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Separate But "Equal": Banning School Desegregation Policies

A series of responses from policymakers, education experts and law experts on the recent Supreme Cou

In June, the Supreme Court ruled 5-4 in the cases Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education that race may not be used as a criterion for desegregating schools. Experts fear that the decisions will make long-established busing programs, magnet schools, charter schools and other initiatives aimed at increasing student diversity and educational opportunity unconstitutional.

Senior Editor Gary Stager has collected the views of leading educators, policy-makers and law experts to begin a dialogue on these critical issues. Let us know how this ruling will impact your district by contacting

Roadblocks to Racial Diversity

Michael Casserly

Executive Director, Council of the Great City Schools

Today's troubling decision will make it harder for these and other cities to maintain an integrated student body, prevent racial resegregation, improve academic performance, and build a more equitable and competitive America. The ruling now forbids school systems across the nation from using the same strategies that the federal courts once ordered them to implement.

The council is heartened that a majority of the court reaffirms that there is a compelling interest in achieving diversity in public school classrooms, and that race-conscious strategies can be consistent with the Constitution. As a practical matter, however, the court has left school districts across the land with few viable alternatives for using race in pursuit of that interest. School districts now have even fewer options to achieve the racial diversity that was possible before the decision.

Therefore, the council decries the court's ruling in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education as a deliberate and pronounced step backwards in the nation's long march toward racial equality. And the council views the Bush administration's stance in promoting this outcome as deplorable.

Entitlement by Color or Citizenship?

Jesse L. Jackson Jr.

Congressman, Second Congressional District of Illinois

In their recent ruling on school racial integration policies, the Supreme Court could have helped clarify when, where and how public school systems can use race in determining which students get limited spots in competitive programs. Instead, they have created much more confusion, frustration and anger.

I believe history will demonstrate that this court's alleged "colorblind" approach will bring us back full circle to Plessy v. Ferguson's 1896 principle that "we can have separate but equal" schools, which sustained the opposite result for 58 years.

Brown overturned Plessy on both philosophical and practical grounds. Philosophically, if schools are truly equal, why should they be separate? But practically, history has shown that if public schools are separate they will not be equal.

Seattle will perpetuate and escalate- not alleviate-our current separate and unequal American educational system.

I'm not naive enough to believe the court is colorblind any more than I believe it's politically neutral. But I do believe that how an issue is framed can help us achieve a more equal and just society.

In terms of framing the issue, is "racial equality" really the American goal?

Today's conventional wisdom consistently appeals to racial and gender equality, i.e., affirmative action is necessary because of historic negative action. And that's true, but isn't the real goal "equality for all citizens" regardless of race, ethnicity, gender, sexual orientation, handicap or religion? Are we entitled to equality and a just society on the basis of color (or gender or handicap) or on the basis of our U.S. citizenship? If we are entitled to equal rights and protections under the law as citizens, then equality based on citizenship- not race, gender, handicap or class-is the real goal and the better way of framing the issue.

In Rodriguez (1973) the Supreme Court ruled that the Constitution does not grant a citizenship right to an education. But if we add an education amendment to the U.S. Constitution that guarantees a citizenship right to a public education of equal high quality-which obligates Congress to structure and fund such a system, forcing the courts to deal with this specific language-then we will no longer be arguing over the rights of black and brown children, but over the right of every American student as a citizen to be guaranteed an equal high quality public educational opportunity.

Concurring with the 5-4 decision, Justice Anthony Kennedy repeated the usual rhetoric by saying the nation "has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all its children."

I agree with Justice Kennedy's dream, but I wish he'd wake up and join me in making it a reality. The decision he agreed with does nothing to get us there.

Transferring Up

Jonathan Kozol

Veteran educator and author This op-ed piece ran in The New York Times in July.

The Supreme Court ruling on school integration came as a blow to those watching the gradual dismantling of Brown v. Board of Education with despair.

There is, however, some cause for hope. In his concurrence, Justice Anthony Kennedy opened up a new avenue for educational justice by contending that other methods of achieving integration-like revising school attendance zones-are constitutionally permissible so long as they do not sort and label individual children by race.

Congress has an opportunity to take advantage of the opening created by Justice Kennedy later this year when it reauthorizes the federal No Child Left Behind act. The law gives children the right to transfer from a low-performing school to a high-performing school if the low-performing school has failed to demonstrate adequate improvement two years after being warned of its shortcomings.

Unfortunately, the transfer provision has until now been a bust. Less than 3 percent of eligible children have been able to transfer, in part because of the scarcity of space in high-performing schools within most urban districts. Although the law does not prohibit transfers between urban and suburban schools, it offers no inducements to the states to make this possible.

Democrats in the Senate should therefore introduce an amendment to authorize and make easier cross-district transfers- not on a specifically race-conscious basis, but solely to fulfill the professed intention of the law.

There is obvious urgency to this. At present, black children are more segregated in their public schools than at any time since 1968. In the inner-city schools I visit, minority children typically represent 95 percent to 99 percent of class enrollment. Not surprisingly, minority parents overwhelmingly support cross-district transfers.

Senator Edward M. Kennedy, whose Education Committee will lead the way in reauthorizing the education law, should develop an amendment to promote cross-district transfers.

If Mr. Kennedy supported this proposition he could deal a mighty blow to resurgent racial concentration-without introducing racial terminology into the debate. For this opportunity, one that was perhaps bestowed unintentionally, we have Justice Anthony Kennedy to thank.

Views of a Veteran Administrator

Deborah W. Meier

MacArthur Genius, director and adviser to The Forum for Democracy and Education

I can understand why many people of color have lost interest in the 1954 Supreme Court decision- because more than half a century later it's never come to pass. Legally enforceable segregation was stopped, no small thing. But the promise behind the Brown decision was stymied by a host of other social, political and economic decisions that undermined the possibility of natural integration.

The majority for the next 50 years made decisions that made integration in the places where kids spend 13 years learning about the world they live in highly unlikely. In 1954 suburban housing and transportation were subsidized by the federal government and were booming. But we made sure it happened in ways to "naturally" reinforce segregation.

Families that were economically better off and white chose the easy solution, a trip to the suburbs.

For middle-class blacks, there were also choices, especially once racial restrictions on housing were loosened. And there were not enough of them to change the character of the all-poor, all-black or Latino inner-city schools from being at least integrated by class to being all poor.

Martin Luther King Jr. understood this when he decided that he had to begin to tackle issues of social class and economic justice, not just race.

We cannot fall for the idea that we can only deal with racism as it affects test scores. It can't all be dumped into the lap of school reform. Cheap NCLB-style reforms are not a substitute for the progressive reforms needed to restore a level playing field in America.

Schools are important. But schools cannot be the entire civil rights movement of our time. Instead we can use them as one among many opportunities to organize, promote and insist on equity.

The achievement gap is a taboo topic in most schools. It's barely discussed in the rooms where mostly white adults gather to examine gap "data." But kids know. I try to imagine discussing with kids why year after year headlines proclaim them to be losers based on their race.

Shame on us for letting the recent Supreme Court decision happen. It's not bad luck. The court majority results from our political representatives-both Republicans and Democrats. We can overcome, but once again the ball is in the wrong court.

Achieving Diversity Without Race

John R. Munich

Partner with Stinson Morrison Hecker, submitted a brief of amicus curiae in the Seattle case on behalf of social scientists concluding that there are no educational benefits resulting from diversity in the classroom

The decision in Parents Involved sends a strong message to educators that the use of race comes with much risk. Indeed, while the Supreme Court left open the ability to use race as a factor, the court made clear that when race is not considered as part of a broader spectrum but is "determinative standing alone," its use is unconstitutional. The court's decision was informed by two prior decisions: Bakke and Grutter.

The Bakke court articulated an understanding of diversity that was not based only on ethnicity, but on other elements like foreign travel, the ability to speak other languages, personal adversity, family hardship, and community service. Applying that reasoning, the Grutter court found compelling student body diversity in the context of higher education.

By upholding Grutter, the Supreme Court has provided some insight into the limited way race may be used as one component to further diversity-at least in higher education. Although it would appear that the use of race as a factor rather than the factor may withstand judicial scrutiny at the K12 level, its use opens up educators to claims of unconstitutionality, resultant liability and, at the least, expensive litigation. To avoid running afoul of the Fourteenth Amendment, I would suggest educators explore other options to achieve a diverse student population. For instance, school districts could employ a matrix of indicators, not based on race, but on other characteristics of individuals' lives. A school district could begin with some of the factors identified in Grutter.

It may also be possible to achieve diversity without the use of a matrix of indicators. Rather than adhering to traditional methods for determining school attendance zones, boundaries could be drawn to incorporate neighborhoods with different socio-economic characteristics. Changing the district lines could result in a diverse student enrollment. To the extent that schools seek to promote diversity, they need to understand that diversity means more than race and that they need to be creative in achieving that goal in light of the Parents Involved decision.

Culminating Step

Pedro Noguera

Professor of Education at New York University, Executive Director of the Metropolitan Center for Urban Education

The recent court ruling marks the return to legally sanctioned segregation. Actually, to be fair it is not the same as the pre-Brown Jim Crow days because the court has not called for schools to be segregated. Rather, the court has disallowed efforts to counter the effects of racial segregation in residential patterns, which almost always affect the racial composition of schools.

The Supreme Court has gradually undermined every effort to address racial segregation in public schools through a series of rulings that have reduced the ability of school districts to utilize race as a means to ensure equity in access to schools and their academic programs. This new ruling merely represents the culmination of those gradual smaller steps.

Those of us who have followed the changes in the direction of the court for the last several years recognize that legal remedies to racial segregation and the larger issue of educational equity have often had limited utility and efficacy. White and middle-class flight from most large American cities have made integration impossible anyway, and in the inner-ring suburbs where there tends to be the most diversity, the most pressing issues related to racial justice have been tied to "second-generation discrimination," namely, tracking-disproportionate placement of minority students in special education and racial imbalances in disciplinary practices.

It is ironic that at a time when the nation claims to be concerned about closing the "racial achievement gap," we are also less willing to address blatant racial injustice in school funding and educational opportunity.