Still More On Racial School Assignment

Two days ago I noted that the Usual Suspects Support Racial Assignment, discussing some amicus briefs supporting the racial student assignment policies of the Seattle and Louisville school boards. I want to call special attention to a couple of the comments to that post, but before I do there have been some discussions elsewhere worth noting.

First, Rachel Godsil, who co-authored an amicus brief by the national PTA supporting racial school assignments, argues that not only is “strict scrutiny” of the school boards’ racial assignment not required, no scrutiny is required because the racial assignment does not involve “competition between racial groups and does not favor one race over the other [and?] does not carry any sort of racial stigma,” argument that were made at greater length in a brief by the NAACP Legal Defense Fund. (In a comment on my recent post linked aboveMark Seecof noted, as embellished by me now, that the NAACP LDF spent almost its entire pre-preferences career arguing that courts should not defer to the racial assignment policies of local school boards.)

A commenter on Ms. Godsil’s post, Astounded, is, well, astounded that the pro-racial assignment forces try to wrap themselves in the integrationist mantle of Brown. He writes (Oct. 12, 3:05PM):

The Board has decided just how many students of each race it would prefer to attend each high school (allowing a small margin of deviation). District staff then assign students to schools by race until the Board’s racial quotas are met. Nothing could be more antithetical to the message of Brown, which is that local officials should not order students to go here or there just because of their skin color!

Ms. Godsil replied (Oct. 12, 4:28PM),

I find the analogy between a city seeking to bring children and youth together and Southern Resistance to Brown inapt to say the least.

Astounded’s analogy, of course, was not between Northern supporters of Brown and Southern resisters, it was between Southern school boards asking for deference to their judgment that racial school assignments were necessary to implement policies they thought best and school boards in Seattle and Louisville making the same argument.

Ms. Godsil’s view requires a belief that there is an invisible codicil to the 14th Amendment, the 1964 Civil Rights Act, and other legislation declaring that racial discrimination is not racial discrimination when those doing the discriminating do not intend to impose any stigma on the victims. (As I’ve pointed out before, however, they conveniently forget this argument whenever they assert that this or that policy is discriminatory because it has a “disparate impact” on minorities.) Moreover, as I pointed out in a comment (Oct. 12, 7:33PM), Ms. Godsil’s argument — that an integrationist motive trumps all ills — is indistinguishable from the arguments in favor of race-based busing to achieve racial balance.

Meanwhile, Astounded, who had been accused in another comment (Oct. 12, 7:08PM) of attempted “hijacking” of the blog because he had taken the trouble of posting a dissenting opinion, was, if anything, even more astounded. He asked Ms. Godsil to please read the 9th Circuit opinion in the Seattle case, noting (Oct. 13, 1:21AM):

The plan does not “bring children and youth together,” it excludes many children from their preferred schools specifically because their skins are not the colors desired by the school board. I don’t think you can finesse that by mere euphemism. Suppose the Board used a lottery (or any other colorblind criterion) instead of racial classification as a “school assignment tiebreaker.” Would that be lawful and Constitutional? Obviously, yes. Suppose they implemented a scheme of sending all white kids to one school and all colored kids to another. Would that be lawful and Constitutional? Obviously, no. Can you really say their actual scheme of deporting some white kids and some black kids from specific schools — on no other basis than their race — is more like the first than the second? The Seattle Board is engaged in racism. It considers race more important than aptitude, more important than proximity (home-to-school), more important than teaching kids to treat everyone equally! There is no logical difference between the Seattle Board’s current policy and the Little Rock Board’s 1950 policy. In fact, the only distinction you can draw, the only distinction anyone has tried to draw, is that the Seattle Board wants a specific mix of races which is not 100/0% in school A and 0/100% in school B, but 60/40% A and 40/60% B.

To the individual student who suffers adverse assignment due to her race, the specific racial mix preferred by the Board is of no interest. The victim of the discrimination suffers when her preferred school turns her away just because of her skin color. You cannot console her by saying that after all, there was a quota for students of her race–too bad it was filled before she got there!

….

The Seattle School District is teaching 10% of its students that in the view of the Board, in the view of local elected government, the students are not distinct human beings — they are just swathes of dark- or light-colored skin with legs….

Very good points indeed.

Moving on, or back, my “Usual Suspects” post linked above mentioned an amicus brief organized by the still pro-busing Civil Rights Project at Harvard that was signed by 550 “social scientists.” Now comes Stuart Buck, who has inflicted heavy, perhaps fatal, damage on that brief. That brief, like the PTA brief of Ms. Godsil, also argues that “integration” requires racial assignment. It does not establish that “segregation” would result from not assigning by race, but rather claims that a vast body of social science supports the overwhelming advantages — amounting to a compelling necessity — of “integration” for minority student development. (Presumably the advantages for non-minorities, if any, in reading, math, etc., either have not been charted or are not deemed relevant.)

Buck looked carefully at some of the academic claims made in the brief and found them so wanting as, in my view, to approach misrepresentation. He notes, for example, that the brief asserts that studies have proven that “‘desegregation’” appears to have a positive effect on reading development,” and, in footnote 39, asserts that the impact, again, of “desegregation” on student achievement (again, minority student achievement), though “modest,” is “substantial” compared to the effects of most other school reforms. (Let’s leave aside for now the question of whether studies of the effects of “desegregation” really have any relevance to today’s Louisville and especially Seattle.) Buck checked the sources cited for these claims, and comments:

But if you look at the source that is listed first in footnote 40, the effect on achievement is significantly less compelling. That source is: Thomas D. Cook, “What Have Black Children Gained Academically From School Integration?: Examination of the Meta-Analytic Evidence,” School Desegregation and Black Achievement, ed. Thomas D. Cook et al. (Washington, D.C.: Department of Education, May 1984).

In that article, Thomas Cook actually found “that reading effects [were] positive but quite small and not educationally significant in all but a few studies.” Id. at 60. Cook then went on to say, “the studies . . . tell us nothing about whether segregation created the Black-White achievement gap, but they do tell us that [integration] by itself will not close it to any important degree.” Id.

The brief cited other chapters of the Thomas Cook book on several occasions, but Buck quotes from a review article about that book that makes the brief’s claims even less convincing:

The volume reveals a remarkable convergence about the fundamental question.

Armor decided that “the conclusion is inescapable: the very best studies available demonstrate no significant and consistent effects of desegregation on black achievement.” Walberg concluded that “school desegregation does not appear to prove promising in the size or consistency of its effect on learning of black students.” Stephan decided that “. . . [T]he magnitude of these effects translates into rather trivial increase of about twenty points on the typical SAT.” Wortman found a “two-month gain or benefit for desegregated students.” Cook decided that all the analyses taken together justified four conclusions: “(1) desegregation does not decrease the achievement of black children; (2) it probably does not increase math achievement; (3) it probably raises reading scores; and (4) the increase in reading scores is somewhere between .06 and .16 standard deviation units or about two and six weeks.”

One of the papers in that book, by Rita Hahard and Robert Crain, was quoted in the brief to support the conclusion that “desegregation” has a stronger positive impact younger students. Buck then notes, however, that the brief “does not mention the fact that Mahard and Crain’s conclusion here was criticized by other researchers in that same 1984 volume,” from which he quotes:

Cook, Armor, Wortman and Walberg all commented on and criticized the validity of the Crain and Mahard contention that desegregation can have a significant effect on black student achievement provided that it begins at the first grade or before. The four agreed that many of the studies upon which Crain and Mahard based this contention had serious methodological flaws, the most important of which usually had to do with the fact that the pre-tests were given to different groups and the fact that pre-and post-tests measured different things, thus making genuine comparisons of the test results impossible. Both Armor and Cook pointed out that when the methodologically-weak studies were eliminated from Crain and Mahard’s analysis, their conclusions were roughly equivalent to the conclusions of the panel.

Buck’s conclusion:

Overall, it seems fair to say that the brief gives an overly-rosy depiction of the very academic research that it cites on the question whether desegregation improves black academic achievement.

“Overly-rosy depiction,” if anything, seems overly generous.

Finally, one very good comment on my earlier post is too good to leave buried in the comments to an old post. I refer to this comment by Hans Bader, who as I mentioned here in discussing the question of deference to local school boards, has himself submitted a strong amicus brief opposing racial assignments. Here is Bader’s comment, a version of which he has also posted here, which I think deserves being quoted here in full:

The amicus briefs filed in support of the school districts’ use of race erroneously argue that the school districts are entitled to deference based either on the Grutter v. Bollinger decision, or, alternatively, pursuant to a tradition of leaving school districts free of judicial oversight in how they treat their students.

Neither contention is persuasive, and as Justice Kennedy observed in Grutter itself, deference is antithetical to the very concept of strict scrutiny.

More recently, in Johnson v. California, 543 U.S. 499 (2005), the Supreme Court recognized that deference and strict scrutiny were incompatible.

Accordingly, the Court in Johnson expressly refused to defer to a prison as to the need for racial classifications even though it conceded that prisons usually receive extraordinary deference in restricting their inmates’ civil liberties (and in spite of the fact that other civil rights’ statutes, like the Americans with Disabilities Act, have been applied in a diluted fashion in the prison context out of deference to prison administrators, see Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994)).

In Grutter, the Supreme Court accorded deference to a university based on academic freedom. The tradition of academic freedom, as opinions in the Bakke and Sweezy cases observe, gives institutions four traditional areas of autonomy, one of which involves selection of their students.

That is not true for school districts, which generally must accept all comers.

School districts, as institutions, do not have a claim to academic freedom, either in tradition or in constitutional law, even though their students and faculty do have free speech rights against such school districts.

Thus, Grutter deference is inapplicable to the school districts whose cases are pending before the Supreme Court, since school districts, unlike colleges, do not have academic freedom.

Even if Grutter had accorded deference based on the academic freedom rights enjoyed by students and faculty as individuals, rather than the academic freedom rights enjoyed by universities as institutions, it would not apply to school districts.

For while free speech certainly does apply in schools, it is not as broad there as it is in college, and is not expansive enough to be termed academic freedom.

The Supreme Court has made this clear by recognizing that freedom of speech is markedly narrower in K-12 schools than in colleges.

While the Supreme Court held that vulgar pamphlets were protected in college in Papish v. Curators of University of Missouri, 410 U.S. 667 (1973), it held that high school students do not have the right to engage in vulgar speech in Bethel School District v. Fraser, 478 U.S. 675 (1986).

As the Eighth Circuit noted in Bystrom v. Fridley High School, 822 F.2d 747, 750 (1987) and the Third Circuit noted in Sypniewski v. Warren County Board of Education, 307 F.3d 243 (2002), high school students do not enjoy First Amendment rights nearly as broad as collegians.

Nor can deference to school districts be based on the supposedly comprehensive nature of their control over students, or a tradition of judicial deference to their having a free hand over their students.

They have less a free hand over their students than public employers have over their employees, yet strict scrutiny applies without deference to public employers under the Supreme Court’s decision in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), which overturned race-conscious faculty job decisions under strict scrutiny.

They receive less deference from the courts than prisons do, and even prisons are subject to strict scrutiny without any deference under the Supreme Court’s decision in Johnson v. California, 543 U.S. 499 (2005).

In their dissent in Johnson, Justices Thomas, Scalia, and Rehnquist argued that since prisons have broad power to restrict the civil liberties of their inmates, and receive extraordinary deference when they do so, they should also receive deference when they use race.

The Supreme Court rejected that reasoning, finding that race is different and that racial classifications are subject to strict scrutiny without deference even when the institution being subjected to strict scrutiny usually gets deference in other context based on federalism or other considerations.

But even if it hadn’t rejected that reasoning, it still would not justify according deference to schools. School administrators have less power to control students’ conduct than do prison officials do with respect to prison inmates, as the Competitive Enterprise Institute amicus brief notes, see id. at pg. 4 & fn. 7; see Beard v. Banks, 126 S.Ct. 2572 (2006). Prison officials do not have to show that speech presents the sort of imminent disruption required for most regulation of speech in the schools under Tinker v. Des Moines School District, 393 U.S. 503 (1969).

More importantly, school administators have much less of a free hand in dealing with their students than public employers do with public employees, yet strict scrutiny applies without deference to public employers who use race. See Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (invalidating race-based employment decisions). (Indeed, even Justice Stevens, who dissented in Wygant, noted that the burden was on the school district to justify its decision).

For example, many public employees can be fired without due process, for good reason, bad reason, or no reason at all. See Board of Education v. Roth, 408 U.S. 564 (1972).

But students are entitled to due process before they can even be suspended. See Goss v. Lopez, 419 U.S. 565 (1975).

Moreover, public employers have much more control over their employees than schools do over their students, since public employers can control any speech by public employees that is not on a matter of public concern, Connick v. Myers, 461 U.S. 138 (1983), whereas school districts cannot prohibit or control student speech merely because it does not address a matter of public concern. See, e.g., Pinard v. Clatskanie School District, 446 F.3d 964, 973 (9th Cir. 2006); Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001).

Thus, the Seattle School District’s race-based student assignment policy must survive undiluted strict scrutiny. It cannot, since it is just a form of racial balancing condemned in Grutter itself. Thus, it is unconstitutional.

By the way, the AALF did file an amicus brief in support of the parents, arguing that the school districts’ use of race is unconstitutional, and that such race-based student assignments harm Asian American students.

With regard to whether or not “desegregation” studies have any relevance to today’s Louisville and Seattle, Bader also posted this comment on SCOTUSblog:

The cornerstone of many of the amicus briefs filed in support of using race in the K-12 cases is the erroneous assumption that any racial imbalance in a city or its schools makes it “segregated.”

But Seattle, a very diverse city with very diverse schools, is not segregated as the Supreme Court defines the term, not by a long shot.

In any event, the Supreme Court rejected the idea that racial imbalances make a school system segregated in cases such as Freeman v. Pitts (1992). Indeed, the Grutter decision those amici rely on cites Freeman v. Pitts for the proposition that “racial balancing” is “patently unconstitutional.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003), citing Freeman v. Pitts, 503 U.S. 467, 494 (1992).

The claim that Seattle’s schools are segregated “rests upon the ‘completely unrealistic’ assumption that” students of each racial group should be represented in each school “in lockstep proportion to their representation in the local population.” Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).

As Justice O’Connor once observed in a ruling by the Supreme Court, “It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988). That’s true in education and housing just as it is in jobs.

The fact that private discrimination may be occurring in Seattle (say, in housing) is not grounds for Seattle’s schools using race.

Under strict scrutiny, the government can use race only to remedy its own past discrimination, not discrimination by private parties. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).

Moreover, even discrimination by the government cannot justify the use of race now unless the discrimination is recent. See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (discrimination that occurred 17 years ago does not support affirmative action today).

Stay tuned….

UPDATE

Stuart Buck has added an extensive update to his post, giving additional reasons why a reading gain of “somewhere between .06 and .16 standard deviation units” should not be regarded as “substantial,” and certainly not compelling enough to justify racial discrimination.

He also cites additional studies of the effects of “desegregation” that could have been cited in the 550 social scientists brief, but were not. One of them, for example, found:

Holding constant the level of neighborhood segregation, we find that the black-white gap in honors and AP participation is wider in cities with more racially integrated schools. This pattern is consistent with claims that ability tracking and related programs offset the integrative effects of between-school desegregation efforts, and may help to explain why differences in school segregation do not appear to influence black relative achievement.

All of this is fascinating, but I still entertain some doubt as to the relevance here of studies of the effects of “desegregation” when there is no reason to believe that the schools of Louisville or Seattle would be “segregated” in the absence of their racial assignment policies.

UPDATE II [14 Oct.]

Hans Bader has posted a comment [Oct. 13, 11:13AM] on Rachel Godsil’s blog, linked above. In it he makes many of the points I’ve already quoted from him, and adds some new ones:

Moreover, as the Center for Individual Rights’ amicus brief notes on page 7, the Seattle schools’ policy actually excludes members of certain minority groups, such as Hispanics and Native Americans, from certain schools even when they are scarce because of the fact that other minority groups, such as blacks, are “overrepresented” in that school…..

This is because it lumps together all non-white minority groups into one undifferentiated mass, contrary to footnote 13 of the Supreme Court’s decision in Wygant v. Jackson Board of Education (1986).

Thus, if there are already a lot of blacks at a school, but no Asians, my Korean-American nephew could be barred from enrolling there, to limit the overall numbers of minorities, even though my nephew’s Korean-language skills and culture might add some diversity to the school.

As the amicus brief of the Asian American Legal Foundation notes, giving schools broad discretion to use race is likely to hit less politically connected minority groups, like Asians, even harder than whites. In the San Francisco public schools, it was Chinese American students who bore the brunt of the school system’s racial balancing policies, and they had to achieve an even higher score than whites or other minorities to gain admission to prestigious schools.

Bader then makes another telling point about the Seattle school board has demonstrated that it deserves deference, a point that I discussed here. Here’s Bader:

Moreover, the Seattle schools have made peculiar claims about race that cast doubt on the wisdom of deferring to their judgment about using race:

They have claimed that:

1. “Individualism” is a form of “cultural racism”

2. Only whites, not minorities, can be racists

3. “Having a future time orientation” (planning ahead) is acting white and placing emphasis on it is racist.

These bizarre claims by the Seattle schools are documented in pages two and three of the Competitive Enterprise Institute amicus brief in the Seattle case.

Whatever amount of deference school boards generally deserve, I think the one in Seattle has demonstrated that what it deserves is very strict scrutiny.