Segregation is unconstitutional, so desegregation must also be?

Cruel irony dripped from the Supreme Court’s decision today to declare unconstitutional the school assignment plans in Seattle and Louisville. In Brown v. Board the Court ruled that districts could not segregate schools based on race. Today’s ruling says, in effect, districts can not desegregate based on race either. I respectfully disagree with Liz in arguing that the ends in this instance do justify the means, and that the race-blind language in Brown should not be understood so literally as to ignore the larger social issues the case addressed.

From 1975 to 2000, under court order to desegregate, Louisville assigned students to schools based on a number of categories, including race. When let go from court supervision, the district voluntarily chose to keep the racial classification as one factor in its school assignments. Today’s decision essentially makes the same tools used to desegregate schools only seven years ago now unconstitutional, as if de facto segregation had been permanently overcome.

The Court erred tremendously in considering the school assignment plans from Louisville and Seattle together. True, both plans utilized a numeric race window as a consideration for assigning children to schools, but the similarities stop there. The majority, written by Chief Justice Roberts, repeatedly cited the fact that a Seattle school with 30% Asian-American, 25% African-American, 25% Latino, and 20% white students would not be allowed under their plan. In an effort to create diversity, Roberts is surely correct in asserting such a school should qualify.

The majority faulted both districts for assigning students based on either/ or racial classifications: white/ nonwhite in Seattle and black/ other in Louisville. But the demographics in the two districts are not comparable. In Louisville, the dichotomy was real; only a tiny percentage of students did not fall into one of these categories. Seattle, on the other hand, had significant percentages of students of Hispanic and Asian descent.

Roberts also repeatedly emphasized the infrequency of Louisville’s usage of race as a reason for it to be abolished. His logic was that, since it was a small factor (only about 3% of the school assignment decisions employed race at all), it was expendable. But small usage does not mean small importance. Today, over one third of black and Latino K-12 students still attend schools where at least 90% of the students are considered a minority. More than one in six African-American students attends a school with a minority population greater than 99%.

These concentrations manifest in poor schools. Blacks are considerably more likely to
attend schools with lower average academic skills than whites are. And they are more likely to be enrolled in schools with larger class sizes and with teachers who are less prepared than their counterparts in predominantly white schools. Compared with tenth grade whites, tenth grade black students are more likely to attend schools with security guards (71 vs. 47 percent), metal detectors (21 vs. 3 percent), and bars on the windows (9 vs. 2 percent).

In Louisville, a district with an African-American concentration of 34%, the plan required blacks to make up between 20-50% of each school’s students. This is a fairly large window, and the fact that 70% of its schools fell more than five percentage points away from the average indicates flexibility in the plan’s implementation. Furthermore, some schools went over the 50% maximum, meaning it was not a strict “quota” by any definition.

Opponents of using racial guidelines suggest socioeconomic status (SES) as a proxy for race, but targeting by SES alone does not achieve the desired results. In 2004-2005, the US Department of Ed. highlighted five districts (Charlotte-Mecklenburg and Wake County, NC; San Francisco, CA; Brandywine, DE; and La Crosse, WI) that had implemented SES-based school assignment plans. None of the five eliminated racial segregation. Both North Carolina districts saw substantial hikes in their racial concentrations; Charlotte-Mecklenburg's percentage of students in racially segregated schools increased 25%. The other three districts achieved only modest gains. La Crosse's meager 3.25% reduction scored top marks, and had the advantage of nine extra years.

Near the end of the majority decision in the Michigan law school affirmative action case, the Court suggests that 25 years from now racial preferences will no longer be necessary. While this is an admirable goal, it should not be constrained by a given number of years. Instead, we must continue to utilize racial considerations until the statistics begin pointing to a world where race is neutral.