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.
Friday, July 20, 2007
Guest Blogger: The Beginning of the End for Conservative Race Theory
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."