 and 2010, the New Hanover County Board of Education adopted a student assignment model that emphasized proximity of schools and the schools’ students, which have created so called, “neighborhood schools.” That student assignment model has lead to significant demographic disparities. Today, twenty-eight of the forty-two New Hanover County schools are racially imbalanced. Additionally, the district’s four magnet schools (Gregory Elementary, Freeman Elementary, Snipes Elementary, and D.C. Virgo Preparatory Academy) have become racially isolated and hyper-segregated with black students accounting for 77.9-86% of the total student population. A school is defined as “racially imbalanced” any time one or more of its racial groups falls more than fifteen percentage points away from the school district’s overall student racial demographic. A school is defined as “hyper-segregated” if a racial minority in the district constitutes eighty percentage points or more of the school population.
The student reassignment plan of 2010 has also directly correlated with significant academic disparities within the New Hanover County Public School System. Three elementary schools—Bradley Creek Elementary, Parsley Elementary, and Holly Tree Elementary—have become increasingly crowded and are decreasing in minority populations. Students at those schools passed their end-of-grade exams at rates of 62.7%, 87.1%, and 83.7% respectively. However, at Freeman Elementary and Snipes Elementary, both of which are about a quarter under capacity with increasing minority populations, 25.6% and 32.2% of the students passed respectively. Additionally, D.C. Virgo Elementary was 65% under capacity and only 27.6% of students passed their end-of-grade exams.
The New Hanover County Board of Education has recently been working toward implementing a new school redistricting policy, are which takes the racial make-up of neighborhoods into account in order to attempt to desegregate the current de facto segregation in the school district. The New Hanover County School Board contracted Copper GIS to facilitate the study and develop the plan for redistricting. Copper GIS is an independent company with experience in assisting numerous school districts within several states developing redistricting plans. In its study and in developing the school-redistricting plan for New Hanover County, Copper GIS used the following factors:
- Balance school facility utilization by making every effort to have equitable utilization across the district and in accordance with school capacities and funded allotment ratios in accordance with state law, and make efficient use of available space;
- Account for future growth;
- Establish clear feeder patterns and continuity by making every effort to establish a clear feeder pattern system and making every effort to divide a large enough population so students can continue to the next level with familiar faces;
- Minimize the impact [of redistricting] on students;
- Consider economic, cultural, and ethnic diversity; and
- Close proximity [of the school and its students geographically.]
However, the school district’s leaders and the New Hanover County Board of Education have called diversity as a priority in schools.
On November 19, 2019 Copper GIS and contributing School Board members finalized their recommendation for school redistricting maps. On December 3, 2019 those same members made their final recommendation to the New Hanover County Board of Education, which passed the Board’s vote. The plan will be implemented in the 2020-21 school year. However, nearly 3,500 students will be forced to relocate to a different public school, which has raised concerns among students and their parents. As a result, a lawsuit may be on the horizon, which would challenge the plan, specifically on the plan’s consideration of the racial make-up of neighborhoods.
The New Hanover Board of Education’s new plan uses a methodology proposed by former Justice Kennedy of the Supreme Court of the United States. In his concurring opinion in Parents Involved in Community Schools, Justice Kennedy suggested alternative mechanisms future school districts may wish to implement to increase diversity in schools with de facto segregation. Justice Kennedy opined,
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined race, so it is unlikely any of them would demand strict scrutiny to be found permissible. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite different matter; and the legal analysis changes accordingly.
Since many of the alternative mechanisms for school redistricting Justice Kennedy mentions would be issues of first impression for the Court, Justice Kennedy relies on cases regarding election-redistricting plans that were race conscious. See Bush v. Vera, 517 U.S. 952, 958 (1996) (holding strict scrutiny does not apply merely because redistricting is performed with consciousness of race . . . . Electoral district lines are facially race neutral, so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of classifications based explicitly on race); Miller v. Johnson, 515 U.S. 900, 916 (1995) (holding for strict scrutiny to apply, the plaintiffs must prove that other, legitimate districting principles were subordinated to race); Shaw v. Reno, 509 U.S. 630, 646 (1993) (holding that strict scrutiny does not apply merely because redistricting is performed with consciousness of race).
According to Justice Kennedy, if this issue is brought before a District Court, the Court should use a Rational Basis Test to determine its constitutionality. Under a Rational Basis Test, the Court should rule that the plan is constitutional because while the plan is race-conscious of the demographics of neighborhoods, it does not lead to different treatment of students based on a student’s individual race. As a result, the plan is rationally related to a legitimate government interestof diversity in K-12 schools and eliminating de facto segregation.
This is an issue of first impression and this could be a topic the Supreme Court of the United States might be interested in hearing after their recent affirmative action case involving Harvard’s recent policies. All eyes will be fixed on New Hanover County in the coming months to determine if other school districts could address de facto segregation in the future using this methodology.