Friday, July 27, 2007

Mourning in America

Is focusing on the positive in the schools cases, the small remnants of Brown preserved for future generations, a mistake? In Patricia Williams's column this week in The Nation, in which she compares the decision to the assassination of Martin Luther King, Jr., Williams argues that it is:

"What concerns me at the moment is the general lack of outcry that has met the decision that public school districts cannot take voluntary action to overcome racial inequality. This represents, for all intents and purposes, the overturning of Brown v. Board of Education. Yet the response in many quarters has been to put a positive spin on it. At least it was a plurality decision. At least Justice Kennedy allowed that diversity is an interest....

And while the Supreme Court may force schools and employers to turn a blind eye to racism's ruinous cost of illiteracy, unemployment and poverty, the "war on terror" has reinvigorated profiling by race, religion, ethnicity and lord-knows-what-else. We seem well on our way to resurrecting a dual society, at one level of which no one sees a thing--the show must go on, so to speak. But some of the rest live in a shadow nation where race is a mark of unspeakable yet indelible consequence. "


Wednesday, July 25, 2007

The Impact on Higher Ed: Better than Expected, Worse than It Seems

Gary Orfield, Erica Frankenberg and Liliana M. Garces of the Civil Rights Project wrote on July 24th in Inside Higher Ed that the Supreme Court's decision in Parents may not be cause for relief. They said "While a bullet was dodged, optimism should be restrained. The dike protecting affirmative action has held but the river that brings diverse groups of students to colleges may be drying up as a result of the latest decision."

Orfield, Frankenberg, and Garces argue that selective colleges and universities depend on attracting qualified applicants of color to their schools, and many of those applicants come from interracial schools. They go on to note that highly segregated schools produce less academically preparared students who are " often not ready to function socially on a largely white, affluent campus."

Rising segregation in schools, the authors state, will have two major implications for higher education: "First, rising segregation is likely to bring a rise in educational inequality and less prepared black and Latino students. Second, all incoming students are likely to have fewer interracial experiences prior to attending college meaning they will be less prepared for effective functioning in an interracial setting."

Orfield, Frankenberg, and Garces call for institutions of higher education to help limit the ill effects of the decision and keep alive the legacy of Brown by assising local school districts in finding legal and workable solutions to maintain diversity and taking a public leadership and education role in continuing to argue for the importance of integrated educational settings.


Tuesday, July 24, 2007

An Imbalance Grows in Cambridge Schools

In today's Boston Globe, Tracy Jan reports that Cambridge, touted as a national model for its economic integration plan, has become more racially segregated over the five years that the plan has been in practice.

"Under the plan, parents list their top three choices and are entered into two pools, depending on whether their children qualify for federally subsidized lunch, which serves as a common gauge of poverty. To qualify, a family's annual income, depending on its size, must range between $12,740 and $43,680; 45 percent of seats in each school are reserved for low-income students to reflect the district average. Schools could fluctuate 15 percent above or below that amount."

Unfortunately, however, while the plan has been modestly successful at economically desegregating the schools, Jan writes that "[P]arents choose schools where they feel the most comfortable, and their choices often split along racial lines. Some high-poverty, mostly minority schools have low-income families on their waiting lists but have trouble filling spots reserved for middle-class students. And some higher income schools popular among middle class families have empty seats for low-income students."

For schools looking to bring their integration plans into line with the recent decisions, Cambridge's combination of parent choice and economic diversity guidelines might be a good place to start, but changes must be made to ensure that racial diversity does not suffer as a result.


Friday, July 20, 2007

Guest Blogger: The Beginning of the End for Conservative Race Theory

By Christopher Newfield, Professor, University of California, Santa Barbara

One of the truisms of our time is that conservatives rule American politics because they have won the battle of ideas. Although The Supreme Court's new rejection of the use of race in diversity programs in the Louisville and Seattle school districts (No. 05-908) seems like redundant confirmation, the real story of the case is Justice Breyer's astonishing 77-page dissent.

Breyer dismantles every moving part of the conservative case, one piece at a time. The case will not be remembered for its plurality opinion but for Breyer' dissent, which reassembles a democratic theory of racial integration.

In the Seattle decision, Chief Justice John Roberts bases the plurality opinion on the standard, three-part conservative argument. First, racial classification is always and intrinsically bad, not just when it is used to subordinate or stigmatize a group. Second, with very rare exceptions, racial classification can only be used to reverse an institution's own prior, state-sanctioned segregation: voluntary improvements are not allowed. Third, racial diversity is almost always a cover for numerical quotas that try to make institutions conform to the racial mixtures that prevail in society at large. Diversity's secret goal is what the Chief Justice calls "racial balancing," and it is unconstitutional.

As is equally standard in such contexts, racial consciousness is presented as a central threat to individual rights and personal choice. Finally, the icing on the conservative cake is that the color-blind scheme turns out to be, in this view, the only effective form of anti-racism: to cite Roberts' media tag-line, fully pre-tested by conservative think tanks: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The real causes and effects that shape American society are replaced by a series of scholastic equations, in which race blindness equals race legality equals race justice, and the package is held together by a tone of superior moral rectitude toward the race conscious authorities who impair the freedom to choose.

Breyer systematically rejects each of these claims. First, his lengthy examination of precedent shows that the Court has repeatedly endorsed racial classification when it includes rather than excludes. The whole point of applying "strict scrutiny" standards to racial classifications is precisely to "take relevant differences" between "fundamentally different situations . . . into account." The Roberts plurality, Breyer writes, is in fact breaking with Court precedent in order to make strict scrutiny "fatal in fact" to all racial classification across the board. The power of Breyer's opinion comes from his relentless evisceration of the taboo against race-consciousness based on the Court's own decisions. The conclusion is that the cornerstone of conservative race theory has no basis in the Court's own opinions on race.

Second, Breyer shows that court-sanctioned de jure discrimination ("segregation by state action") is not the only kind that can be addressed with race-conscious programs: de facto discrimination, like the educational effects of housing segregation, is also a legitimate target. The stakes here are whether schools, with public support, have the right to seek to increase racial mixing in communities where larger housing and income patterns make that mixing unlikely. Conservatives have said no, race-conscious remedies can be used only in cases of extreme previous racism, which is like saying that pesticide bans should apply only to former toxic waste sites and not to the landscape at large. Breyer's argument is a fundamental rejection of the conservative restriction.

Third, Breyer argues that the goal of diversity practices is to keep racial integration from moving full speed into reverse. The gains of the period between 1968 and 1980 have been almost entirely lost, as nicely articulated by Breyer's description of the empirical evidence of resegregation. Does the desire of white parents to send their children to whatever school they want always trump the goal of keeping residentially segregated racial groups in communication with each other? Breyer argues that the state has a compelling interest in the use of education to create the powers of understanding that underwrite a multi-racial democracy. He also argues that the districts have bent over backwards to protect individual choice, thus rejecting the Right's assertion that choice and racial diversity are contradictory.

The effect of Breyer's opinion is to hold conservative race theory to account. It has dominated the courts during the same period in which school segregation has increased, when administrators and teachers have had to jump through new legal hoops every year, when educational disparity - like the economic kind - has increased all over the country. Advocates of color-blindness has made all of this worse, attacking nearly all programs of racial inclusion as assaults on liberty, painting as dire threats the integrationist remedies that thirty years ago were considered the least society could do.

Color-blindness has also allowed many white parents to dodge the question of whether they are willing to fix the multi-racial schools their children are assigned to rather than fighting endlessly to keep them from going there in the first place. Conservatives have used racial resentment to blind whites to the general benefit of high-quality public provisions for all students, including the benefit to themselves of Latinos and African Americans receiving equally good educations.

Breyer's opinion, though on the losing side, may eventually help refocus the outrage of whites, who have sought to use the courts for the benefit of their own children regardless of the effects on the children of others, refocus them on how the success of their society depends on the equal distribution of quality in education.


Thursday, July 19, 2007

Around the Nation: Districts Determined to Strive for Integration

As districts across the country ponder the likely effects of the decisions on their own programs, local media cover the often disheartened response. Fortunately, most communities are committed to maintaining plans unchanged, or modifying them in order to ensure that they are in compliance with the law. Below, some of the commentary in more detail:

-- The superintendent of Mobile County Schools in Alabama has said that he will not change the enrollment practices of the district’s six magnet schools, which selects a student body that is even divided between blacks and whites. It appears that the district remains under a federal court order. An editorial in the Decatur Daily posits that the PICS ruling will have a negative effect on Decatur City Schools once a federal court’s desegregation order is lifted.

-- Chris Heller, counsel for Little Rock School District in Arkansas -- synonymous with integration for many Americans -- stated that the district will have to change its assignment policies once a court desegregation order on Pulaski County is lifted.

-- In Berkeley, California, the district believes that PICS will have “no effect on their current system”, which does use race among other factors in prioritizing school choices, while the San Francisco school board is less certain about their own plan. Further analysis of the Berkeley and San Francisco plans, which many predict may be at issue in future test cases, can be found here and here. Attorneys for the Los Angeles Unified School District plan to defend its practice of using race as a factor in enrolling students at the district's 162 magnet programs after the ruling. Articles also note that the district remains under a 1981 desegregation order.

-- The Connecticut school districts of Stamford and Norwalk are reviewing the decision to judge whether it will be necessary to change their existing school-assignment policies, which make decisions based on many factors, including race. Meanwhile, desegregation efforts in Hartford will not likely be affected, as students' area of residence, rather than race, is determinative of school assignment.

-- Broward and Miami-Dade public schools in Florida do not use race in student assignment, and therefore will likely be unaffected by the decision. Lee County, which was released from a court-ordered desegregation plan in 2004, will also be unaffected. An article about Hillsborough County, in the same position as Lee, notes that since the county abandoned its efforts, dramatic resegregation has occurred. Officials in Volusia County are less certain, as in their program some minority neighborhoods outside school boundaries are included to achieve a racial balance. Officials in Pinellas County, designing a new student assignment plan, will assign students based on their location rather than race.

-- Sam Harben, an attorney who represents some Georgia school districts, stated that some magnet programs may be in jeopardy. Several districts under court orders, however, such as Richmond County, and others with more nuanced and comprehensive plans, such as Muscogee County, will not be affected.

-- Six Iowa districts (Des Moines, Davenport, Burlington, Waterloo, Postville and West Liberty) currently use students’ race to determine whether they can open-enroll into a school or district as a result of the 1976 agreement with the U.S. Office of Civil Rights. These restrictions will probably be loosened.

-- Stephen Katz, counsel for Rockford School Board, in Illinois, believes that the ruling should be of no consequence for the district, as their new system (since 2002) uses socioeconomic status and not race as a deciding factor for school assignment.

-- Since the 1990s, the Topeka, Kansas, school district has permitted students to transfer from their neighborhood schools to others when it helps improve racial diversity. It also built three elementary ‘magnet’ schools to attract students from across the city. Officials believe that that race can no longer be “a deciding factor” in school assignment. Wichita does not plan to alter its racial diversity program, since it is the result of a 1971 agreement with the Office of Civil Rights. District officials will meet again with OCR in August. Manhattan, KS, which uses SES rather than race to determine school district boundaries, will be unaffected.

-- Jefferson County Public Schools in Louisville, Kentucky, plan to continue with their current school assignments for the upcoming school year, despite threats from Teddy Gordon, counsel for plaintiff, of further legal action if the school continues to use their race-based selection system. One JCPS school board member states that the district may include socioeconomic status in future as a result of the PICS ruling. Superintendents in Hardin County, KY, said that their schools would not be affected, as they use only location and not race as a factor for school assignment.

-- District official James Easton believes that the decision will not have a negative impact on schools in Acadiana, a region of Louisiana comprising 22 of the state’s 66 parishes, but believes there may be a change in future enrollment practices. In Lafayette Parish, schools of choice and majority-to-minority transfers both use race as a factor in determining student assignments, and the plan may need to be modified.

-- Attorneys for plaintiff in a suit against a voluntary desegregation plan in Lynn, Massachusetts (a case which the Supreme Court declined to hear two years ago) are now asking a federal court to end the practice, citing the PICS decision. Twenty-two school districts in Massachusetts have state-approved programs to fix racial imbalances, including Springfield, Holyoke and Northampton, many of which are now in limbo. Also in jeopardy may be the historical Metropolitan Council for Educational Opportunity (METCO), which has bused minority students to affluent suburban schools since 1966. School officials said the effect of the high court's ruling in Massachusetts would depend on the specifics of each school system's plan. The state Department of Education approves the plans, and Education Commissioner David Driscoll said yesterday that he would adjust them as needed.

-- In St. Louis, Missouri, the court-approved Desegregation Program appears beyond the reach of the recent decisions. Unlike both Louisville and Seattle, there has never been a decision that said the St. Louis school district had eliminated segregation.

-- The superintendent of schools in Winston-Salem/Forsyth County, North Carolina, says that the school system will not be affected by the ruling, as it has not used race as a factor in student assignment in recent years. In Durham, geographical location is the only factor used for school placement purposes.

-- In Nebraska, Omaha Public Schools uses a program based on socioeconomic status and location rather than race; a school attorney has said that the decision will have little impact on the district's existing voluntary student assignment plan.

-- The New Hampshire deputy commissioner of education says that the impact of the decision is minimal in New Hampshire due to the state’s low rate of diversity, with 98 percent of students being white.

-- Several New Jersey districts continue to review PICS to determine its effect on their desegregation policies. McNair Academic High School, a magnet school in Jersey City, currently does use race as an important factor in accepting students, as it aims for an even number of black, white, and Hispanic students. Dwight-Morrow High School in Englewood, NJ, uses a system of specialized academies designed to draw students of all races from across the county after a court-ordered desegregation. Teaneck Township, the first school district in the nation to voluntarily integrate without a court order, will probably be unaffected, as the district uses “boundaries” to achieve integration rather than students’ races. Montclair County officials are still unsure of the effect on their magnet school system; but since Montclair is court-ordered to maintain racial diversity in its schools, the effect should be minimal. The district is considering economic alternatives to replace the program if necessary. Also at issue is the predominantly white town of North Haledon and its effort to leave Manchester Regional High School, which the NJ Supreme Court denied in 2004, saying it would create an unacceptable racial imbalance at the high school. A lawyer for North Haledon said previously the U.S. Supreme Court's decision would not override the state court, but the ruling is now being reviewed by the district.

-- In New York, Rochester’s Urban-Suburban Interdistrict Transfer Program may be threatened, but some say the program is having only marginal success, leaving Rochester schools among the most racially segregated schools in America. Officials in White Plains School District have asserted that their school choice program was not invalidated by the PICS decision, as race is a factor but not the sole factor in determining school placement. Buffalo Public Schools, which do not assign students to schools based on race, will be unaffected.

-- Officials in Shaker Heights, Ohio, stated that the district no longer assigns students based on race and only on place of residence. A race-based placement program that had been “a national model for voluntary integration” is no longer in use. Columbus district officials state that the decision will not affect Columbus Public Schools, as they discontinued using race as a factor in school choice four years ago.

-- Officials in South Carolina stated that the decision likely will have no effect on the Beaufort County School District because the district doesn't use race as a qualifying factor when assigning students to schools.

-- The superintendent of Jackson-Madison County in Tennessee said that she is currently unsure of the effect of PICS on her district, which has been under a court desegregation order for 44 years.

-- In the Washington, D.C., area, some districts had already modified their plans before the decisions. Montgomery County has not considered race in assigning students to schools since 2000, when the U.S. Court of Appeals for the 4th Circuit declared that the school system's race-based student transfer policy was unconstitutional. Arlington County school officials no longer give extra credit to minorities when deciding admission to the popular Arlington Traditional Elementary School.

-- In Seattle, the possibility of replacing their current plan with one that considers income rather than race is being considered.

-- A spokesman for the Wisconsin Superintendent of Public Instruction stated that the department was awaiting a review of the PICS ruling before drawing conclusions about the effects. Superintendent of Madison Public Schools Art Rainwater said that “none of the district's school-assignment policies would be directly affected by Thursday's decision because the district relies upon criteria other than race” and especially socioeconomic status when making such decisions. Schools in La Crosse also use socioeconomic status, and will therefore be unaffected.


Monday, July 16, 2007

Guest Blogger: How 6 Year Olds Do (or Don't) See Color

by H. Rebecca Eaton, New York City Elementary School Teacher

What’s worth saying about race in my first grade classroom is what it isn’t. Race is not an object of discussion or discord in the classroom. Who shares magic markers is; and what matters is who plays with whom on the playground.

I have 23 six and seven year olds in my public school classroom overlooking West 77th Street. About half our kids are of Latino, African-American, and Asian descent—and among these are countless permutations: two children have one white and one black parent, one has a Japanese mother and German father, one black child has parents from the Caribbean. Half the class is Caucasian, some first generation immigrants, and some with grandparents born and raised in New York. Perhaps such a mix of children is rare in New York City, or rare anywhere in the Unites States, for that matter. But what seems rare to me is the amount to which race doesn’t matter in my classroom.

The kids play together and help each other with spelling words or ideas for stories. My students get upset when one child refuses to share the only light blue marker at the table; they argue with each other about what to build in the blocks area, and when someone knocks it down against the others’ will. Hurtful words are “I don’t want to be your friend anymore,” and these occur between some children and not others, regardless of race.

When I went to Hammond Elementary School, a yellow bus picked me up and drove past cornfields, a dairy plant, and houses and townhouses surrounded by little yards. My classes were overwhelmingly white and Christian. I remember Sumitro, the only Indian child in my class, because he was the only child with parents from India, a very foreign seeming place at the time. My father came in and played dreidel with us before Hanukkah every year; that way kids would know what Judaism was.

In sixth grade I entered Hammond Middle School, where my elementary school joined with the kids from Laurel. The first apartment building I ever visited was in Laurel; the one friend I made from the other elementary school lived in one. Laurel was a lot more pavement and a lot less farmland. It was also a lot more black and brown and a lot less white. What I remember about those early middle school years is that the kids from Hammond stuck together and the kids from Laurel stuck together.

Was our self-segregation a result of our earlier, separate educations? I remember feeling a bit overwhelmed at the beginning of middle school. For one, there were just more kids and, maybe also, it was the fact that the kids from the other school looked different. No matter that my parents taught me to treat everyone the same, regardless of race or class: this didn’t change the fact that I had spent the formative years of my life playing, arguing, and learning with mostly white kids.

Children’s thoughts will always be shaped by and reflective of the greater society in which they live. And our society remains divided. But when my students play together, argue together, learn together, regardless of color, they are learning to function with people who look and come from very different places. To echo Langston Hughes’ words—For America to be America again, for it to be America to those for whom it never was, we need, desperately, to learn to live together in those early years, when we can learn to ignore the color codes that abound in society.


Sunday, July 15, 2007

School Diversity Based on Income Segregates Some

The New York Times analyzed integration plans in place in San Francisco, Raleigh, Wake County, and Cambridge, to determine whether such plans, which use socio-economic status as the primary measure of student integration, achieve racial diversity. The sad truth, according to Times reporters Jonathan Glater and Alan Finder, is that districts which implement income diversity plans instead of race based diversity plans often experience racial resegregation.

The article focuses on San Francisco, where "David Campos, the general counsel to the school district, said the resegregation was so disappointing that the school board might try to test whether Justice Anthony M. Kennedy’s opinion in the recent Supreme Court case left open the possibility of using race if other methods of integration fail.

“We stopped using race at some point,” Mr. Campos said. “And then for a number of years we have tried to use a number of race-neutral factors to achieve racial diversity, which methods haven’t worked. Should the board decide to use race, and they may or may not, we are a very good test case."


Wednesday, July 11, 2007

Transferring Up

In today's New York Times, bestselling education writer and fervent integration supporter Jonathan Kozol offers a suggestion for how to promote quality education for students in failing schools that has the added benefit of furthering integration. Encouraging Congress to beef up the transfer provisions for such students in the No Child Left Behind Act when NCLB is up for reauthorization later this year, Kozol writes of his proposed amendment:

"First, states should be required to ease transfers across district lines for children now in chronically low-performing schools.

Second, schools and districts must not be permitted to reject these students so long as they have space available in existing classrooms, which most suburban districts do.

Third, states must pay the added costs incurred by the receiving districts; they must not, however, compel hard-pressed urban schools to reimburse their wealthier suburban counterparts.

Fourth, states must pay for transportation.

Fifth, in order to ease the burden on states, Congress should create a federal fund to be used to underwrite some of the costs of complying with the law.

Sixth, Congress should enact specific fiscal penalties for states that drag their heels or defy the terms of this amendment altogether."


Tuesday, July 10, 2007

Schools and Integration: Picking Up the Pieces

In the Seattle Times, Larry Gossett and john a. powell wrote about the positive side of the Supreme Court's decision in the Seattle and Louisville cases -- namely that "for the first time in history, the majority of the court recognizes a compelling government interest not only in ending state-sponsored (de jure) segregation, as in Brown, or in pursuing diversity in higher education, as in the University of Michigan affirmative action case Grutter v. Bollinger, but also in remedying racial isolation, regardless of its cause."

Gossett and powell go on to state, "The majority of the court has now explicitly recognized the serious harms of racial isolation in our communities and classrooms. The court also recognizes the impact of these arrangements on the promise of liberty and equality on which the nation was founded.

It is imperative that policymakers and the public not misread this case and overlook the opportunities this unprecedented acknowledgement opens up to achieve integration in our schools and neighborhoods."


Friday, July 6, 2007

What Will We Tell Our Children?

By: Amy Stuart Wells

Amid the lawyers, policymakers and pundits debating the implications of Thursday’s U.S. Supreme Court ruling striking down the Louisville and Seattle voluntary school integration plans, came the soulful plea of an African-American mother. Interviewed on National Public Radio, Mary Myers of Louisville explained how the ruling against her local officials’ efforts to racially balance their schools may well jeopardize her two children’s school assignments and educational opportunities.

Ms. Myer’s children, ages 13 and 16, had benefited from the defeated desegregation plan because it had allowed them to attend racially diverse public schools outside of their community. Had they and their peers attended neighborhood schools, Ms. Myers noted, they would not have been exposed to people of different racial and cultural backgrounds and they would not be prepared for the incredibly diverse and global society they will soon inherit. When asked about her response to the decision, this 49-year-old mother sounded fed up: “Leave these children alone. Let them go to school together…. They have to go into the workforce and work together.”

What made the plea of this one mother so poignant in the midst of many legal arguments about what school districts can and cannot do in light of this complicated decision is that it came from her heart, it echoed the sentiments of millions of Americans, and it put the children and their experiences at the center of this controversy. Ms. Myers, who attended mostly segregated schools, could see the benefits of school desegregation first hand, and she knew the potential costs of such a ruling. “This country is on a bad road with this; This is a bad decision,” she said.

The decision clearly states that school districts cannot take individual students’ racial classifications into account when assigning them to schools. School officials can use other, generally less effective, measures to integrate their schools, however, including locating new school sites between racially distinct neighborhoods, redrawing school attendance zones (not an easy thing to do politically), or racially targeting recruitment of students or faculty to schools of choice. What the ruling means for Ms. Myers children or any of the other students in the estimated 1,000 school districts that use race-conscious policies to integrate their schools will be decided in the coming months. Some of them will be grandfathered and allowed to remain in their racially diverse schools until they graduate, but it seems likely that our schools will become more racially segregated, which goes against what millions of parents like Ms. Myers want.

In fact, Ms. Myer’s sentiment echoes that of the vast majority of parents in this country; 66% of whites and 80% of black parents say that educating their children in a racially diverse setting is either somewhat or very important. Their sentiments are backed by reams of social science research -- documented in more than 50 amicus briefs filed in these cases -- demonstrating the innumerable benefits of racial integration in public schools for students of all races.

In particular, research my colleagues and I have conducted on the long-term effects of school desegregation on the adults speaks to Ms. Myer’s central point. Since 2000, we have studied more than 300 graduates of 12 racially diverse public high schools across the country, including six schools in Louisville and Seattle. We interviewed black, white, Latino and Asian adults who graduated from these schools in the early to mid-1980s.

Now middle aged with work experience and children of their own, these graduates were not shy about sharing their stories with us. There were hardships – some long bus rides, some racial tension, some re-segregation within diverse schools in both the classrooms and lunchrooms, and some misunderstandings that were not resolved by educators who were often trying to be “colorblind” while teaching students for whom race and inequality were very salient. But despite these hardships, all but two of the graduates we interviewed said that attending a racially diverse school was worth any headaches or inconveniences and that if they could do it over again, they definitely would. In fact, the majority of these graduates said that attending these diverse public schools was one of the most valuable experiences of their lives.

When asked why their school integration experiences were so valuable, these graduates said first and foremost that it made them far more comfortable around people who are different in terms of race or ethnicity – a skill they find infinitely helpful as adults. As a white woman who graduated from Garfield High School in Seattle and now works as a social worker explained, “I definitely think that being at Garfield, in a very racially diverse school, impacted my whole sort of worldview, and it’s something I look back at all the time, and I feel like it gave me lots of benefits that people I know who were in… racially less diverse schools don’t have.”

A white male graduate of Franklin High School in Seattle explained that in his job with a global corporation he manages workers in 60 different countries. He travels to these different countries and supervises and trains this workforce. Even though his high school, with its mix of Asians, blacks and whites, was not as diverse as the mix of people now works with, he said his schooling experience provided a “step down that path of being comfortable with people of a variety of races.”

Unfortunately, fewer children will have the opportunities that these graduates had. We know from our history and from research on white flight and resegregation that the more limited measures that districts can now use to diversify their schools will likely accomplish less than Louisville and Seattle’s more pro-active choice-based assignment plans, which assured all students had choice and no school was too distinct from the demographics of the districts as a whole. Such plans help to integrate all schools across a district and thus create greater equality and stability. But they are now outlawed, and we need to think of what we will tell our children – Ms. Myer’s, mine, yours – when they ask, as my 8-year-old did on June 28th, what this decision means for them and their diverse public schools. Perhaps Justice Roberts has an answer for them. I am speechless.


Voluntary Desegregation Plan Challenged in Lynn

On Tuesday, lawyers challenging the voluntary desegregation plan in Lynn, Massachusetts filed papers asking the U.S. District Court to issue a new decision in light of the Supreme Court's ruling in Parents Involved in Community Schools. The First Circuit Court of Appeals upheld the Lynn plan two years ago, and the Supreme Court denied the plaintiff's petition for review, even after it had accepted the Seattle and Louisville cases. Both SCOTUSblog and the Boston Globe have detailed stories on the new challenge.


Monday, July 2, 2007

The Lawyers who Represented Black Schoolchildren in Brown React to the Chief' Justice's Interpretation of their Words

On page 40 of his opinion in the Seattle and Louisville school cases, Chief Justice Roberts quotes directly from the 1952 oral argument transcript in Brown v. Board of Education to support his notion that the Constitution is colorblind:

"As counsel who appeared before this Court for the plaintiffs in Brown put it: ‘We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause. . .to use race as a factor in affording educational opportunities among its citizens.’ There is no ambiguity in that statement."

Don’t tell that to the actual lawyers who represented the black schoolchildren in Brown. In response to the ruling, these lawyers have stated that the Chief Justice has, “misinterpreted the positions they had taken in the litigation [and] misunderstood the true meaning of Brown." The New York Times, in a June 29 article entitled, “The Same Worlds, but Differing Views,” gathered these responses from the Brown lawyers themselves:

-Robert L. Carter, the lawyer who Roberts quotes directly (and now a 90-year-old senior federal judge in Manhattan) explains how the Chief Justice distorted the purpose of and historical context behind his words:

"All that race was used for at that point in time [the 1950s] was to deny equal opportunity to black people. It’s to stand that argument on its head to use race the way they use is now."

-Columbia Professor Jack Greenberg, who worked on the Brown case for the plaintiffs, called Roberts’ interpretation “preposterous.” He explained that,

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people. They said you can’t consider race, but that’s how race was being used. . . Following Brown, there was massive resistance. This is essentially the rebirth of massive resistance in more acceptable form.”

-William T. Coleman Jr., a lawyer in Brown who now works as a lawyer in Washington, explained that,

“The majority opinion is 100 percent wrong. It’s dirty pool to say that the people Brown was supposed to protect are the people it’s now not going to protect.”


Two Approaches to Equal Educational Opportunity: Integration and School Funding

In a June 30 New York Times article, entitled, "Money, Not Race, Fuels New Push to Buoy Schools" the longstanding conversation about racial integration and school finance litigation as dual approaches to increasing educational equity continues.

Because "fiscal-equity litigation and integration need not be either-or propositions," the real question is why this 'debate' exists in the first place. Advocates of both integration and school finance are working to increase educational equity and, as the Supreme Court opinion highlights, there are powerful forces working to undermine this goal. While it is true that the legal "tools to address racial inequities" are dwindling, education lawyers from both camps must nevertheless work in tandem towards their shared goal. American schools are segregated and American schools are underfunded. They need all the help they can get.


Op-Ed Roundup

The op-ed pieces in this weekend's newspapers reveal the national debate surrounding the Supreme Court's decision.

Bruce Shapiro in The Nation: Supremely Bad Decisions
Senator Ted Kennedy in the Seattle Post-Intelligencer:
Still Seeking Equality
Kansas City Star: Supreme Court Turns Its Back on the promise of Brown
Wall Street Journal: Race and the Roberts Court
New York Post: Beyond Brown -- Race Blind Roads to Diversity
Boston Globe: Still Unequal
Benjamin Wittes in The New Republic: Multiple Choice--Anthony Kennedy Punts on the Question of School Diversity
Newsday: Regrettable Decision
Ellis Cose in Newsweek: A Sliver of Hope


News Roundup: School Reactions

School districts around the country are appropriately weighing the legal implications of the Supreme Court's ruling in the Seattle and Louisville cases on Thursday. While many districts appear confident that the rulings will have little effect, as the superintendant of Norwalk, Conneticut, stated, "The only thing I can say for sure is that I can't say anything for sure."

See more school district reactions after the jump.

Madison, WI
Columbus, GA
Little Rock, AK
Chicago, IL
Mobile, AL
Los Angeles, CA
New York, NY
Philadelphia, PA
Newport News, VA
Wichita, KS
Berkley, CA
Stamford, CT
Seattle, WA
Worcester, MA
San Francisco, CA
Knoxville, TN


Guest Blogger: The New Four Horsemen, Circumruling Precedent

by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford University

The two big social issues that the Supreme Court confronted this Term were abortion, in Carhart v. Gonzales (Carhart II) and school integration in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (which decided cases from both Seattle and Louisville). In both cases, it seems clear that the replacement of Justice O’Connor by Justice Alito made a decisive difference: Carhart II “circumruled” (the Court didn’t outright overrule) Stenberg v. Carhart, in which Justice O’Connor was the decisive fifth vote, on the question whether the government can ban a particular abortion procedure without providing an exception for cases where the pregnant woman? health is at stake, and to some extent Planned Parenthood v. Casey (in which Justice O’Connor was in the three-Justice bloc that determined the outcome), on the way in which the undue burden standard is to be used.

Parents Involved circumruled School Committee of Boston v. Board of Education and Swann v. Charlotte-Mecklenburg -- two venerable school desegregation precedents -- as well as Grutter v. Bollinger, the Michigan race-conscious admissions case, in which Justice O'Connor was again the crucial fifth vote. (One snarky aside: Parents Involved reads Grutter extremely narrowly, as a case about "diversity in higher education" -- one wonders, after the Chief Justice is done explaining an opinion he almost certainly would not have joined, and which the four remaining Justices who did join read in an entirely different way, why he didn't confine it further to "diversity at the University of Michigan Law School." According to the Chief Justice, "universities occupy a special niche in our constitutional tradition" due to the "expansive freedoms of speech and thought associated with the university environment." By contrast, in Morse v. Frederick, decided earlier this Term, the Court circumruled a series of cases recognizing that public school students also enjoy freedom of speech.)

Rather than rehash points that I imagine scores of other folks will be making, I want to focus on an additional similarity between Carhart II and Parents Involved before turning to a more specific doctrinal point: the utter gulf in language between the two sets of Justices. In Carhart II, the majority repeatedly refers to the women involved as "mothers," the fetus as the "unborn child," and the doctors as "abortionists." By contrast, the dissenters use quite different language. Similarly, in Parents Involved, the plurality repeatedly refers to the school boards' goal as "racial balancing" -- with Justice Thomas going so far at one point as calling it "forced racial mixing" (which sounds far more like the Jim Crow era segregationists than anything modern -- as if any student had a legally cognizable interest in attending a monoracial school). By contrast, Justice Kennedy and the dissenters use phrases like "working together," "integration," and "desegregation." As for differences between the two cases, why were the New Four Horsemen content in Carhart II to resolve ostensible uncertainty in the medical community over the health imperatives in favor of the government (in fact, the consensus cut entirely against the purported congressional ? findings?) and against the substantive due process rights of the women involved while in Parents Involved Justice Thomas goes precisely the opposite way, claiming that because social scientists ostensibly disagree on the educational benefits of integrated educations, the government has no compelling interest that can override a student's interest in race-blind school assignments? Could it have more to do with values that with doctrinal frameworks?

The pivotal vote in Parents Involved is, of course, Justice Kennedy's. And here, too, there's a similarity to Carhart II. In both cases, Justice Kennedy objects not so much to ends, but to means. His opinion for the Court in Carhart II does not challenge a woman's right to decide for herself whether to terminate a pregnancy, but he objects to her undergoing a procedure that disgusts him. He is confident -- without much empirical support -- that there are alternative procedures that would protect both the woman?s right to choose and the government's interest in preserving a particular moral tone. Similarly, in Parents Involved, Justice Kennedy's concurrence and concurrence in the judgment accepts -- indeed, celebrates and commits him to respecting -- the communities' desire to achieve racially integrated schools. He objects instead to the means they have chosen: race-conscious assignment of a relatively few students to attain, or maintain, integrated schools. Again he is confident -- without much empirical support -- that equally race-conscious, but less explicit, action could produce the same result.

This leads to my doctrinal point. The core of Justice Kennedy's opinion is his distinction between school board actions that look at individual students and equally race-conscious, integration-pursuing actions that operate on a more wholesale level. The critical passage appears on pages 8-9 of the slip opinion:

"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 by race, so it is unlikely any of them would demand strict scrutiny to be found permissible."

Many folks, I imagine, will fasten on this passage as a roadmap for continued efforts to dismantle segregated schools and produce what Green so aptly called "just schools." Of course, we should do that. Justice Kennedy has rejected the enterprise of dismantling the ideal of integration or barring the government from pursuing equality through inclusion. Here, as with Justice Powell and Justice O'Connor before him, Justice Kennedy leaves open a variety of mechanisms for pursuing desegregation, and we need to assist the public, school boards, and lower courts to develop and reinforce these strategies.

I want to focus on something else: this passage illustrates why the entire enterprise of strict judicial scrutiny for racial classifications has turned out badly. As I've pointed out in earlier work, strict scrutiny was the consequence, not the cause, of the Warren Court's great antidiscrimination decisions. It wasn't until 1964, in McLaughlin v. Florida, that the Court applied what's come to be known as strict scrutiny and by then, the Court had essentially finished the job of eradicating explicit racial classifications. The reason for this is that the Court rejected the clearly discriminatory purposes behind the explicit racial classifications it confronted in the 1960's. Does anyone seriously think that Virginia's criminalization of interracial marriage would have survived rationality review had that been used in Loving? Indeed, the only case I can think of where strict scrutiny has made a difference in protecting the rights of African Americans is the recent prison segregation case, Johnson v. California, and there Justices Scalia and Thomas would not have applied strict scrutiny because their commitment to deference to prison officials (who somehow seem more worthy of such respect than democratically elected school boards) outweighed their commitment to a color-blind Constitution.

Strict scrutiny has been essentially beside the point for the kind of equal protection cases African Americans and other persons of color have brought since its adoption. These cases usually involve challenges to facially neutral laws -- for example, the use of admissions tests that screen out minority applicants or the staggering disparities in criminal sentencing. In such cases, to trigger strict scrutiny, under Feeney v. Personnel Administrator of Massachusetts, plaintiffs must first prove that the government "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." But the Supreme Court has repeatedly recognized that "if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate, -- let alone a compelling, 'governmental interest.' " Thus, proof of an invidious motive by itself strips a law of its presumptive legitimacy. Once the plaintiff has shown a discriminatory purpose, the burden shifts to the defendants to prove that the law would have been enacted even without that purpose. As a practical matter, though, proof of an invidious intent to injure blacks or Hispanics is the ballgame. Few courts, having found that sort of malevolence, are likely to uphold a law anyway.

On the other hand, strict scrutiny has proved invaluable in the assault on race-conscious affirmative action. That is perhaps what drives Justice Stevens in his dissent to reiterate his 'one equal protection clause' theory -- a theory that Justice Marshall, who must be spinning in his grave at the misappropriation and willful misreading of his arguments in Brown, also adopted. And it may also explain Justice Breyer's reshaping, in the principal dissent, of what strict scrutiny ought to mean in context.

Oh, everything has been turned upside down, when Justice Thomas can write that "if our history has taught us anything, it has taught us to beware of elites bearing racial theories," seeing popularly elected, community based schools boards as the 'elite' and casting himself and the other New Four Horseman as the true representatives of the people. But as the Chief Justice says "history will be heard." And it will not be kind to Parents Involved.


Presidential Candidates Release Statements in Response to Court's Decision

The following Presidential Candidates (Democrat and Republican) have released statements on last week's ruling:

Hillary Clinton
Chris Dodd
John Edwards
Barack Obama

Click here for a link to Tavis Smiley's audio from the Democratic presidential debate last Thursday. The debate opened with a question on race and the school cases.


The Congressional Black Caucus Denounces Supreme Court Opinion in School Race Cases

On June 28, 2007, Congresswoman Carolyn C. Kilpatrick (D-MI), Chairwoman of the Congressional Black Caucus (CBC), released the following statement on the Supreme Court ruling:

"Today, the Supreme Court rejected reason, rationality and respect for all Americans in its decision limiting access to education for all Americans. In rejecting school diversity plans that made race a factor - but not the sole or most important factor - in Louisville and Seattle, the Court tears at the very fabric of unity in our nation. We can, and we must, do better for our children and grandchildren.

As a former teacher, a mother, and a grandmother, I understand the value of education. Access to education is one of our most sacred privileges. Education is the linchpin of achievement, success and stability in our country. If you were not born of privilege, education and hard work can earn you privilege. This heinous ruling not only topples more than half a century of progress achieved under the Brown v. the Topeka, Kansas Board of Education decision, it encourages separation and segregation in private industry and government as well as in education.

We applaud the remarks of Supreme Court Justice Breyer. Justice Breyer, in his dissenting opinion, said that "this is a decision that the Court and the Nation will come to regret." The Congressional Black Caucus will continue to fight for quality education for all children; will confront the crises posed to us by the Supreme Court ruling, and will continue the legacy established by NAACP attorney and Supreme Court Justice Thurgood Marshall to ensure that all American children attend and receive a quality education.

The Congressional Black Caucus, made up of 42 Members, representing more than 40 million Americans from 26 states, will continue the legacy and ensure fairness, justice and equality for all."


National Academy of Education Issues Report on Race-Conscious Policies for Assigning Students to Schools

The National Academy of Education issued a new report following the Supreme Court's decision. The report, entitled "Race-Conscious Policies for Assigning Students to Schools: Social Science Research and the Supreme Court Cases" summarizes and analyzes the existing body of research related to race-conscious student assignment policies, building upon the amicus curiae (friend of the court) briefs filed with the Supreme Court in support of both petitioners and respondents. The Academy found that 27 of the 64 amicus briefs filed in the two cases contained substantial discussions of social science research.

The National Academy of Education "advances the highest quality education research and its use in policy formulation and practice. Founded in 1965, the Academy consists of up to two hundred U.S. members and up to twenty-five foreign associates who are elected on the basis of outstanding scholarship or contributions to education. Since its establishment, the Academy has sponsored a variety of commissions and study panels that have published influential proceedings and reports." More information on the Academy can be found on its website at


Getting to Work to Achieve Equal Educational Opportunity

Lia Epperson, Assistant Professor at Santa Clara University School of Law, urges "schools, parents, community leaders and policy-makers" to "take your marching orders and get to work. Start by using the tools outlined by Justice Kennedy and make real the promise of Brown to achieve true equal educational opportunity." Her op-ed, entitled Equal Educational Opportunity - We're Not There Yet, was published today in the San Jose Mercury News.