Friday, June 29, 2007

Avoiding race in school assignment

While liberals howl about yesterday's decision somehow taking us back before the days of Brown v. Board of Education as if Jim Crow laws were just days away, let's all calm down. Chief Justice Roberts summed up the majority's view when he said "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Opponents of this ruling are stuck in the position of arguing that discriminating on the basis of race is necessary in order to achieve the somewhat mystical benefits of having a diverse student body. Of course, diversity is being defined only on the basis of skin color.

The county where I live, Wake County, NC, decided seven years ago to stop assigning students to schools on the basis of race. Decades earlier Wake County had avoided the agonies of mandatory school busing by using a magnet school system. Exciting sounding school programs were placed in inner-city schools to entice white suburban students to those schools. I taught for twelve years at one of those magnet schools. The school that used to be the city's all-black middle school got a program for teaching the academically gifted as well as arts and sciences program to make it an inviting place for white students. And, by and large, the plan worked. The only ones who seemed to lose out were the black kids living in the area. There were black kids living across the street from the school who bused 45-60 minutes away to the suburban school to make room for those white kids coming in. These black kids often couldn't participate in after-school activities because they wouldn't be able to get a ride home. Their parents couldn't be active in their children's schools because they didn't have the transportation to get out there. But hey, we had the right racial mix. And then the kids automatically segregated themselves again by race in the cafeteria and on the playground.

But in 2000 Wake County decided to adopt a new policy. Instead of assigning kids to school based on race in the type of program that was struck down yesterday, Wake assigns them on the basis of socio-economic status. As Stuart Taylor posted yesterday in Slate's discussion of the Court decisions,
Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.

Such socioeconomic integration is actually more effective than pure racial balancing at improving the academic performance of poor children of all races, studies show. …

And in many areas, 'socioeconomic integration also will produce a sizable amount of racial integration,' according to "A New Way on School Integration," [PDF] a recent paper by Richard D. Kahlenberg of the Century Foundation.
Of course, there are drawbacks to such a plan. Kids can still be bused all over town and our school system faces annual agonies as students are reassigned from school to school in order to maintain the right SES balance. Wake County credits the new program with raising reading scores.
In 2005, more than 80% of African-American grade-school students were reading at or above grade level, up from 57% in 1998.
As the WSJ says today in looking at Wake County's plan,
But the effort has faced significant challenges, including annual reassignment battles with parents, particularly those from middle-class areas. "Reassignment strikes terror into every parent's heart every year," says Jeanie Bohl, a mother of three.

Such turmoil has been exacerbated by growth so rapid that the district effectively gains two full classrooms of students each school day. The growth has been most pronounced in affluent, mostly white areas.

That has forced the district to bus low-income students longer distances and made it more difficult to stay within the 40% target for students receiving free and reduced-price lunches. Indeed, last year about 38 schools were above the target, and at virtually all of them, white students were in the minority.

To cope with the growth, the district has begun converting more schools to year-round calendars, staggering schedules and vacation times. Wake Cares, a group of mostly middle-income parents, has gone to court to challenge such conversions in their neighborhoods. In May, a state judge in Raleigh ruled the district can't assign any students to such schools without their parents' consent.
There have been terrific battles over the new plan to convert all the schools to year-round. Consequently, other options such as homeschooling, private and charter schools have blossomed. More parent choice for schools always seems to me to be the best answer. For parents who care about diversity, they can choose a school that has a very diverse school body. Parents who want a school nearby could choose one. Parents who don't mind the long bus trip for their kids in exchange for a particular plan could choose that option. Let a thousand flowers bloom and then compare how students do under each plan. Parents can then plan accordingly for their own children based on what matters to them.

By the way, for the most thoughtful discussion of the school decision, head on over to SCOTUSblog. As always, they have a full analysis of all the decisions handed down yesterday. One thing that several of the analysts seem to be coming to agreement on is that the Kennedy concurrence saying that race could be used in some particular, but undefined circumstances, for school assignment is not as different from the plurality's decision as first might appear. As Bob Driscoll, who had filed an amicus brief against the schools' plans, writes,
Moreover, the suggestion by Justice Kennedy that race may be used as "one factor" of many is difficult to comprehend in the K-12 public school context where assignment is not competitively-based. It will be interesting to see what districts and courts do in response to the Kennedy concurrence, but I do not think that this situation is analgous to Gratz and Grutter, after which admissions officers merely began to chant "one factor" while continuing to make essentially race-based decisions in the same manner that they had been. School districts will have a very hard time evading this decision if they disagree with it. While those who are skeptical of governmental race-based decision-making may not view the result in these cases as philosophically pure due to the Kennedy concurrance, it is nevertheless a practical victory in my view. I do not see many plans with maximum or minimum racial percentages surviving a well-crafted challenge in light of these opinions.
He also shows that the minority's efforts to demonstrate that they are applying strict scrutiny to the use of race in school assignment is really just a pretense.
Second, although the Breyer dissent mouths the words "strict scrutiny," it is clear that the dissenting Justices would apply some lesser level of scrutiny to "inclusive" governmental decision-making based on race if given the opportunity. Indeed, in discussing the social science research on the purported educational benefits of diversity, the Breyer dissent acknowledges a split in academic authority on the topic, yet then goes on to defer to school boards' choice of what research to give credit to -- I'm not sure what that means, but its doesn't seem like strict scrutiny to me if a "compelling" justification can be articulated by choosing favorable social science research from a body of inconsistent studies (one can imagine the fun that could be had in selecting social science studies in the criminal justice field to justify race-based decsion making by the government).
Of course, it will all depend on what Anthony Kennedy regards as a compelling state interest since it seems that Kennedy's view will be the controlling one for any close case. Scotusblog's excellent statistics for the past term show that there were 24 decisions that were decided on a 5:4 or a 5:3 basis and Justice Kennedy was in the majority for every single one of them. It's amazing. (Check out here for a visual representation of how the justices voted in 5:4 or 5:3 decisions.) He was only in the minority two times the entire term.
One must look way back in the Court's history to find any single Term where one Justice had comparable success. Justice Kennedy's two dissenting votes tied Justice Brennan’s output in October Term 1968; with a larger caseload back then, though, Justice Brennan’s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White’s October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).

The bottom line is that, by most measures, Justice Kennedy’s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.
We are truly living in Anthony Kennedy's America.