"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"- Chief Justice John Roberts

It has taken me about 10 days to become rational and coherent enough to write this post. I realize this makes me a bad blogger, but I'm new at this so bear with me.

After about a grand total of 8 hours of class time in constitutional law, we have just wrapped up the equal protection clause as it relates to racial classification. Done and done....clearly no more to say on the issue. (Sarcasm should be apparent here). Our last class session put me over the edge. We read Parents Involved in Community Schools v. Seattle School District. (Go here for a synopsis of the opinion....sorry I can't find a link to the actual opinion). Basically, parents sued Seattle school district for using a race as a factor in assigning students to schools that were oversubscribed. Seattle had a choice-based system, so students preferenced which school they wanted to attend. A host of other factors were considered before race, and ultimately a very small percentage of students were affected by the racial classification system. The goal, though, was to ensure a level of diversity within these schools that was representative of the school district as a whole. In a 5-4 opinion, the Supreme Court struck down this system of classification, finding that it wasn't a nuanced approach to diversity like that used in Grutter (where the Court upheld Michigan Law School's system of considering race as a "plus" factor in admisssion, recognizing school diversity as a compelling interest and granting a great deal of deference typically absent from the strict scrutiny review (a presumption of unconstitutionality, for you non-law people out there) of government policies that explicitly classify people by race). The opinion concludes with what I can only imagine Chief Justice Roberts thought was a brilliant insight: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I should say at this point that I am not typically in favor of quota-based affirmative action...not in secondary education, anyway. However, I personally would have upheld the system used in Michigan's undergraduate program that was found unconstitutional by the Court (Gratz v. Bollinger- racial minorities were automatically assigned 20 of the 100 points necessary for admission at U of Michigan; the court found this approach was not narrowly tailored to the interest in student diversity).

Whatever my ever-evolving feelings about "affirmative action" (I use quotes because that term is used to describe a whole range of programs that approach the issue differently), I feel that achieving diversity in public schools is not just a compelling governmental interest- it is an essential governmental interest. The Court makes a series of presumptions in its opinion that betray a debilitating lack of knowledge about the realities of urban education. First, the Court suggests that Seattle schools could engage in the kind of "holistic" review employed by Michigan Law School. I'm sorry, but Seattle public schools have over 45,000 students. Let's just say that there are about the same number of students in each grade. This means that every year they are looking at school preferences for almost 4,000 students (most likely more, because it's probable that similar to most other urban districts, they have far more freshman than sophomores, juniors or seniors). While Michigan Law received a similar number of applications, application review is the sole function of the Michigan Law School admissions department. What makes the Court think that Seattle Public Schools have the time or the money to create a department who specializes in conducting a holistic review of applications completed by 8th graders??? Moreover, having struggled to get my own students to turn in a simple list of 5 places where they would like to intern, I can only imagine what potential difficulties would lie in trying to get 4,000 8th graders to complete an extensive application for the high school of their choice. Beyond that, the Court praises Michigan's process as allowing for diversity in non-racial capacities: life experience, talents, etc etc. What other "diversity" are 8th graders going to be able to demonstrate? The only students with compelling different experiences will be those whose parents had enough time and money to sign them up for advanced oboe classes or send them to France for the summer.

The final statement in the opinion by Roberts could only be written by someone like him: a well-educated white man who has never been aware of his race. His stance reminds me of Steven Colbert's consistent facetious statements of "I'm colorblind. I don't see race, but people tell me that I am white." Colbert's joke, which I'm sure is lost on many, is quite telling. The only people in this country who have the luxury of being "colorblind" are people who are white. We don't feel the need to check a box on applications or talk about what color we are, because society doesn't force us to be aware of it. That is because society affords us opportunities because of what we look like, as opposed to denying us opportunities on this very same basis. I find it incredibly ironic that over time, the Supreme Court has managed to wield the equal protection clause against the very groups of people whom it was meant to protect, and has now re-interpreted it to protect white people against the ills that might befall them if we afford preferences to minorities. I mean, Barack Obama is president. Clearly we have moved way past racism in this country. I recently heard a story about a studio executive nixing a project about a young black man dealing with challenges of racism. After the pitch, the exec said "I mean, with Barack Obama in the white house, is this story even relevant anymore??" Never mind the fact that in several studies about teacher mobility, student race is the largest predictor of whether new teachers will leave their current teaching assignment. One study I reach by Eric Hanushek (if you are interested, contact me and I will get you the article) found that teachers with 3-9 years of experience who moved from urban to suburban schools in Texas were, contrary to the prevailing opinions, taking a pay cut rather than a pay raise. Among those teachers who moved schools within the district, the average teacher moved to a school with substantially higher student achievement and substantially lower percentage of minorities and students qualifying for free lunch. For white teachers, initial placement in a school with a high percentage of minorities resulted in a much higher likelihood of exiting the district or exiting teaching altogether, when compared to white teachers placed in a school with a lower percentage of minorities. To induce teachers to stay in such situations, Hanushek's study estimated that a 10 percent increase in the number of black students would have to be accompanied by a 10 percent increase in pay, which is, as a policy matter, obviously both financially and politically infeasible. To step back, and in order to not misrepresent this study, the authors suggest that they do not know whether these factors (student race and achievement) are functioning as proxies for other factors which cause teacher exit, such as discipline and safety problems. I would argue, though, that we ought to conclude the same thing regardless: that student race is, either implicitly or explicitly, affecting teacher behavior. Even if these measures are "proxies" for discipline and student behavior, that raises other issues: why are these students "allowed" to behave this way? When I was teaching, I frequently felt that some horrendous student behaviors were accepted in my school because of what the students looked like.....that the administration, acting not out of bigotry but white guilt (which can be, at times, equally if not more damaging because it runs under the surface rather than out in the open) allowed students to behave in ways that they never would have tolerated if our students had been white.

So what is the role of the law in all of this? The narrow way in which the Court has permitted race to be used as "remediation" (which only really applied to the mandated post-Brown integration and later court consent decrees dictating targets for those districts who dug in their heels about integrating) and as an interest in "diversity" is so detrimental to the improvement of public education. Race still matters. Period. It is no secret that it is difficult to keep good teachers in schools that have a high percentage of minority students, and that generally, schools with a higher percentage of minorities have less resources and opportunities than schools that are majority white. Whether that is the result of teachers acting on explicit racial biases or the product of societal expectations filtering into the way a school functions is irrelevant. What matters is that school racial composition is highly correlated to student achievement, and for the court to ignore equal educational opportunity as a compelling governmental interest is antithetical both to the purpose of the equal protection clause and the Constitution itself. We can not force people to live near people of another race, but school districts should be allowed to combat residential segregation through school integration.