Monday, July 2, 2007

Opinion: School Diversity, Another Way

After generating months of anxiety among both proponents and opponents
of public-school integration, the U.S. Supreme Court, in a predictably
close 5-4 decision, ruled that the use of race in student-assignment
policies by the Seattle and Louisville, Ky., school districts violated
the rights of the white petitioners whose children were denied admission
to the schools of their choice. The decision covered Parents Involved in
Community Schools v. Seattle School District No. 1 and Meredith v.
Jefferson County Board of Education. 

Actually, the suspense in the liberal camp was generated more by the
hope that springs eternal than by a willingness to recognize that a
majority of the current court is determined to strike down any laws or
policies intended to remedy past and continuing racial discrimination.
Its weapon of choice is the legal standard of strict scrutiny. Initially
developed by the court in the late 1930s to authorize closer monitoring
of government policies challenged for denying equal protection and due
process to members of minority groups, it has been restructured during
the Rehnquist and Roberts courts to strike down affirmative-action

In its new guise, the standard of strict scrutiny offers little support
for black people seeking to challenge racially discriminatory practices
that do not overtly mention race. But it enables any white person to
challenge policies intended to remedy past discrimination, because those
policies are typically couched in racial terms. Application of that
standard dooms even modest programs to achieve racial diversity in
school systems where neighborhood housing patterns are racially
segregated, usually as a result of discrimination that is easy to
recognize but hard to prove in courts. 

The Seattle and Louisville decision places in jeopardy similar plans in
use by school districts across the country. Given the nation's racial
history, it is hypocritical for Chief Justice John G. Roberts Jr. to
assert that "the way to stop discrimination on the basis of race is to
stop discriminating on the basis of race." The suggestion cruelly
conflates minor cures with the major disease. Were he a medical doctor,
Roberts would ban the use of vaccines that are fashioned from the
disease-causing virus. 

Writing the majority opinion, Roberts chose to ignore continuing
resistance to school desegregation. Yet it was the pandering to that
resistance that helped put those who appointed him in office. And it was
precisely that resistance, in the decades following the landmark Brown
v. Board of Education of Topeka decision, which ruled that public
schools could not be separate but equal, that led courts to acknowledge
that using racial-balance remedies to comply with Brown could not work
-- given the willingness of so many white people to leave integrated

Justice Stephen G. Breyer's dissent properly condemns the court for
undermining the half-century-old promise of integrated primary and
secondary schools proclaimed in Brown. His long and ringing dissent may
become the elegy of the school-desegregation era. 

Despite the majority's efforts to distinguish the public-school case
from the four-year-old decision in Grutter v. Bollinger, which narrowly
approved some use of race at the college level, it is clear that, in the
majority's view, all school assignments, however well-intended, must be
colorblind. Given the language in the majority opinion, it is not
difficult to predict that, were it heard today, Grutter might well be
decided differently. 

We should not forget that the Grutter decision, while hailed by its
liberal supporters, was endangered from the start. Justice Sandra Day
O'Connor provided the swing vote by describing in her majority opinion
the law school's admission process as a "highly individualized, holistic
review of each applicant's file, giving serious consideration to all the
ways an applicant might contribute to a diverse educational
environment." In that process, she found, race counts as a factor, but
is not used in a "mechanical way." 

While O'Connor, heavily influenced by the multitude of amicus curiae
("friend of the court") briefs urging the value of racial diversity in
corporate and military life, provided the fifth vote in the law-school
case, her departure from her general opposition to affirmative-action
plans prompted strongly worded refutation by the four dissenters that
very likely deterred university legal staff members from considering
going forward with minority-recruitment-and-admission efforts. 

Such efforts were discouraged further in Michigan last year when the
state's voters approved a proposition barring affirmative action in
public education, employment, or contracting. The proposal gained a
58-percent majority, but more significantly, almost two-thirds of white
voters supported ending affirmative action, while only about one in
seven black voters approved its elimination. Public opposition to any
form of affirmative action remains so strong that, had the court
approved the voluntary plans in the current case, the
anti-affirmative-action groups would probably have sought voter approval
for barriers in the states of Washington and Kentucky. 

Quite ready to "stay the course" against manifestations of public
opposition, civil-rights groups see a basis for continuing the
school-integration fight in Justice Anthony M. Kennedy's concurring
opinion. Kennedy suggested that, while the plans before the court were
invalid, some future school-assignment policies might pass judicial
muster by showing a compelling state interest for utilizing race as a
component. Given the strength of judicial and popular opposition,
Kennedy's observation is a slim reed on which to maintain the
decades-long commitment to the vision of Brown. 

The resilience of civil-rights groups is praiseworthy, but future
litigation, even if successful, is not going to alter the fact that most
poor children, regardless of race, are attending schools that are not
meeting their educational needs. Their dire condition, and that of the
schools they attend, is not solely the result of an insensitive Supreme
Court majority quite ready to manipulate precedent to stifle
well-intended racial-diversity plans. The plain fact is that a great
many white Americans, including many with otherwise liberal views on
race, do not want their offspring attending schools with more than a
token number of black and Latino children. Whatever their status, they
do not wish to be burdened by efforts to correct the results of racial
discrimination that they do not believe they caused. Their opposition
may not be as violent or as vast as it was during the early years after
the Brown decision, but it is widespread, deeply felt, and if history is
any indication, not likely to change any time soon. 

We can acknowledge, even applaud, the many schools across the country
where racially integrated student populations embody the goal that those
of us who labored long years in the vineyards of school-desegregation
litigation hoped would be the norm in our schools at this point. 

It is painful for many of us, but it is time to acknowledge that racial
integration as the primary vehicle for providing effective schooling for
black and Latino children has run its course. Where it is working, or
has a real chance to work, it should continue, but for the millions of
black and Latino children living in areas that are as racially isolated
in fact as they once were by law, it is time to look elsewhere. 

There are a growing number of public schools and after-school programs
that instill motivation in students by emphasizing developing pride and
self-assurance and that have proved successful. One of those is the
Frederick Douglass Charter School in Harlem, N.Y. The school is
considered to be one of the top public schools in the country, based on
its course offerings and student performances on Advanced Placement
examinations. Over the last few years, its population has been more than
80 percent African-American and more than 14 percent Hispanic. In terms
of the economic backgrounds of the students, a vast majority are
eligible for free lunches. Yet the students manage to succeed. 

Then there is the African American Academy, in Seattle, cited by
Justice Clarence Thomas as proof that black children do not need
integration to learn. Thomas states the obvious to prove the impossible.
The fact that black children can learn in all-black school settings does
not mean that many could not learn in integrated settings. That said,
the academy, 99-percent nonwhite, with funds from the Seattle school
board, has, in under two decades, become a public-school model. The gap
in achievement with white schools is closing, a sign that the school is
meeting a major challenge, since 85 percent of its students are eligible
for free- and reduced-lunches. According to a report a few years ago,
only 19 percent of the students lived with both parents, the lowest rate
in the district; and, the school estimated, 40 percent of the students
live with relatives or foster parents. 

After-school and supplementary programs including the All Stars
Project, and BELL (Building Educational Leaders for Life), are only a
few of the many achieving academic success for children whose
educational outlooks are poor or nonexistent. Civil-rights groups should
recognize and support such schools and programs, not as a surrender of
their integration goals, but as an acknowledgment that flexibility is
needed in fulfilling the schooling needs of black and Latino children in
today's conservative political landscape. 

As to higher education, if the prognosis for maintaining race-conscious
admissions programs is as grim as I believe, it too needs to consider
supporting the kinds of school programs I have described. It cannot
afford to stick its nose in the sand. Today's school children are
tomorrow's college students. 

Derrick Bell is a visiting professor of law at New York University and
author of several books on race and the law, including Silent Covenants:
Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform
(Oxford University Press, 2004). During the 1960s, he served as a lawyer
with the NAACP Legal Defense Fund and supervised 300
school-desegregation cases