Schools Without Borders: Ending the Containment

Jade A. Craig* June, 2026

The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North. By Michelle Adams. Macmillan Publishing. 2025. Pp. xx, 528. $35.

Introduction

In the fall of 2012, I arrived in Detroit to begin my clerkship with the late Judge Damon J. Keith on the U.S. Court of Appeals for the Sixth Circuit. I lived in one of the Lafayette Towers, part of the complex designed by internationally renowned architect Ludwig Mies van der Rohe.¹ The Towers, along with the townhouses I walked past to leave the neighborhood, were considered among the finest examples of modern residential architecture in the United States and were on the National Register of Historic Places.² I rode the People Mover, an elevated train that traversed downtown on a loop, past Greektown Casino,³ feeling very much like a modern yuppie as I watched the tall buildings go by.

But even in downtown Detroit, the city’s challenges loomed in the background. Judge Keith’s chambers had photographs spanning his adult life. One photo featured him with several Black schoolchildren outside a building with the sign “Damon J. Keith School.” I was floored to learn that the Detroit Public School System had named a public elementary school after him.⁴ I soon discovered, though, that the school (like many other public schools in the city) was closed due to the city’s severe population loss over the last forty years. Nonetheless, I wanted to see it for myself. But someone whispered that it was in a part of town that they did not recommend visiting.

I have long been drawn to the stories of schools, a passion that culminated in my decision to join Teach for America between college and law school. I taught kindergarten in my home state of Mississippi at Ella Darling Elementary School in Greenville, the largest city in the Mississippi Delta.⁵ Like most public schools in Mississippi, public schools in Greenville did not fully integrate until the early 1970s.⁶ Darling went from all white in the 1960s to all Black by the time I arrived in 2006.⁷ In my three years of teaching, I had about fifty students; only one was white.

In both Mississippi and Detroit, I lived amidst the fallout of the failures of school integration. Greenville represents white avoidance in a rural context, in which the white minority fled the public schools in the years following integration and began attending separate private schools,⁸ while Detroit’s public school system was decimated by white flight to the suburbs. The closure of schools like the elementary school named for Judge Keith is a symptom of a larger problem—one that hides in plain sight. The city’s abandoned school buildings⁹ are relics of a history that has not been fully told.

The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North by law professor Michelle Adams¹⁰ tells that story through the litigation and ultimate Supreme Court decision in Milliken v. Bradley.¹¹ Adams examines the history and legacy of racial segregation in Detroit’s public schools after 1954, when the U.S. Supreme Court ruled that legally imposed racial segregation in public schools was unconstitutional.¹² Brown v. Board of Education ended legally mandated segregation in Mississippi’s public schools—in my hometown of Hattiesburg and where I served as a teacher in Greenville—because those “municipal separate” school districts had classic, Southern-style, de jure segregation.¹³ The state of Michigan outlawed segregation in public schools in 1842 (p. 75), but Detroit’s schools were just as racially identifiable as those in Mississippi. They were racially segregated nonetheless.

With tremendous depth and precision, Adams details the history and backstory of the case that most lawyers and law students think they know—how it emerged, how it was litigated, and how it shaped the law of desegregation. One of the book’s lessons is the contextual nature of segregation. Not every school desegregation case has been decided the same way, in part because the nature of discrimination differs based on the region and the urban or rural context in which the case arose.

While Milliken is often considered a constitutional law case or a school desegregation case, Adams illuminates a deeper story about its relationship with fair housing law and municipal governance. Her account shows us that the history of school integration requires attention beyond examining the policies that separate public school students by race and class (like attendance zones and assignment policies). The challenge Detroit, like many metropolitan areas, faced was jurisdictional fragmentation: the ability to exclude people from outside districts and the lack of regional effort to address school desegregation. In addition to school district policies, local government land use policies and the facially neutral local government powers that underlie regional separation both have a role to play in undoing the problems left in the wake of Milliken. At the same time, Adams inspires readers to imagine solutions that may transcend boundaries and create a world different from the one in which Milliken arose: a world of schools without borders. The story of Detroit and Milliken remains critical because, as Adams explains, “Detroit was ‘Exhibit A’ of a much larger phenomenon.”¹⁴

Milliken is understood as a significant setback in the effort to desegregate America’s public schools because it effectively prevented courts from ordering remedies that would achieve meaningful integration, including busing and developing plans that involved multiple school districts.¹⁵ According to the majority opinion in Milliken, the facts required the Court to address “for the first time[] the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district.”¹⁶ The Supreme Court reasoned that an interdistrict remedy would be appropriate only upon demonstration that “there [was] a constitutional violation within one district that produce[d] a significant segregative effect in another district.”¹⁷ An interdistrict remedy also required a showing that “racially discriminatory acts of the state or local school districts, or of a single school district[,] [were] a substantial cause of interdistrict segregation.”¹⁸ The Court concluded that the plaintiffs had not met this standard.¹⁹ By severely curtailing the authority of courts to order these remedies, Milliken effectively placed court-ordered desegregation out of reach in metropolitan areas that had majority-minority urban centers with outlying separate, majority-white school districts—the way in which segregation is organized in many parts of the United States. Indeed, many legal scholars have vindicated the view expressed in Justice Thurgood Marshall’s powerful dissent that Milliken was a “giant step backwards” in the stride toward ending segregation in public education.²⁰

Part I of this Review starts with mid-twentieth-century Detroit, providing the context for Milliken as Adams explains it. It also frames the problem of metropolitan school segregation today, linking it to the legacy of Milliken as explored in The Containment. Part II considers interventions outside education law that can reshape racially segregated communities, specifically fair housing law and tools associated with local government law. The problems of school segregation by race and socioeconomic status, like many of the borders that confine children and families into districts, run in concentric circles. The Fair Housing Act is critical to making internal school district integration easier by changing the demographic makeup within cities, both central and suburban. Local government law can make school district boundary lines more porous between cities. Part III rounds out the outer layer of this circle by examining transformative interventions that sever the housing/school connection altogether: educational parks and a greater state and federal role in K-12 education.

I. The Story of The Containment and School Segregation Today

In a vibrant and detailed historical account, Adams connects the thematic threads that form the web of twentieth-century school desegregation cases. There is more to Milliken than the final opinion. The structure underneath has load-bearing beams grounded in local politics, history, and storytelling. By showing the power of connecting education and housing, Adams demonstrates how local political movements created momentum and how the Milliken plaintiffs’ strategy almost changed the landscape of constitutional law—until the Supreme Court stepped in. In broad strokes, The Containment follows the political and social movements that have shaped metropolitan areas around the country. It is a story of what led to the case that decimated the promise of Brown. Delving into that history is critical to understanding how we got here.

In its 1968 report,²¹ the Kerner Commission “indicted white America—white racism—and its greatest handmaidens: pervasive discrimination and segregation within the city, black ghettos that concentrated poverty and disadvantage, and white abandonment of the city via exodus to the suburbs. And undergirding them all was residential segregation” (p. 12). Detroit was no exception. The policy changes that led to the lawsuit in Milliken were a response to residential segregation in greater Detroit. In the late 1960s, Coleman Young was a Michigan state senator who rose to become the leader of Michigan’s Black legislators and who would later become Detroit’s first Black mayor. Young introduced a bill, signed into law in August 1969, which allowed the Detroit Board of Education to create new regional districts across the city. The bill responded to the demands of Black advocates who believed this structure would facilitate greater community control as the city’s schools became increasingly Black due to white flight (pp. 57–60). Thwarting these demands, Abraham Zwerdling, a white lawyer in Detroit who served as the Board’s “famously pro-integration president,” drew the lines to further integration rather than community control (p. 62). Zwerdling described the relationship between Detroit and its surrounding suburbs as a “vast conspiracy of silence” that used “artificial barriers at the city limits” to prevent children of all backgrounds “from sharing a common school experience” (pp. 62–63). Black advocates who wanted community control and white Detroit residents resistant to integration opposed Zwerdling’s plan. Young drafted a new bill that prohibited the implementation of the Board’s integration plan, containing a so-called anti-integration clause (p. 108). He figured the clause would eventually be struck down in court anyway; his faith in the judiciary, however, was misplaced (p. 108).

That bill would become Public Act 48,²² signed into law by Michigan Governor William Milliken in July 1970. In the ensuing political backlash, Zwerdling and the pro-integration board members were recalled by mostly white Detroit voters (pp. 110–11). A gubernatorial commission drew the eight statutorily prescribed regional boundary lines and made no effort at integration (p. 111). White anti-integration conservatives dominated the central board (p. 112). Black representation on the central board fell dramatically, and all but one of the twenty-two candidates for regional board seats aligned with the community control movement were defeated. The challenge to Public Act 48 that Young anticipated was Bradley v. Milliken, filed on August 18, 1970.²³ That litigation took this dispute from the realm of local politics into the federal judiciary. Along the way, the plaintiffs used storytelling to draw the connection between housing and education.

The NAACP’s challenge to Northern-style school segregation in Milliken thus focused on illuminating this relationship between schools and housing segregation and showing why that relationship should be a legally cognizable basis for a remedy. The complaint also focused on the Detroit Board of Education, alleging that the Board had maintained racial segregation of its students, faculty, and staff as official policy (p. 125). The trial strategy illustrated that de facto segregation as a concept was a myth. As James Baldwin once quipped, “[D]e facto segregation means Negroes are segregated, but nobody did it.”²⁴ In other words, the NAACP argued that the fact of a design itself suggests that someone “did it.” By virtue of a “dual” school system, the city’s schools “actually were de jure segregated” (p. 125). The plaintiffs argued that the state had violated the Equal Protection Clause when it passed a law voiding Zwerdling’s integration plan.²⁵ Of the many characters involved with Milliken, U.S. District Judge Stephen Roth perhaps best exemplifies the power of storytelling. As the trial judge assigned to Milliken, he underwent a dramatic change over the course of the trial that speaks to the ability of many white Americans to grow and change their minds by grappling with the facts about discrimination and injustice facing people of color.²⁶ At the start of the case, Roth admitted that “[n]othing had yet convinced him that Detroit was running a ‘dual system of schools, either de jure or de facto’” (p. 132).

During the trial, the plaintiffs’ lawyers framed the case as no different from a “classic 14th amendment lawsuit,” weaving a story of de jure segregation just like Brown using both words and visuals (p. 139). They argued that “school segregation cannot be separated from the policies of public and private discrimination in housing, and the dynamics of those policies.”²⁷ Milliken was unique from earlier Northern school segregation cases in that the plaintiffs had an “overarching commitment to probing the relationship between schools and housing” (p. 141). During a grueling weeks-long trial, the plaintiffs relied on a theory that gives Adams’s book its title: “containment” (p. 147). The plaintiffs introduced a map of metropolitan Detroit that showed the scope of residential segregation in the city, with overlays progressing from 1940 to 1970 (p. 149). They left the map in Judge Roth’s line of sight next to the witness stand for four months, allowing him to essentially meditate on the meaning of it alongside the evidence they presented. Each dot on a map of the Detroit metro area, including the cities that surrounded the city, represented 100 Black residents (pp. 150–51). The larger the population became, the more contained they remained. By 1970, “[t]he new containment line was the jurisdictional boundary of Detroit itself” (p. 160).

As a result of this storytelling, Judge Roth underwent a significant transformation in his perspective. All the evidence the NAACP showed Roth “had a catalytic effect on the judge’s thinking, exposing him to detailed information about residential segregation in both the city and the suburbs,” which Adams argues “almost certainly changed the nature of the desegregation order Roth ultimately imposed” (p. 152). In September 1971, Judge Roth issued his “Ruling on Issue of Segregation,” which found in favor of the plaintiffs (p. 208). The ruling illustrated how much he had learned, as he relied on the evidence of the “containment,” the confluence of racial discrimination and exclusion that kept Black residents out of majority-white communities. Judge Roth explained that there was a “corresponding effect on the residential pattern by the racial composition of the schools” (pp. 210–11). The trial court relied on the theory that the state had “plenary power” over the composition and dissolution of school districts and could change them at will (p. 212). In turn, the Michigan state defendants were liable for “creat[ing] and perpetuat[ing] systemic educational inequalities” and had “acted directly to control and maintain the pattern of segregation in the Detroit schools” (pp. 212–13; emphasis omitted). At a scheduling conference the following month, in October 1971, Roth indicated that he had “serious reservations” about a Detroit-only plan. He mused that “[p]erhaps only a plan which encompasses all or some of the greater Detroit metropolitan area can hope to succeed in giving our children the kind of education they are entitled to constitutionally” (p. 213).

In March 1972, Judge Roth allowed forty-three suburban school districts located in metro Detroit to intervene in the suit with respect to the desegregation plan (p. 233). Essentially, the Milliken lawsuit and the interdistrict remedy that the district court ordered were designed to bring about a transformational change that meant white and affluent school districts could no longer hoard the resources necessary to increase access to an excellent education.

This necessary context frames the story of the appeal, which led to the Supreme Court decision in Milliken—a case with which many legal scholars would become familiar. The interdistrict nature of the remedy was the major focus of the questioning during oral argument in Milliken (pp. 319–23). Judge Roth’s interdistrict remedy, grounded in an understanding of educational and residential segregation as intertwined, fell on deaf ears at the Supreme Court. The Court’s opinion followed the Sixth Circuit in not relying on the housing evidence in the case. “Ignoring the containment was a choice the court made[,]” Adams writes (p. 326). As former Justice Powell clerk Judge J. Harvie Wilkinson III observed, “By ‘ignoring housing, the Supreme Court [in Milliken] began to lift from white America responsibility for the ghetto’” (p. 326).

In Milliken, the Court “defin[ed] racial integration as a within-district rather than a regional obligation[.]”²⁸ The Court framed the question of integration as being about the rights and powers of school districts and institutions, not students. Viewing the issue of school desegregation in isolation leaves us with a litany of cases that, in close to chronological order, suggest a walk away from the core promise of Brown.²⁹ As a result of this shift in the doctrine, approaching school segregation directly through constitutional law doctrine is challenging.³⁰

While the book’s title generally refers to the “containment” of Black Americans in Detroit to the city and their exclusion from majority-white suburban communities, many other actors—white liberal school board members, NAACP lawyers, and ultimately the district judge who ordered an interdistrict, metropolitan-wide remedy—are “contained” by the noose of the suburbs surrounding Detroit, the power and independence of those cities and their school districts, and by an increasingly conservative Supreme Court. Racial exclusion is and remains—as Norman Rockwell titled his painting of Ruby Bridges walking, flanked by U.S. Marshals, to desegregate a public school—“the problem we all live with.”³¹

The story of Milliken v. Bradley provides powerful lessons for what it may take to break down what the wall at Eight Mile Road that stands between Detroit and the suburbs symbolizes: racial segregation and all the school district boundary lines that divide American children. Desegregating schools requires considering the underlying structural forces that facilitate school segregation and targeting those instead, with a view toward ensuring they indirectly facilitate integration: shared access to resources, opportunities, and interracial relationships and networks. Understanding and challenging this issue through fair housing and local government law could prove more fruitful than mounting a direct constitutional attack on school segregation. The following Parts of this Review lay out what this campaign could look like.

The remainder of this Review builds on the historical foundation laid in The Containment, with an eye toward the future. The analysis is framed as two concentric circles (not unlike the theory of the “donut effect”³²). Part II investigates the borders that shape residential communities and school districts through two areas of law: fair housing law (working within cities) and local government law (structuring boundaries between them). Like the inner-ring suburbs that surround cities like Detroit, this inner layer of the concentric circles connects the problem to solutions in the areas of law that shape the institutional forces driving school segregation, which are not without their own limitations. Part III considers the outermost of those concentric circles, contemplating opportunities for transformational change.

II. Change Inside the Lines: Fair Housing Law and Local Government Law

Legal arguments about school integration often focus on lawsuits against school districts seeking integration as a specific remedy. However, The Containment suggests the possibility of weaponizing the Court’s perverse, underlying logic in Milliken: the problem of school segregation is about institutional structures, not children. If Milliken and the case law on school desegregation that followed are thieves of the promise of Brown, one must think like a thief to catch a thief.³³ Indeed, the apparatus that keeps children divided is made up of institutions: the set of rules governing the homes in which they live, and the authorizing statutes that created the districts where they attend school.

A. Changing Demographics in Cities with Fair Housing Law

Government investment in housing has long been oriented toward the middle class rather than toward “an enduring social investment in poor people.”³⁴ An obsession with maintaining high property values, and the corresponding perception that the presence of low-to-moderate income families in a neighborhood lowers property values, are part of a broader effort by higher-income suburban governments to set policies that they claim will protect the wealth of their constituents.³⁵ The Fair Housing Act (FHA) has untapped potential in the litigation sphere on issues of school segregation. While it is not a silver bullet, there are many opportunities to ensure that the FHA is fully enforced in localities across the nation.

The Containment frames the issue of school segregation around the physical containment of Black Americans in certain areas, highlighting the misguided conception of white innocence that characterized the Milliken decision. The view of many parents in high-income, majority-white school districts—that they should have the power to control the makeup of the student population in their child’s school—seems to grow in part out of the premise that residents of school districts have chosen to locate there.³⁶ This premise relies on the longstanding theories of Charles Tiebout, who argued that this sorting of people into communities was an efficient means of allocating public goods because residents choose the packages of local taxation and services that come closest to matching their preferences when deciding where to live.³⁷ The effects of exclusionary zoning policies, however, make clear that people are not making those choices freely. They are not getting the goods that they “deserve” based on those decisions.³⁸ “Districts, cooperating de facto with the general local governments that encompass overlapping territory, jointly deploy zoning, tax policy, and school quality to compete for residents who bring taxable wealth and to exclude those who are poor and/or expensive to educate.”³⁹ These practices continue even though research indicates that cities with less restrictive residential zoning policies have, on average, higher-quality public schools.⁴⁰

The overlapping nature of majority-white cities with a history of racial exclusion and the school districts that cover these jurisdictions (what Erika Wilson calls “white island districts”)⁴¹ illustrates the extent to which limiting the powers of municipal corporations to zone out affordable housing is critical to facilitating school integration both within districts and within a broader region where school districts remain nominally independent but have an effect on each other. While civil rights advocates know Village of Arlington Heights v. Metropolitan Housing Development Corp.⁴² as the case that required proof of a “discriminatory purpose” to establish a discrimination claim under the Fourteenth Amendment, the result in Arlington Heights once the case was remanded to the district court also indicates the extent to which fair housing litigation can result in actual boundary changes.

In Arlington Heights, the Metropolitan Housing Development Corporation (MDHC), an affordable housing developer, challenged an ordinance in a majority-white Chicago suburb that prevented the organization from building an apartment complex on land it had acquired in the town. On remand, the parties informed the district court that they had entered into a proposed consent decree that would resolve the litigation by providing “for construction of a modified development on an alternate site.”⁴³ Under the consent decree, the city agreed to annex a parcel of unincorporated land near the Village’s southeast boundary adjacent to another suburb (Mount Prospect). The city agreed to use this parcel to accommodate the MHDC project and commercial uses.⁴⁴ The Village of Mount Prospect, along with some of its homeowners and neighborhood associations, intervened in the case to object to the decree. After three days of hearings, the district court rejected their objections and entered the consent decree. The Seventh Circuit narrowly affirmed on appeal.⁴⁵ School districts typically have the power to annex neighboring jurisdictions⁴⁶—a similar power was at the heart of the dispute in Arlington Heights,⁴⁷ which involved a policy allowing increased housing access to lower-to-moderate income people of color.⁴⁸ Since Arlington Heights, federal courts around the country have issued decisions striking down race-based exclusionary zoning under the FHA, including many handed down in the last ten years alone.⁴⁹ “The clear command of FHA law now is that local governments cannot block or limit affordable housing if that action is motivated by racial discrimination or has an unjustified segregative effect.”⁵⁰

However, FHA litigation is not a perfect solution. These cases have made “little progress . . . in desegregating metropolitan areas and in producing sufficient affordable housing in opportunity-rich suburban communities.”⁵¹ One major problem is “the willingness of builders to undertake such projects in white suburbs and to follow up with appropriate litigation” if the local government refuses to approve or interferes with construction of the development.⁵² Every builder may not have the stomach to confront this kind of opposition alone. It is crucial, therefore, to expand the class of plaintiffs bringing challenges to exclusionary zoning ordinances to include local residents and fair housing organizations.⁵³ However, commenters have also long recognized “the quite substantial practical inhibitions to mounting a housing project in the hope of eventually prevailing in protracted litigation[.]”⁵⁴ “[E]ven when an exclusionary zoning claim does ultimately prevail, the case may take years—and millions of dollars—to litigate, and then may not result in the proposed housing actually being built.”⁵⁵ Nonetheless, increasing the number of challenges by expanding the parties invested in these cases increases the likelihood of success and the cost of exclusion for local governments.

The limits and practical realities of litigation alone, however, are not the cause of litigation’s failure to “loosen the grip of exclusionary zoning and open up segregated areas of opportunity to” people of color.⁵⁶ The game of zoning has changed. Local governments have moved away from the “good housekeeping” described in Euclid v. Ambler Realty Co.,⁵⁷ the case that first recognized the constitutionality of local governments’ power to engage in zoning,⁵⁸ to an emphasis on “growth control.”⁵⁹ “Zoning’s shift toward restricting growth was embraced by all segments of the political spectrum, including pro-environmental liberals . . . . [R]estrictive zoning practices became ubiquitous even in the most ‘progressive’ states like California and Connecticut.”⁶⁰

The shift to an emphasis on growth control, however, does not necessarily make the principles underlying major cases targeting exclusionary zoning under the Fair Housing Act inapplicable or doctrinally weak. After all, the Seventh Circuit declared in Arlington Heights that local zoning rules must “give way to the Fair Housing Act.”⁶¹ Rather, exclusionary zoning is arguably too dominant a force to fight primarily or solely with litigation. While enlisting individual residents to challenge exclusionary zoning policies in their towns would capture and strike down more policies, such a strategy is essentially a game of whack-a-mole in which zoning regimes founded on growth control exclude single-site projects or broadly have the effect of excluding affordable housing from an entire jurisdiction. Nonetheless, targeting zoning and its problems—whether through policy, litigation, or otherwise—is a necessary intervention for advocates of school integration, and it may be more effective than school desegregation litigation on constitutional grounds. Indeed, there is growing recognition that zoning plays a major role in the nation’s housing crisis and is also paradigmatic of government inefficiency that blocks progress and limits capacity of the private market and the state to solve pressing problems.⁶² Opposition has even become bipartisan.⁶³

The Containment focuses much of the story on the racial composition of Detroit but less on the factors that kept the suburbs that surrounded Detroit mostly white. Adams writes in depth about Detroit, but the book does not touch on the more than a dozen suburbs surrounding it that were sundown towns trying to keep Black residents out.⁶⁴ Indeed, the Milliken plaintiffs’ lawyers spent so much time figuring out how to prove liability against the Detroit city school district that they neglected to plan for the more than fifty suburban districts that contributed to the problem (pp. 126–127, 215). As a result, they struggled to litigate across school district lines.

The Fair Housing Act has a role to play in ensuring that children of color have a higher likelihood of living in communities that have historically been majority white and exclusionary. Still, it is important to remember that this game is played within the confines of the existing system.⁶⁵ Fair housing litigation can force or incentivize local land use policy reforms that increase access to affordable housing.⁶⁶ More affordable housing would facilitate class and racial integration in schools in particular jurisdictions. The story of Milliken, however, provides a cautionary tale that we are spending much of the time focused on particular towns but are not addressing interdistrict remedies or state oversight and coordination of school districts more broadly.

B. Trap for the Unwary: The Law of School District Power

The power of federal, state, and local land use and housing laws is also deeply intertwined with the structure, operation, and power of school districts. The story of school segregation after Milliken is driven by laws governing school districts themselves. School district boundary lines account for much of the problem of school segregation, even today, more than fifty years after Milliken.⁶⁷ Yet school desegregation litigation and public policy generally accept district boundaries as a given.⁶⁸ The challenges the Milliken plaintiffs faced in advocating for a proper interdistrict remedy⁶⁹ expose the tension between the formal subordinate status of school districts and the actual independence they possess by law and in practice.

As a definitional matter, a school district is a “territorial unit within a state that has responsibility for the provision of public education within its borders.”⁷⁰ School districts are considered creatures of the state, limited by the powers that the state’s constitution and legislature grant them.⁷¹ States generally provide districts with the authority to collect taxes on property within their boundaries.⁷² In a small number of states, notably Texas and Vermont, “Robin Hood” plans redistribute some local school tax revenue from rich to poor districts.⁷³ As a consequence of this formal power, state legislatures “have plenary legal authority to change boundary lines through consolidations, mergers, or annexations—or at least allow for permeability in the form of interdistrict transfer policies—to increase equity.”⁷⁴ “[F]rom a formal, legal point of view, school districts are quintessentially un-sovereign.”⁷⁵

At the same time, “localist educational governance has very deep foundations in American politics.”⁷⁶ There is an ideological commitment to local control that purports to justify granting school districts more autonomy than their formal status otherwise suggests.⁷⁷ States allow local school districts to decide whom they will educate, even if the person lives in the school district, with no obligation to educate children who live outside the district.⁷⁸ Districts may admit nonresident students if they so choose, and state laws permit them to charge the student’s home district a fee.⁷⁹ Nearly every state also gives school districts sweeping control over hiring, firing, budgeting, and setting curriculums⁸⁰ (though curriculum control is increasingly under attack from state legislatures⁸¹). Courts have also allowed parents to unduly influence what school districts teach and required school districts to allow parents to opt out of instruction.⁸² However, parental authority to affect the school districts’ powers remains limited; the few objections that courts have been willing to recognize are narrow compared to a school district’s other sweeping powers.⁸³

School district boundary lines account for almost two-thirds of racial and economic segregation in schools, as boundary lines segregate students among districts rather than within them.⁸⁴ With respect to the Midwest, according to one researcher, almost 60 percent of the school segregation in the region is the result of interdistrict segregation.⁸⁵ School districts in the Midwest also tend to follow municipal boundary lines, meaning that cities often control their own school districts rather than becoming part of a larger regional or county-wide district.⁸⁶ In considering the malleability of district boundaries, practitioners and scholars should not underestimate the impact that school districts (and their power) can have on each other. While it may seem that “[o]utside their territory, districts are powerless[,]” the “interaction of a large number of districts” contributes to significant “interdistrict variation in educational quality”⁸⁷ to the detriment of lower-income, majority-minority school districts. Wealthier school districts sometimes benefit from the decline of neighboring districts, a phenomenon not unlike a policy of “beggar thy neighbour.”⁸⁸ Detroit is a case in point—its city school district became lower-performing and chronically underfunded (pp. 362–64) as performance and resources increased in neighboring districts like Grosse Pointe.⁸⁹

The power to create new towns also compounds racial stratification resulting from these other factors, “provid[ing] an ostensibly race-neutral vehicle through which to organize along racial lines, societal structures, lived experiences, and access to resources.”⁹⁰ In this way, the law governing municipalities, including the power of home rule and local regulation, can become a “conduit for lawfully establishing a racial hierarchy” and creating municipal fragmentation.⁹¹ Local responsibility and control over schools allowed these racialized boundary lines to impose the same racially exclusionary results on school districts, yet law and public policy overlook this history in evaluating the placement of school district boundary lines.⁹²

Scholars have consistently identified local educational governance as a root cause of inequality of educational opportunity in the United States.⁹³ The rules governing the powers of school districts and their boundaries are generally not considered part of the field of antidiscrimination law, which typically does include the FHA. Critical race theory scholarship, however, has illuminated the fact that “[l]aws produced racial power not simply through narrowing the scope of . . . anti-discrimination remedies, nor through racially-biased decision-making, but instead, through myriad legal rules, many of them having nothing to do with rules against discrimination, that continued to reproduce the structures and practices of racial domination.”⁹⁴ The rules that govern the outcome in Milliken should not be separated from the laws that create the larger structure of balkanized, divided local government.

These laws, governing and animating the formation of towns and the operation of school districts, fuel the internecine competition for resources and control in many metropolitan areas divided between inner cities and outer suburbs. They facilitate forms of segregation that the Milliken Court put beyond the reach of constitutional scrutiny. These laws underwrite structures and boundaries that keep segregation in place in communities, and by extension, in the schools they serve. But they have nothing to do with antidiscrimination law, in a direct sense. During the rise of antidiscrimination law in the mid-twentieth century, school boundary lines took on a much greater role in preserving the segregated status quo after court-ordered desegregation.⁹⁵ Adams homes in on the foundational question: In a system where the low-income Black student population is steadily increasing, and in a city that is experiencing chronic white flight from Detroit Public Schools and greater Detroit, how could the remedy not include the fifty-four suburban school districts?⁹⁶

One way of reading the plaintiffs’ strategy in Milliken is that the plaintiffs’ lawyers fell into a trap for the unwary: the ambiguous nature of school district sovereignty. While legal and education scholars alike have recognized the extent to which state law ostensibly limits the powers of school districts, the districts functionally retain a significant amount of authority and independence.⁹⁷ As Adams tells it, the lawyers’ theory was that the school districts should not need to be brought in separately because they “weren’t mini-sovereigns” (p. 127). The literature indicates, however, that this presumption is not as solid as the black-letter law suggests. Perhaps reflective of its own ideological shift at the time, the Milliken Court exploited the ambiguity in legal doctrine around school district sovereignty, putting a thumb on the scale to reinforce the power and independence of school districts. The neighborhood school became a paragon for similar reasons.⁹⁸

Adams’s deep dive into the Milliken plaintiffs’ litigation strategy is valuable in part as a cautionary tale for civil rights litigators. It reveals the fundamental shortcoming of local and municipal governance as a tool against educational segregation. The Milliken plaintiffs confronted that shortcoming: the deep-seated tension between formalism and black-letter law, and the realpolitik of law.⁹⁹ Formally, school districts are “creatures of the state,” and a remedy against the state should easily allow the state to reorganize and direct the districts to comply with a broader constitutional or federal mandate. At the same time, daily experience with public schools reveals that public school districts are not as legally subservient as they seem. Sometimes, courts hostile to civil rights claims are looking for a legal ambiguity to distinguish the case from prior case law that would otherwise require finding liability or mandating a broad remedy. A successful litigation strategy must account for both: a defense based on formalism, and a defense based on realpolitik.

In Milliken, the decision to sue only the state defendants relied on formalism. Suing all the surrounding school districts, developing a theory of liability for them as a class, and requiring them to defend against it, may well have been a realpolitik approach. The tension, however, is that one theory undermines the other, and the litigator is forced to choose. Despite this tension, the plaintiffs’ lawyers could not overcome the shift in the Supreme Court. The mounting iceberg of Nixon appointments just before Milliken reached the Court may have meant the case would surely become a sinking ship. If the justices wanted to block an interdistrict remedy, they would find a way to do so.

While the conventional wisdom is that “claims that educational inequities are properly subject to systemic remedies and that implementable remedies can be based upon the redrawing of boundaries are familiar and uncontroversial”¹⁰⁰ to courts and educational authorities, the realpolitik factors are influential here. Specifically, deference on the ground to the power of school districts and the demands of parents who hold systemic advantages makes these formalistic claims ring hollow. Like other local government boundaries, school district boundaries have historically been viewed as immovable features of the political and legal landscape.¹⁰¹ Courts and state lawmakers have treated them as permanent rather than contingent and as having an independent significance rather than being the result of choices that may be (intentionally or otherwise) exclusionary, inconsistent with the goal of an integrated society, or violative of constitutional principles. These institutions have justified school district boundaries based on the fiction that they are “the inevitable function of physical geography and a commitment to democratic norms, freedom of association, private property rights, and freedom of contract.”¹⁰²

The Milliken Court adopted this fiction.¹⁰³ It granted legal significance to existing school district and municipal boundaries, framing them (ironically) as barriers to the enforcement of constitutional rights. As a result of Milliken, school and municipal boundaries now block modern, imaginative processes for making the constitutional promise of Brown a reality. Still, these boundaries do retain some flexibility: “Legal rules that define school district boundaries as semipermeable, allowing some things to freely pass across them while others are restricted or blocked, have made boundaries—the lines that separate districts on the map—one of the great engines of educational inequity in America.”¹⁰⁴ That permeability is somewhat inconsistent. On one hand, residents outside of a school district cannot vote on matters related to that district’s affairs.¹⁰⁵ On the other hand, districts are permeable in terms of how they accept funding, particularly in the form of federal and state aid.¹⁰⁶

It is ultimately in the best interests of local governments in metropolitan areas to use their local control to facilitate collaboration. School districts with declining tax bases can consolidate or share resources by agreement.¹⁰⁷ Jurisdictions can set shared zoning priorities and balance the presence of affordable housing, distributing development between them.¹⁰⁸ As inner-ring suburban school districts struggle to maintain their tax bases and experience funding drainage into neighboring districts, they stand to benefit from regional collaboration.¹⁰⁹ Making boundaries more porous is also consistent with the growing recognition of the challenges facing majority-minority central cities. “Increasingly, solutions to the hollow-prize problem lie in the politics that take place between jurisdictions, not within them.”¹¹⁰ Transcending these barriers is a crucial part of eliminating today’s reality in which a child’s zip code determines their access to a quality, integrated education. Targeting the rules that shape local governance institutions and school districts, though not a perfect mechanism, can advance that goal.

III. Severing the Housing/Schools Connection Altogether

The statutory and local governance approaches described in the previous Part are useful components of a holistic campaign against de facto segregation. But they are not silver bullets; the sheer scale of racial segregation in education (and relatedly, in surrounding towns and neighborhoods) arguably begs more transformational responses. This Part considers one of these transformational ideas: the “schools without borders” approach. This is the outermost of the concentric circles. Like the outer-ring suburbs, this is “where the money [is]” (p. 119).

School integration depends on multiple, oppositional dualities: white versus black, de jure versus de facto, racial integration versus Black separatism, housing versus schools. Dualities, however, can come with their own negative consequences from each end of the spectrum. Understanding the “technology of oppression” helps us overcome binaries and move us toward transcendence.¹¹¹ The problem of the “housing-schools nexus” (p. 45) is well-known.¹¹² “[T]he tether between geography and public schooling—particularly school assignment and school finance—creates ‘institutionally self-reinforcing processes’ that can racialize the place elements of school districts.”¹¹³ Severing that proverbial tie that binds is critical to unlocking a path toward racially and socioeconomically integrated school systems.

The solutions discussed in this Review, however, admittedly have their limitations. The challenges of exclusionary zoning litigation under the FHA begin to illustrate some of the Act’s limitations.¹¹⁴ Fair housing law tends to mask “a significant structural lever of racial exclusion: socioeconomic status[,]” including the effect of the racial wealth gap.¹¹⁵ Fair housing law, however, has great potential to influence and drive policy reform as communities consider race-neutral policies, like mitigating the effects of climate change¹¹⁶ and remedying the impact of discriminatory land use policies, which have directed and continue to direct locally undesirable land uses to communities of color.¹¹⁷ Likewise, within the area of state and local law governing school districts, undoing the permanence afforded to boundaries under state law to mitigate the inequities that arise from sorting across jurisdictions while preserving the “benefits that attach to local governance” has proven to be a challenge.¹¹⁸ This adjustment, however, does not necessarily untether the relationship between people and place because new lines can exclude new people in evolving and unexpected ways.¹¹⁹

Disrupting the connection between school and residence requires disrupting (at least to some degree) the traditional conception of the role of federal, state, and local government in K-12 education. The history of Milliken that Adams offers challenges us to consider how we can take America out of the morass of the school district balkanization that fuels racial segregation and inequality. What if a region shared one or more schools in a way that did not require the desegregation plan Judge Roth ordered the state Board of Education to devise? This is a vision of schools entirely without borders.

Here, Adams’s historical account provides inspiration for the broader purpose of disconnecting housing from schooling. The Containment places the events leading up to Milliken and the proceedings during the case within the context of broader social movements, federal legislation, and the emergence of legal doctrine related to school desegregation in the courts. The integrationism of Detroit Board of Education President Abraham Zwerdling could not be understood outside the rise of socially progressive views in the 1960s, which held that “it was government’s job to increase social welfare not just for the few, but for the many” and that “this brand of liberalism was inexorably tied to racial integration” (pp. 65–66). Reverend Dr. Martin Luther King framed the obligation to build a “peace army” that met “physical force with soul force” (pp. 67–68). This “soul force” required “Americans of all stripes” to commit to “the nonviolent destruction of Jim Crow” (p. 68).

In a time where the United States needs fresh ideas to counter the racial divide that has caught up to it, Adams’s discussion warrants a renewed commitment to this concept. Even Adams describes with nostalgia her visit to the neighborhood that was once home to Clinton Elementary School (pp. 377–78). The allure of the neighborhood school had a beauty to it, but ultimately, Adams rightly concludes that “while a ‘neighborhood school’ is a public school, it is one that excludes far more students than it serves” (p. 378).

Zwerdling’s passion for integration came from his own experience in public schools as a child in Michigan where everyone in the community went to one school. Zwerdling told a reporter: “When I went to high school in Ann Arbor . . . there was only one high school. Everybody in town went there—black and white, rich and poor. That was an American school. I don’t think of white schools and black schools. I’m only concerned about American schools” (p. 63). His view, however, sounded quixotic in communities like metro Detroit where schools were and are still racially identifiable.

But Zwerdling may have pictured a solution that integration advocates suggested would work in the South and the North, despite the contextual differences of segregation: the educational park (pp. 63–65). The “central idea” of the educational park “was to sever entirely the connection between schools and housing, thereby undermining the impact of residential segregation on the schools” (p. 64). The advocates for educational parks used the public university as a model. They described “huge parklike campuses spread over fifty or a hundred acres and serving thousands of students in multiple grades” (p. 64). They emphasized the importance of locating them in central areas, so that both urban and suburban parents could reach them. Proponents of educational parks also recognized that white parents had more choice in the selection of schools and housing for their children than Black families. Thus, the second goal of the educational park was to “provide a peerless educational experience . . . . They would have state-of-the-art libraries, computers, facilities, and programming, and top-notch teachers and counselors” (p. 64).

President Lyndon Johnson’s education commissioner was an enthusiastic supporter of educational parks. He recognized that they would depart from the “hyperlocal” nature of education and would “deny the neighborhood school” (p. 64). The educational park concept (p. 64) departs entirely from traditional conceptions of school district boundaries and concepts of local control. It runs counter to the idyllic vision of neighborhood schools that is deeply embedded in American culture. Yet educational parks offered and still offer in exchange “a genuine city school in the deepest sense . . . rather than going to school in one section of the city which is untouched by the broader influences of metropolitan life as a whole” (p. 64). Ultimately, the educational park represented the significant increase in federal investment in K-12 education that its opponents in the 1960s viewed as a threat to local control (p. 65).

If the federal government were to return to an effort to establish or fund educational parks, it would need to become comfortable with “a larger federal role in education to hold the states accountable for ensuring that all students receive equal access to an excellent education.”¹²⁰ While it is true that theories of federalism should avoid adherence to a single theory for all occasions because “[b]oth in theory and practice . . . there are many federalisms, not one[,]”¹²¹ and the appropriate balance of institutional arrangements that respect state and federal authority differs from one context to the next, federalism, at a minimum, should advance concepts that further broad constitutional principles and the Constitution’s other mandates, particularly around individual rights and national cohesion, and the formation of a “more perfect Union.”¹²² The Spending Clause can still serve as a proper source of authority for Congress and the Executive Branch to expand the federal government’s authority over education and to restructure the delivery of education, despite the Court’s ruling in National Federation of Independent Business v. Sebelius¹²³ in which it placed meaningful limits on the reach of Congress’s power under the Spending Clause for the first time.¹²⁴ As James E. Ryan has argued, “[s]o long as states accept federal funding, Congress can do pretty much as it pleases with education—even establish a national curriculum and a national exam—without running afoul of the Constitution.”¹²⁵

The premise that state and local governments maintain control of public schools, with the federal government having a limited role, grows out of an omission—the fact that education is not specifically committed to the purview of the federal government—and “the Tenth Amendment’s reservation of state authority in all areas that the Constitution does not assign to Congress.”¹²⁶ The truth is, however, that the federal government’s role over education has grown throughout the history of the country, particularly after Brown.¹²⁷ Congress has passed several laws designed to foster equal educational opportunity, including the Elementary & Secondary Education Act of 1965.¹²⁸ One can also view the glass of school district power as half empty or half full. While local school districts have considerable control over the administration of school districts and the power to raise revenue through property taxes, in some ways, that is essentially the limit of their authority.¹²⁹ Against this backdrop, the Tenth Amendment has long been a “paper tiger.”¹³⁰

There is also some merit to the position that Congress has the power to establish educational parks pursuant to its powers under the Thirteenth Amendment. In Jones v. Alfred H. Mayer Co., the Supreme Court construed the Amendment to have done more than simply abolish African slavery (p. 439);¹³¹ the Court found the Amendment also empowered Congress to “pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”¹³² The Court recognized that Section 1982 of the Civil Rights Act of 1866 authorized the plaintiff to bring a claim against a real estate company that refused to sell him a home in a white section of St. Louis County, Missouri, solely because of his race. Congress could also exercise this broad authority to determine that school segregation is the result of the badges and incidents of slavery. The problem of exclusion based on race from certain schools that were otherwise open to the general public has followed Black Americans during and after the era of slavery.¹³³

Revisiting the concept today suggests that federal and state governments alike can establish educational parks. In an era of gridlock and declining public investment at the federal level,¹³⁴ a path to the same goal that runs through the states provides some reason for hope. States can also fund and establish educational parks themselves. The formal, plenary power that states have over school districts grants state legislatures the authority to abolish and combine school districts.¹³⁵ It also allows them to establish a school district to which public school students from certain areas may be assigned. For example, the Virginia Department of Education operates nineteen Governor’s Schools, which are public high schools that run during a normal academic year in designated regions across the state.¹³⁶ One of them is the Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia, locally known as “TJ.”¹³⁷ TJ, which is ranked among the leading public high schools in the nation, is an example of a school that selects its students from across multiple school districts.¹³⁸ Likewise, Mississippi has established specialized boarding schools at the high school level where students from across the state can live and attend school on campus.¹³⁹ While these examples are magnet schools for advanced or gifted students, states can broaden the selection criteria to make all students eligible to attend a shared school environment that crosses school district lines. They can also use this model for elementary schools, either boarding or nonresidential, depending upon local preference. These regional or statewide approaches improve upon the impact of magnet schools in fostering racial integration within school districts,¹⁴⁰ but most importantly, they cross district lines. This produces real, structural transformation rather than perpetuating the inequities that flow from solely intradistrict strategies.

Where necessary, voters may also approve amendments to state constitutions to grant the state additional powers not provided under existing state law. For example, in 2003, Louisiana voters approved an amendment to their state constitution that authorized the state Board of Education to take control of “a public elementary or secondary school which has been determined to be failing.”¹⁴¹ That same year, the Louisiana legislature passed a law to create what became the Recovery School District of Louisiana (RSD).¹⁴² RSD is a separate school district, administered by the Louisiana Department of Education, which operates schools taken over by the state because the schools failed to meet academic standards.¹⁴³ While most of the schools in RSD originally were in New Orleans and were largely under the administration of the Orleans Parish School Board before Hurricane Katrina, RSD later took over schools in four other parishes.¹⁴⁴

The objective of this example is not to endorse the RSD or describe its virtues or faults. It is simply to illustrate the vast powers available to states and state legislatures to refashion school governance and school district power when they have the political will,¹⁴⁵ which can be used to establish and operate educational parks that further the goals of school integration. In the same way, a state legislature can create a school district that covers multiple existing school districts. The state could run the educational park, and students could apply or be assigned to the educational park without regard to academic ability, such that the school would not be a magnet school but have a similar range of academic skills as a traditional public school.

The purpose of educational parks is to address the roots of this history of school segregation and the “containment” that follows from it. This approach has the potential to reduce the salience of residential segregation in determining a child’s educational opportunities, and there are local, state, and federal levers to pull to achieve that end. The educational park is important to consider as part of a broader paradigm shift around achieving integration and uplifting the leadership interests of parents of color. Opponents of reducing local control over public schools claim that “genuine local control is necessary to the project of democratic education.”¹⁴⁶ The experience of Black parents seeking greater political control over Detroit’s public schools in the 1960s, however, suggests that the primacy of local control does not actually extend control to everyone. Every effort by Black parents to increase their influence over their children’s education was sidelined, even as the school district’s student population became majority Black.¹⁴⁷ Local control thus becomes a flattened process, where the interests of all community members are not necessarily represented, or represented fairly.

The educational park also responds to the challenges and concerns related to the logistical hurdle of physically transporting students. Even when students of color move into majority-white school districts, they are more heavily policed by school resource officers, or internal school police forces.¹⁴⁸ School districts more often launch investigations into whether students of color comply with residency requirements than they do against white students.¹⁴⁹ Within districts, schools use ability grouping in ways that disproportionately move students of color into tracks with lower levels of rigor.¹⁵⁰ While “whites’ attitudes about racial segregation have evolved, showing a steady increase in their tolerance for integration generally and in their willingness to live in integrated neighborhoods[,]”¹⁵¹ Blacks “are more skeptical about integration in 2018 than they were in 1968.”¹⁵² The educational park provides an opportunity for those students to start over, with a new school in a new space with governance shared across an entire region.

The narrow constraints built into fair housing law and the limits of local government and land use policy raise the concern that perhaps these laws really represent the “master’s tools” about which writer Audre Lorde warned the world: “For the master’s tools will never dismantle the master’s house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change.”¹⁵³ Instead of using the master’s tools, Lorde challenged the world to learn a new way, outside of the confines—the containments—that they were used to observing. This is what it will take to learn how to pursue problems more creatively:

It is learning how to stand alone, unpopular and sometimes reviled, and how to make common cause with those others identified as outside the structures in order to define and seek a world in which we can all flourish. It is learning how to take our differences and make them strengths.¹⁵⁴

The educational park concept has long been subject to efforts to shelve it (pp. 64–65). Yet it represents a truly transformational response to these intersectional, multi-institutional inequities. Educational parks can facilitate the union of children across school districts and communities, across boundaries of race and class, to learn “how to make common cause” with people inside and “outside the structures.”¹⁵⁵ They offer the next generation of children the opportunity to learn how to live together in one country, even if their parents have not had the same opportunity.

Conclusion

Desegregation, at its core, is about racial unity and social cohesion: the building of a nation. In Parents Involved, Justice Breyer’s dissent reminded the court that Brown “sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.”¹⁵⁶ As Adams explains: “[W]hen you strip away all of the technical legal doctrine, Brown was about the promise that one day we could live together as one nation rather than two. Brown was about uniting our country rather than dividing it” (p. xxviii). Milliken represents the potential of the courts to use legal doctrine to obstruct broader principles and goals, to narrow a rule so profoundly that the original principle is obscured, contorted, or rendered unrecognizable. Thurgood Marshall’s motto, “You do what you think is right and let the law catch up,”¹⁵⁷ is a reminder that the law and the “right thing” are not always one and the same. But through doctrinal creativity, determined advocacy, and the courage to reach for transformative solutions, practitioners and scholars can perhaps overcome these obstacles and revitalize the dream that led to the suit in Milliken.

*Assistant Professor of Law, University of Mississippi School of Law. The author would like to thank Florence Wagman Roisman, Stacy E. Seicshnaydre, and former Assistant Secretary for Fair Housing and Equal Opportunity Elizabeth Julian for their comments on this Review. He also thanks Lila Nazarian and Sabriya Imami for their thoughtful edits, which improved the quality of the final product.