Refighting Yesterday's Battles

Jim Crow is dead. Why not bury him?

If the arguments the Supreme Court heard this week regarding the proper role of race in public schools sounded stale, that's because they are. The activist left, which unfortunately still controls much of the public education apparatus in America, steadfastly refuses to acknowledge that public school districts have not only beat back Jim Crow, they've kicked segregation's sorry ass.

Accordingly, we need a Supreme Court decision that reflects this victory. To do otherwise would devalue the successful and sometimes painful desegregation efforts of the 60s and 70s, as well as ignore the raft of lower court cases in the past 10 years which found many districts did manage to purge de jure segregation from their schools.

The largest school system in North Carolina was one such success story the education establishment preferred to ignore rather than give up a powerful social engineering tool. Back in 1998 Larry Gauvreau was part of a challenge to decades of race-balancing busing in the Charlotte-Mecklenburg school system.

In 1969 a U.S. District Court judge ordered CMS to use all means, including busing, to desegregate after a black student brought suit challenging a student assignment plan that kept him out of a nearby all-white school. In 1971 the Supreme Court upheld that ruling with its Swann opinion.

But by the mid-90s busing in Char-Meck chiefly served to hide low-performing, often minority, populations by spreading them across a well-funded county system. Meanwhile, white students were denied access to some magnet programs as a result of racial targets. In that environment Gauvreau and several other parents sued CMS in federal court seeking to have the busing mandate removed and CMS declared a "unitary" system, the opposite of "separate but equal."

In 1999 the district court agreed and ruled that CMS had achieved "unitary status" and, further, that race could not be used in future student assignments. CMS immediately appealed that ruling to the Fourth Circuit Court of Appeals. Initially, a three-judge panel sided with CMS on student assignment, but then a full en banc ruling doubled back to side with the parents, but with a significant caveat.

"The appeals court was not ready to say that race could never be used, as the trial court had ruled, so it refused to go that far," Gauvreau explains.

Or as the September 2001 decision reads, because it was "unsettled whether diversity may be a compelling state interest" it was improper for the district court to presumptively ban "CMS from any further use of race-based lotteries, preferences, and set-asides in student assignment."

So while using race was off the table, using diversity might not be. Got that?

The Fourth Circuit's convoluted handling of the CMS case stands as a very big reason why the Supreme Court needs to clarify exactly where race-consciousness diversity policies in public schools fit in with regard to the Constitution.

This diversity argument has trickled down from recent affirmative action battles at the college and university level. There diversity is deployed in order to justify race-conscious admission policies. Whatever its merits in higher education, and they are surely scant, the diversity track is positively toxic for K-12 education.

College admissions is much more art than science and one could plausibly argue – although I would not – that including racial diversity as a minor factor in admission decisions is at least possible, if not desirable. However, plug race – or its oft-used proxy, free or reduced lunch populations – into the decision-making matrix of public schools and things can quickly go haywire.

As Gauvreau notes from his current perch as a member of the CMS school board he once sued, racial score-keeping, even masked as amorphous "diversity" goals, can quickly come to dominate school system policy decisions. Everything from school construction, to curriculum, to staffing, to student assessment gets tied up and tied down in the diversity web.

Particularly resistant race-neutral accounting in a "diversity" environment is the belief that low-income minority populations are being short-changed, separate but equal style, when it comes to school district spending. In fact, district after district nationwide spends more per pupil on low-income populations, often by thousands of dollars per child per year. For example, Gauvreau estimates that some inner city elementaries in CMS receive 30 to 50 percent more money per pupil than some suburban elementaries.

Yet you would never know this by reading some of the briefs filed in support of the racial diversity policies the Court is now examining in Seattle and Louisville. In fact, one brief even cites CMS as the kind of "re-segregated" system the Supreme Court could set right by giving diversity policies the Court's blessing.

Instead, the Court should make very clear that a diversity goal is simply government sanctioned discrimination, and thus is runs afoul of the Constitution.

Moreover the Court should do so in clear, precise language. No multi-stage "test" of the kind the Court loves to fabricate. This is not a decision that will serve as a template for sharp congressional staffers to use to draw up some conforming legislation. Rather thousands of confused, imperfect, and – frankly – loony local school boards will have to understand that calling racially weighted policies "diversity" is no safe harbor.

Do that and America can turn to face head-on and without diversion, the tremendous challenge of educating every citizen of the Republic.

Jeff Taylor is editor of Reason Express.