Race-Based Student Assignment

When the U.S. Supreme Court rules on the Louisville and Seattle voluntary school integration cases in the coming months, at stake will be the ability of local school boards to create the kind of educational environments that are necessary to provide more equal educational opportunities and prepare our children for work and citizenship in a society that is becoming increasingly diverse. Also at issue in both cases is the interpretation of the Fourteenth Amendment and its promise of “equal protection” for all as it relates to race-conscious policies designed to overcome continuing patterns of racial discrimination and to promote school integration.

Brown and Its Implementation

Throughout American history the ideal of free public schools providing “common” and thus equal educational opportunities to all has conflicted with a society sharply divided by race and social class. Most notably, African-American slaves and their descendants were legally excluded in the states where most blacks lived from meaningful participation in common schools for the first 100 years of their existence. The U.S. Supreme Court’s 1954 landmark decision outlawing school segregation in Brown v. Board of Education[1] promised to address this contradiction: Its strong insistence, repeated six times in the decision, on truly extending equal educational opportunity to African-Americans constituted a “reconsecration of American ideals.”[2]

In addition to asserting the importance of equal educational opportunity, the Brown decision also led to greater centralization of the public educational system, as the federal courts, and eventually Congress and the executive branch, stepped in to circumvent local control of public schools when local officials were denying African-American students access to “common” schools. Although the Supreme Court moved slowly in the early years, the Court SEQ CHAPTER h r 1finally confronted local political resistance to desegregation in a series of rulings from the mid-‘60s to early ‘70s. In these decisions, the Court insisted on meaningful and not merely pro forma compliance with Brown. It rejected locally implemented stratagems like publicly funded segregated academies for white students and the use of a “freedom of choice plans,” which placed the burden of dismantling racial segregation on black families and allowed white school administrators to deny black students access to their schools. Furthermore, the Supreme Court emphasized the need for a desegregation plan “that promises realistically to work and promises realistically to work now.”[3] In this regard, the Court, among other things, promulgated a series of specific standards that endorsed the use of busing, upheld reliance on numerical guidelines for racial balance in local schools, and advocated the re-drawing of attendance zones to promote desegregation.[4] These rulings in effect undermined much of the decision-making power of local school boards when it came to pupil assignments—all in the name of the Fourteenth Amendment rights of African-American students.

In the 1970s, however, as the venue of the desegregation confrontations moved to northern and western locales, the Supreme Court’s efforts to enforce meaningful educational opportunities began to wane. The geography of northern metropolitan areas meant that meaningful racial integration could not occur unless students crossed jurisdictional boundaries. One of the central legal issues in these cases, therefore, was the extent to which court-ordered remedies for Fourteenth Amendment violations could override time-honored traditions such as local control. In Milliken v. Bradley, the Court held that extensive urban segregation patterns could not be remedied by a mandatory desegregation plan in the absence of evidence that the suburban districts had, in the past, intentionally discriminated against minority students.[5] In essence, in this case, the Court held that the anti-discrimination principle value, grounded in Fourteenth Amendment rights, must yield to the imperative of local control.

Since Milliken, the Court has repeatedly re-emphasized the deference it accords local control in education. And in upholding the diversity-oriented admissions policies of the University of Michigan’s law school, the Court similarly stressed the importance it accords to the policy decisions of local college officials.[6]

The Court’s decisions to give primacy of place to values of local control have severely limited the realization of Brown’s vision of equal educational opportunity and thus the application of the Fourteenth Amendment to issues of education and race. In a country where racial and, increasingly, socio-economic segregation define housing patterns and property values,[7] these decisions also assured that our public schools would become more and not less racially segregated in the 1980s and ‘90s. In fact, in recent years there has been a marked trend toward re-segregation of the nation’s schools.[8]

Meanwhile, the school-age population has become increasingly diverse. In the 2004–2005 school year, only 57 percent of students enrolled in public schools across the country were white, down from 78 percent only three decades ago. In the same time period, the Hispanic student population grew from 6 to 19 percent.[9]

Social Science Evidence regarding Race-Conscious Policies

Perhaps most problematic is that the social science evidence, as well as common sense about the future of our democracy, points us in the opposite direction. In the last thirty years, social scientists have amassed a large body of research evidence suggesting that, as imperfect and uneven as school desegregation policy has been, it did more to further the Fourteenth Amendment “equal protection” rights of African-American students, as promised in Brown, than any other reform in U.S. history.

The preponderance of the research evidence concludes that racial integration of public schools improved cross-racial understanding and reduced racial prejudice—both in the short and the long run—and helped to shrink the achievement gap between African-American and white students by improving black students’ outcomes, particularly in reading.

In regard to the first finding, the research strongly suggests that the benefits of school-level diversity in K-12 public schools are both personal—affecting the students by preparing them to be citizens, workers and family members in the twenty-first century—and societal—easing potential tensions related to an increasingly diverse democratic society and positioning U.S. corporations more strategically within the global economy.[10]

Research examining students’ racial attitudes demonstrates that children enrolled in more racially and ethnically diverse schools and classrooms are far less likely to harbor stereotypes or prejudicial views of people of different racial backgrounds.[11] In fact, the findings are so robust that a comprehensive meta-analysis of 515 such studies involving a total of 250,000 participants concluded that more contact with members of other races reduces prejudice.[12]

In addition, the so-called “long-term effects” research on adults who attended racially diverse schools as children also shows similar and long-lasting effects. Desegregated blacks are much more likely than their segregated counterparts to make choices that place them in integrated and more advantageous environments for the rest of their lives.[13] Furthermore, these graduates, including graduates of Louisville and Seattle schools, conveyed that their educational experiences prepared them for life in an increasingly diverse society.[14]

The other major benefit of school desegregation is its impact on African-American student achievement. Evidence suggests that school desegregation boosted black students’ achievement levels (especially in reading) and that it had no discernable impact on white student achievement. First of all, it seems more than coincidental that the years in which the black-white achievement gap closed most quickly correspond with the years that students of different racial and socioeconomic backgrounds were more likely to be in the same schools and in closer proximity to the same curriculum, teachers, school resources, and status.[15] Furthermore, several recent meta-analyses demonstrate a strong positive relationship between the more racially integrated schools and higher achievement levels for African-American students.[16]

Harms of Racial Isolation and the Need for Race-Conscious Remedies

There is also a large body of evidence demonstrating the harms of racially isolated schools for all children, but especially for poor students of color. According to the Social Science Statement signed by 553 researchers submitted to the Supreme Court as part of the Louisville and Seattle cases, in most instances, highly segregated schools that serve the lowest-income students of color more have fewer certified, qualified, or experienced teachers; more teacher turnover; more limited curriculum; more student health problems; and more crime and violence in the communities surrounding the schools. As a result of these multi-layered problems, student achievement and graduation rates are far lower in such schools, and dropout rates are much higher.[17]

And finally, the social science research speaks to the need for race-conscious policies in order to achieve meaningful racial integration. In fact, several of the amicus briefs as well as the Social Science Statement cite extensive research that demonstrates that race-neutral programs fail to achieve the goal of racial integration in public schools. Relying on legal, historical, and social science evidence, these briefs argue that race-conscious policies and programs are still needed to overcome racial inequality in our society. They demonstrate why only race-conscious policies will dismantle the insidious racial segregation that is otherwise perpetuated across generations and still strongly defines neighborhoods and public schools today.[18]

A “Color-Blind” Fourteenth Amendment and Less Local Control

Despite this powerful research evidence, the plaintiffs and their supporters in the Louisville and Seattle voluntary integration cases would deny the important benefits of diversity and desegregation to thousands of students in these districts because of a claimed detrimental impact on a small number of students who did not receive their first choice enrollments under the districts’ controlled choice policies. In this way, they seek to divorce Fourteenth Amendment claims of equal protection—and indeed, equal educational opportunities—from rationales for creating more racially diverse schools, even if it entails trampling the local control of school districts officials who see otherwise.

Indeed, the petitioners argue that the Fourteenth Amendment rights of this small group of white children have been denied as a result of these locally devised, voluntary desegregation plans. The plaintiffs’ arguments must be understood, however, in the context of a broader political movement to shift the legal interpretation the Fourteenth Amendment toward a “color-blind” stance that would forbid the use of any race-conscious efforts to promote racial equity in school assignments—or quite possibly any other policies, including affirmative action in higher education or employment, scholarships, or contracts.

Ironically, it was only a few years ago, in Grutter v. Bollinger,[19] that the Supreme Court upheld a university admission plan that promoted racial diversity. If diversity in higher education has value, supporters of the Louisville and Seattle school districts argue, then these concerns operate even more strongly in the context of K-12 integration, since, as the Court recognized in Brown, the K-12 years are the critical formative period in the development of young minds and future citizens.[20]

Furthermore, in contrast to the would-be law students who were denied entrance to the Michigan law school in Grutter, those who were negatively impacted by the K-12 racial diversity cases were in most instances accommodated in their second choice school and were often able to transfer to the first choice school a year or two later. Moreover, there has never been an individual right to choose the public school one wishes to attend. Public schools have long had a history of compulsory assignment, depending on attendance zones and other factors determined by the local school boards.

The current argument that the Fourteenth Amendment forbids the use of any race-conscious efforts to promote racial equity in schools is also totally inconsistent with the long history of desegregation law. As Judge John Wisdom Minor of the Fifth Circuit noted in a prior case involving the Louisville schools, “the Constitution is color-conscious to prevent discrimination from being perpetuated and to undo to the effect of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose.”[21] The Supreme Court has also explicitly recognized the need for race-conscious policies to eliminate racial segregation.[22]

Furthermore, the irony of the plaintiffs’ stance is that they also seek to undermine the values of local control, which the Supreme Court has repeatedly said were so important that they had to trump other constitutional concerns. It is one thing for the Court to weigh Fourteenth Amendment claims related to ongoing segregationagainst the importance of local control. It is quite another thing to deny the value of either.

In Louisville, the district’s goal of having all schools maintain between 15 and 50 percent black students is achieved through a comprehensive plan that emphasizes cluster groupings, adjustment of school attendance areas, and “managed choice”; the vast majority of students attend their “resides” school or are accommodated with their choice of magnet programs. In assigning students to a few over-subscribed schools, the district uses distance from home, presence of siblings, and other factors in addition to race to make its decisions. The vast majority of students obtain their first or second choice schools without race being taken into consideration. Both of these plans are exemplary examples of sound local planning and are fully in line with the Supreme Court’s past holding that “as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.”[23]

No Race Left Behind

Despite the Court’s faltering steps in actively promoting school desegregation in recent years, Brown’s vision of equal educational opportunity has remained at the center of our national educational policy. The No Child Left Behind Act (NCLB) has restated the ideals of eliminating achievement gaps and promoting proficiency for all and, in fact, has turned them into national goals that schools are required to meet by 2014.

The social science evidence submitted in these cases strongly suggests that in order to achieve such goals, more, not less, racial integration in our schools will be required.[24] Indeed, NCLB itself is highly race conscious, since it requires school districts to disaggregate student achievement data by the race, disability or disadvantage, and poverty rates of students. If the careful examination of student outcome data by race and opportunity are central to NCLB’s worthwhile goal of equal educational outcomes, it is hard to image how we can simultaneously argue that we should ignore race completely when assigning children to non-failing schools.[25] If we acknowledge, as we should, that the vast majority of failing schools under NCLB are those serving racially segregated poor students of color, we also need to admit that we have yet to evolve into a truly color-blind society in which race is no longer a factor assuring educational opportunities.

Notes

[1] Brown v. Board of Education, 347 U.S. 483 (1954).

[2] Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Random House, 1977), 710.

[3] Green v. County School Board, 391 U.S. 430, 439 (1968).

[4] Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

[5] Milliken v. Bradley, 418 U.S. 717 (1974).

[6] “The law school’s educational judgment that such diversity is essential to its educational mission is one to which we defer.” Grutter v. Bollinger, 539 U.S. 306, 328 (2003).

[7] Xavier de Souza Briggs, The Geography of Opportunity: Race and Housing Choice in Metropolitan America (Washington, D.C.: Brookings Institution Press, 2005); Peter Drier, John Mollenkoph, and Todd Swanstrom, Place Matters: Metropolitics for the Twenty-First Century (Lawrence, Kan.: University of Kansas Press, 2004), 25.

[8] Erica Frankenberg, Chungmei Lee, and Gary Orfield, “A Multiracial Society with Segregated Schools: Are We Losing the Dream?” The Civil Rights Project, Harvard University, January 2003.

[9] U.S. Department of Education, National Center for Education Statistics. The Condition of Education 2006, NCES 2006-071.

[10] Amy Stuart Wells, Jacquelyn Duran, and Terrenda White, Refusing to Leave School Desegregation Behind: From the Graduates of Racially Diverse Schools to the Supreme Court (New York: Teachers College Record, in press).

[11] Brief for American Social Scientists as Amici Curiae Supporting Respondents, nos. 05-908 and 05-915. Liliana M. Garces, Counsel of Record, Cambridge, Mass.; Brief of the American Educational Research Association as Amicus Curiae in Support of Respondents, nos. 05-908 and 05-915. Angelo N. Ancheta, Counsel of Record, Santa Clara University School of Law.

[12] Thomas F. Pettigrew and Linda R. Tropp, “A Meta-Analytic Test of Intergroup Contact Theory,” Journal of Personality and Social Psychology 90, no. 5 (May 2006): 751–783.

[13] Amy Stuart Wells and Robert L. Crain, “Perpetuation Theory and the Long-Term Effects of School Desegregation,” Review of Educational Research 64, no. 4 (1994): 531–555.

[14] Brief of Profs. Amy Stuart Wells, Jomills Henry Braddock II, Linda Darling-Hammond, Michael A. Rebell, and the Campaign for Educational Equity as Amici Curiae in Support of Respondents. Kenneth D. Heath, Council of Record, Wiggin and Dana LLP, New Haven, Conn.

[15] David Grissmer, Ann Flanagan, and Stephanie Williamson, “Why Did the Black-White Score Gap Narrow in the 1970s and 1980s?” in The Black-White Test Score Gap (Washington, D.C.: Brookings, 1998), 182–226.

[16] Statement of American Social Scientists of Research and Brief of the American Educational Research Association.

[17] Statement of American Social Scientists of Research.

[18] Brief of the Caucus for Structural Equity as Amicus Curiae Supporting Respondents. Daniel R. Shulman, Council of Record, Gray, Plant, Mooty, Moorty & Bennett, P.A., Minneapolis, Minn.; Amy Stuart Wells, “Speaking Truth to Power: Research Evidence on School Desegregation and the Supreme Court,” Education Week, Dec. 20, 2006.

[19] Grutter v. Bollinger, 539 U.S. 306 (2003).

[20] Brown v. Board of Education, 347 U.S. 483, 494 (1954).

[21] United States v. Jefferson County Board of Education, 372 F. 2^nd 836, 876 (5^th Circuit, 1966).

[22] See Board of Education v. Swann, 402 U.S. 43, 46 (1971); Green v. County School Board, 391 U.S 430, 437 (1968).

[23] North Carolina State Board of Education v. Swann, 402 U.S. 43, 45 (1971); see also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). School authorities “are traditionally charged with broad power to formulate and implement educational policy and might well conclude … that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole.”

[24] James E. Ryan, “Schools, Race, and Money,” Yale Law Journal 109, no. 2 (Nov. 1999).

[25] We credit Anurima Bhargava of the NAACP Legal and Educational Defense Fund for informing our thinking on this paradox.

This term, the Supreme Court will decide the two most important race cases since Brown v. Board of Education I and II.[1] In Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education, school districts implemented policies that used race to decide where children would go to school in order to achieve “racial balance.” The question before the Court is whether these policies are in concert with the equal protection clause of the Fourteenth Amendment to the United States Constitution. Oral arguments in these cases took place in December 2006, and if they are any indication, the Roberts Court is poised to answer with a resounding “no.”

In fact, these policies clearly do violate the equal protection clause. One need look no further than the language of the clause itself: The state shall not “deny to any person within its jurisdiction the equal protection of the laws.”[2] If making decisions about children’s education on the basis of race is not, by definition, unequal treatment under the law, then it is hard to imagine what is. No imaginative reinterpretations of the equal protection clause or of Supreme Court jurisprudence—and no amount of social science studies—can alter the sanctity of our individual right to equal treatment by our government.

Yet that is precisely what Michael Rebell and Amy Stuart Wells offer. The purpose of this article is to dispel the myths that have propped up the case for race-based student assignments.

Myth #1: Brown Requires Racially Balanced Schools

The most prevalent legal myth is that Brown I interpreted the equal protection clause to require school districts to racially balance their schools. According to this myth, if a school district does not racially balance its schools—regardless of whether it is responsible for the imbalance—it is in violation of the equal protection clause. Neither Brown I, nor any Supreme Court decision since, has ever sanctioned (let alone required) local governments to use race to balance their schools. Indeed, in Brown II, decided just one year after Brown I, the Court made clear that its holding banned all uses of race to assign children to schools, whether to achieve segregation or force racial balance.

Brown I was a consolidated appeal of various cases involving the use of race by government to segregate schools. In each of those cases, either a state law or a school district policy forced black and white children to go to separate schools solely on the basis of race. The Court considered the pernicious effect on black children that resulted when government “separate[d] them from others of similar age and qualifications solely because of their race.”[3] The Court noted that the impact on black children “is greater when it has the sanction of law,” because “the policy of separating the races is usually interpreted as denoting inferiority.”[4] The Court concluded that such a policy violated the equal protection clause.[5]

The holding in Brown I is premised on offensive government action—in this case, the segregation of children in public education on the basis of race. Black’s Law Dictionary defines “segregation” as “the act or process of separation.” As the definition implies, “segregation” requires an actor—someone who enforces the separation. The Court has frequently recognized the distinction between segregation and racial imbalance resulting from voluntary housing patterns.[6] In Brown I, state and local governments separated the children on the basis of race, and the Court rightly concluded that such official action violated the law. But the Court did not consider the question of what the equal protection clause permits or requires when government has taken no action to separate the races in public education.

In Brown II, decided one year later, the Court discussed the relief necessary to remedy the constitutional violation found in Brown I.[7] Proponents of race-based policies ignore this decision, because it confirms that Brown I’s holding is limited only to official government action and nothing more. The Court described its Brown Iholding as stating “the fundamental principle that racial discrimination in public education is unconstitutional.”[8] It explained that “at stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.”[9] For the Court, the goal was “to achieve a system of determining admission to the public schools on a nonracial basis.”[10] Again, Brown II has nothing whatsoever to say about the necessity or propriety of a policy to racially balance schools for its own sake.

The Court has time and again made clear that outright racial balance, for its own sake, “is patently unconstitutional.”[11] And that makes perfect legal sense. The equal protection clause by its own terms prohibits government action. It does not, as Rebell and Wells argue, prohibit people from making choices about where to live and, consequently, where to send their children to school. And it does not permit government to take on the role of social engineer and reshuffle students on the basis of their race solely to meet a desired “racial balance.”

Myth #2: PICS/Meredith Are about Segregation

Proponents of race-based assignments, including Rebell and Wells, attempt to convince us that PICS and Meredith are “segregation” cases. The idea is to fit these cases within the Brown paradigm and force the current Court and public opinion to endorse race-balancing policies. But the notion that PICS and Meredith are segregation cases is simply false.

There is no evidence in the record of either case that the policies at issue are designed to remedy segregation. To the contrary, in PICS, “the parties concede[d] the District’s schools have never been de jure segregated”—i.e., segregated by the school district itself. Nor was there any suggestion made in that case that “Seattle’s housing market has ever been affected by de jure segregation.” Similarly, the school district in Meredith made no admission that it had segregated its schools on the basis of race. PICS and Meredith are not about segregation. They are about a government policy that seeks to racially balance schools for the sake of racial balance.

Myth #3: Our Rights Depend on the Social Science Literature of the Day

Like the courts of appeals in PICS and Meredith, Rebell and Wells rely heavily on social science evidence of the benefits of racial integration and the concomitant harm of racial isolation on minority students. On the basis of this “evidence”—often shaky, at best—they would carve out an exception to the equal protection clause. Since minority children benefit from race-based assignments, it doesn’t matter that the individual right to equal protection of the laws of a few students is sacrificed in the process.

The principal problem with such evidence is that it is litigation-driven. Social science research supporting one principle one day can be replaced easily with social-science research supporting the opposite principle the next. In the wake of the Court’s decision in Brown, which relied in large part on social science research regarding the harmful effects of racial segregation on children, one legal commentator aptly observed:

Today the social psychologists … are liberal and egalitarian in [their] basic approach. Suppose a generation hence, some of their successors were to revert to the ethnic mysticism of the very recent past; suppose they were to present us with a collection of racist notions and label them “science.” What then would be the state of our constitutional rights?[12]

The horrific results from a jurisprudence dependent upon social science fads are evident throughout history. Can anyone forget the shoddy social science that propped up the Court’s infamous decisions in Dred Scott v. Sandford[13] and Plessy v. Ferguson,[14] which convinced a majority of Justices that blacks are inferior to whites?

It would be interesting to know how Rebell and Wells would respond to a First or Fifth Amendment jurisprudence that relied on ever-changing social science evidence. Suppose that social scientists demonstrated, for example, that even peaceful political protest is detrimental to social cohesion and solidarity. Or suppose that they established that crime could be substantially reduced if certain Fifth Amendment protections were relaxed. Would they advocate laws suspending these constitutional rights on the basis of the social science evidence? We should hope not.

Myth #4: Communities Have the Right to Decide How

Children Are Assigned to Schools

Rebell and Wells bemoan the fact that advocates of a “color-blind” equal protection clause seek to undermine “local control.” They suggest that a community, through its school district, should be free to craft whatever admissions policies it desires. And, as far as race-balancing policies go, they brush off the fact that “a small number of students” do not get assigned to the school of their choice. These arguments are not new.

In Brown, state and local government officials, along with their segregationist supporters, demanded that the courts—and the Constitution—not interfere with local decision-making power. Governor Wallace’s infamous stand in the schoolhouse door in 1963 exemplified the mentality of local-control advocates: If the majority in a community wants raced-based school assignments, it was nobody’s business if a small group of students happened to not obtain their choice of school. Sound familiar?

The notion that a community has the “right” to trample upon a person’s individual right to equal protection is a dangerous myth. As the Court in Grutter v. Bollinger explained, “all governmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”[15] Therefore, any individual—let alone a small number of children—“has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.”[16]

The Court’s strict scrutiny of all race classifications reflects the inescapable truth that the judiciary’s role is precisely to intervene when majoritarian preferences violate individual rights. Judges are the “faithful guardians of the Constitution.”[17] As such, the judiciary operates as a “safeguard against the effects of occasional ill humors in the society.”[18] No amount of good intentions or social science research can alter this reality: The judiciary’s purpose is to strike down legislative acts like the ones challenged in PICS/Meredith because they offend the Constitution.

Myth #5: If School Districts Can’t Make Race-Based

Assignments, Minority Students Will Suffer

Finally, with their emphasis on “race consciousness,” Rebell and Wells advance the myth that there are no race-neutral means to improve the education of all students. In fact, there are numerous race-neutral alternatives available to school districts. For instance:

• School districts can reform the public school system so that low-income parents stuck in poorly performing schools can send their children to better ones. Charter schools and the use of vouchers are two excellent models for reform.[19]
• School districts can create magnet schools that offer specialized programs to all interested students. As a California appeals court has explained, “Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis.”[20]
• School districts can assign students on the basis of a random lottery system, giving all children the opportunity to attend the best schools without regard to race.

The federal government has similarly recognized the availability of race-neutral means to achieving racially balanced schools. The Department of Education’s Office for Civil Rights published a detailed report in 2004 entitled “Achieving Diversity: Race-Neutral Alternatives in American Education.”[21] The report identifies numerous “innovative ‘race-neutral’ alternatives” to improve the education of all students while avoiding the sort of blatantly race-conscious policies adopted in PICS and Meredith.

Conclusion

The debate over race-balancing policies in public schools has long been muddied by myths, distortions, and ahistorical narratives. It is essential that those myths be dispelled and that the public understand why those policies violate the right to equal protection. The rights of individuals do not exist at the sufferance of government or academics. Quite the contrary: Individual rights are a bulwark against majoritarian preferences—even those inspired by the best of intentions.

Notes

[1] Brown was decided in two phases: the merits phase, Brown I, 347 U.S. 483 (1954), and the remedies phase, Brown II, 349 U.S. 294 (1955).

[2] U.S. Const. amend. XIV.

[3] Brown I, 347 U.S. at 494.

[4] Ibid.

[5] Ibid., at 495.

[6] “The differentiating factor between de jure segregation and so-called de facto segregation … is purpose or intent to segregation” (Keyes v. School District No. 1, 413 U.S. 189, 208 [1973], emphasis in original); “‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national original, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance” (Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 [1971]).

[7] Brown II, 349 U.S. 294.

[8] Ibid., at 298.

[9] Ibid., at 300 (emphasis added).

[10] Ibid., (emphasis added).

[11] Grutter v. Bollinger, 599 U.S. 306, 330 (2003). “Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation” (Freeman v. Pitts, 503 U.S. 467, 494 [1992]).

[12] Edmond Cahn, Jurisprudence 30 (1955): 150, 167.

[13] Dred Scott v. Sandford, 60 U.S. 393 (1856).

[14] Plessy v. Ferguson, 163 U.S. 537 (1896).

[15] Grutter, 539 U.S. at 326 (emphasis added). “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States” (Loving v. Virginia, 388 U.S. 1, 10 [1967]).

[16] Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995).

[17] Alexander Hamilton, Federalist 78, at 470.

[18] Ibid.

[19] Kevin Brown, “The Supreme Court’s Role in the Growing School Choice Movement,” Ohio State Law Journal 67, no.1 (2006): 37, 41.

[20] Crawford v. Huntington Beach Union High School District, 98 Cal. App. 4th 1275, 1286 (2002); see also Hernandez v. Board of Education, 126 Cal. App. 4th 1161, 1167–68 (2004); Nick Lewin, “The No Child Left Behind Act of 2001: The Triumph of School Choice over Racial Desegregation,” Georgetown Journal on Poverty Law and Policy 12, no. 1 (Spring 2005): 95–97.

[21] U.S. Department of Education Office for Civil Rights, “Achieving Diversity: Race-Neutral Alternatives in American Education” (2004).