Busing Redux and the Misunderstanding of Brown

[NOTE: This post has been UPDATED … twice three FOUR times]

If you think battles over busing to promote racial balance “diversity” are ancient history, you obviously haven’t been paying attention to the ongoing conflict in Wake County (Raleigh), North Carolina’s largest school district. For a long summary, see “Republican school board in N.C. backed by tea party abolishes integration policy” in the Washington Post. (Now hold on. Don’t leap to the conclusion that Stephanie McCrummen, the WaPo reporter, has written a biased, slanted piece based simply on that title. Read the whole article first … and then you’ll have ample evidence for that conclusion.)

For a nice counterpoint to the WaPo article, see two pieces by by John Hood, president of the John Locke Foundation, a North Carolina conservative organization that has followed the issue closely for years: “How We Got Here” and “The FAQs of the Busing Dispute.” Those three pieces provide a more than adequate factual background for the dispute, which is good since I’m not going to.

I will, however, begin by mentioning that busing to achieve racial balance was initially fastened onto the nation by another North Carolina school system, Charlotte-Mecklenburg (at that time the state’s largest), via the Supreme Court’s 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education. In the 1990s some parents angry at the results of Swann filed a lawsuit challenging the exclusion of their children from magnet schools because they were white, and in 1999 a federal district court judge declared that the district (now 40% black) had long-since remedied its segregation and struck down Charlotte’s race-based busing, ordering the school system to stop “assigning children to schools or allocating educational opportunities and benefits through race-based lotteries, preferences, or other means that deny students an equal opportunity based on race.”

Shortly thereafter, “the local school board adopted a new assignment plan that combined neighborhood schools with parental choice within several large assignment zones.” Wake County, however, stuck to its old, county-wide busing program, a huge district that, the WaPo article pointed out,

sprawls [over?] 800 square miles and includes public housing in Raleigh, wealthy enclaves near town, and the booming suburbs beyond, home to newcomers that include many new school board members. The county is about 72 percent white, 20 percent black and 9 percent Latino. About 10 percent live in poverty.

In an attempt to avoid legal challenge the old busing system was now justified as necessary to promote economic, not racial, diversity. The degree to which the new busing differed from the old busing is a matter of dispute, with critics maintaining that nothing really changed, that class was simply a transparent proxy for race, and defenders arguing that students from poor backgrounds do better when dispersed, not concentrated. That question may have become moot, however, when conservatives took over the school board in 2009 and began to replace the county-wide busing with a new system allowing for much greater parental choice and neighborhood schools. They objected to busing whether for racial or economic “diversity,” and have moved to end it.

Predictably, ending county-wide busing has been attacked by civil rights groups and their friends as “turning back the clock” by re-introducing “segregation.” William Barber of the local NAACP said that allowing children to choose to attend their neighborhood schools is “morally wrong … legally wrong … economically wrong,” and McCrummen’s WaPo article quotes NAACP president Benjamin Jealous blaming the Tea Party:

So far, all the chatter we heard from tea partyers has not manifested in actually putting in place retrograde policies. But this is one place where they have literally attempted to turn back the clock.

This quote from McCrummen’s article has itself been widely quoted, and Jealous may well have said it somewhere — it’s certainly the sort of thing he would say — but it appears nowhere in the source McCrummen linked, a Washington Post article about an NAACP chapter in a Maine prison.

What I would like to discuss, however, is neither the motives of the Wake County school board nor the merits of busing versus neighborhood schools — whether the racial or class “diversity” it is said to provide produces greater educational benefits than costs. Local communities are capable of making that choice for themselves, and should be free to do so (and free from hectoring in the national press) so long as what they choose violates no constitutional rights such as assigning students by race. Instead, what I think deserves attention is how liberal politicians and their allies in the mainstream media misuse the term segregation, fundamentally misunderstand the meaning of Brown v. Board of Education, and hence misinform the public time after time about the issues involved in debates over busing like the one in Wake County.

Let’s start with the Washington Post. Last October WaPo reporters Stephanie McCrummen and Michael Birnbaum praised a study of Montgomery County (Md.) schools touting the “benefits of economic integration.”

Low-income students in Montgomery County performed better when they attended affluent elementary schools instead of ones with higher concentrations of poverty, according to a new study that suggests economic integration is a powerful but neglected school-reform tool.

“The idea is easier to apply in areas with substantial middle-class populations,” they continued,

and more difficult in communities … with large concentrations of poverty. Yet it lends fresh support to an idea as old as the Supreme Court’s Brown v. Board of Education ruling in 1954: Segregated schools — in this case, separated by economics, not law — are rarely as good as diverse ones at educating low-income students.

McCrummen makes the same point in her January 12 WaPo article quoted above, describing Wake County as

the center of a fierce debate over the principle first enshrined in the Supreme Court’s 1954 decision in Brown v. Board of Education: that diversity and quality education go hand in hand.

It’s tempting, and almost certainly accurate, to say that neither McCrummen or her editor has actually read the Brown decision. Neither that decision nor any of the briefs for the plaintiffs nor their oral arguments said anything about “diversity,” much less “enshrined” it as a fundamental principle, a fundamental point I’ll return to in a moment.

First, however, let’s note that the Post’s misunderstanding was compounded by an officious letter it printed the day after McCrummen’s article from Secretary of Education Arne Duncan. “America’s strength has always been a function of its diversity,” Duncan begins, and then moves immediately to race: “so it is troubling to see North Carolina’s Wake County School Board taking steps to reverse a long-standing policy to promote racial diversity in its schools.”

Moving from platitude to threat to the predictable call for more “conversation,” Duncan continued:

The board’s action has led to a complaint that has prompted an investigation by our Office for Civil Rights, but it should also prompt a conversation among educators, parents and students across America about our core values.

Note well, however, that Duncan does not believe “our core values” include what Gunnar Myrdal famously called the “American Creed,” the principle that individuals should be treated without regard to race. For Duncan,

[t]hose core values, embodied in our founding documents, subsequent amendments and court rulings, include equity and diversity in education and opportunity. In fact, on Monday we celebrate the life and leadership of Dr. Martin Luther King Jr., whose movement for racial equality inspired a nation and brought us closer to the more perfect union envisioned by our founders.

In an increasingly diverse society like ours, racial isolation is not a positive outcome for children of any color or background….

Apparently for Duncan “the life and leadership of Dr. Martin Luther King Jr.” has nothing to say to us about creating a nation where Americans “will not be judged by the color of their skin but by the content of their character.”

Perhaps one day our Educator-in-Chief and his fellow diversiphiles in the mainstream media will identify “our founding documents, subsequent amendments and court rulings” that sanctify “diversity.” There are, to be sure, some recent court rulings — or at least one, the unfortunate Grutter, but one of them most assuredly is not Brown. Even Grutter, for that matter, did not “enshrine” diversity; it allowed it to be used, at least for 25 years, in certain very circumscribed circumstances and only after other options had been exhausted.

Finally, how odd that Duncan so readily admits what the Wake County critics make such an effort to disguise: that the busing to which they are so devoted is really all about racial balance, with “economic integration” being the camouflage they hope will allow it to sneak in undetected. You’d think the Secretary of Education would know that if Wake County’s prior purpose was what he says it was and still recommends, “to promote racial diversity in its schools,” it would be unconstitutional under the Supreme Court’s 2007 ruling in Parents Involved, which invalidated classifying students by race and using that classification in their school assignments.

Ultimately, however, what is most disturbing about the liberals’ Brown-worship is that they so fundamentally misunderstand their deity. They worship Brown; they worship “diversity”; so they are forced to conclude that Brown sanctified “diversity.” It didn’t.

As Chief Justice Roberts stated in Parents Involved, what the Court held in Brown is precisely what the plaintiffs’ attorneys asked it to hold:

the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race….” As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” [Citations omitted.]

Not only was “diversity” not “enshrined” or even mentioned in Brown, as McCrummen mistakenly claims in her apparently unedited article in the Washington Post; it was even explicitly rejected as a goal by Thurgood Marshall in his oral argument for the plaintiffs. “The only thing that we ask for,” Marshall argued,

is that the state-imposed racial segregation be taken off, and to leave the county school board, the county people, the district people, to work out their own solution of the problem to assign children on any reasonable basis [other than race] they want to assign them on. [p. 47]

What about what came to be called “de facto segregation,” now often referred to, as Secretary Duncan just did, as “racial isolation?” Again, Marshall couldn’t have been more specific about what the Brown plaintiffs sought (and received). “My emphasis,” he insisted,

is that all we are asking for is to take off this state-imposed segregation. It is the state-imposed part of it that affects the individual children. [p. 49]

Because one hears Brown cited so often by liberals as the authority for the necessity of engineering “diversity,” i.e., of classifying and assigning students by race, it is worth emphasizing here that the Brown plaintiffs explicitly rejected this view, despite the contrary view of some of their surviving lawyers, as I discussed at length in Historical Brown-Out.

Regarding Thurgood Marshall’s argument that the plaintiffs sought no more than removing state-imposed segregation and letting local jurisdictions do whatever they chose, so long as they did not use race, Marshall was pressed hard on this point by Justice Frankfurter:

Justice Frankfurter: You mean, if we reverse, it will not entitle every mother to have her child go to a nonsegregated school in Clarendon County?

Mr. Marshall: No, sir.

Justice Frankfurter: What will it do? Would you mind spelling this out? What would happen?

Mr. Marshall: Yes, sir. The school board, I assume, would find some other [non-racial] method of distributing the children…. I think whatever district lines they draw, if it can be shown that those lines are drawn on the basis of race or color, then I think they would violate the injunction. If the lines are drawn on a natural basis, without regard to race or color, then I think that nobody would have any complaint. [47–48]

It is worth recalling what the Washington Post, Secretary Duncan, et al. seem conveniently to forget whenever they discuss parents opposed to busing: the complaint of Linda Brown, Ethel Louise Belton, and the other black children on whose behalf Brown was brought is that they were barred from attending their neighborhood schools because of their race. Even Vera and Darius Swann in Charlotte filed the complaint that ultimately led to Swann v. Charlotte-Mecklenburg Board of Education because their 6-year old son James was refused permission to attend an integrated school that was close to their home.

Finally, it is true that the Brown record is filled with arguments that the Fourteenth Amendment was not intended to and does not prohibit reasonable classification based on race, and that courts, even the Supreme Court, have no business telling states or local school boards how to assign their students. “Your Honors do not sit,” as one attorney put it, “and cannot sit as a glorified Board of Education….” [p. 216]

For more examples, see the transcript of the oral arguments linked above at pp. 51, 56, 134, 137, 141, 215, and 268.

Those arguments, however, were all made by attorneys defending the racial assignment policies that the plaintiffs attacked. They lost. The Washington Post and Secretary Duncan to the contrary notwithstanding, the principle and the core value that Brown “enshrined” is that students (and by extension, others) may not be burdened by the state because of their race — not the contending principle that cities must do whatever is necessary, including imposing burdens on students based on their race, to promote integration.

On January 19 the Post published a letter asserting that maintaining “diversity” is important, “and not just for the citizens of Wake County.… This struggle has become a microcosm of the politics of the entire United States.” I suspect President Obama agrees. That must be why he has renominated Berkeley law professor Goodwin Liu to the Ninth Circuit, since Liu has argued that Brown “unambiguously” stands for the proposition that it is both legal and necessary to classify and assign students by race to promote integration and that ““[n]othing in the opinion establishes or suggests colorblindness as a legal principle.”

So, what was Thurgood Marshall’s argument, chopped liver?

UPDATE

Writing in the Chronicle of Higher Education, Kevin Carey, policy director for Education Sector, praised the rejected Wake County busing program and, like Education Secretary Arne Duncan, did not attempt to disguise the fact that he supported cross-district busing not because it promoted class-based integration but because Wake County has the “two necessary conditions” that allow it to “manipulate the racial composition of [its] high schools.”

Carey, also like Secretary Duncan, seems untroubled by the fact that pupil assignment schemes designed for the purpose of “manipulating the racial composition” of high schools is illegal.

Because most blacks and Hispanics are enrolled in districts with few whites (unlike Wake County with its “almost perfect aggregate racial balance”), many of them in districts that “sit inside larger metropolitan areas that are much more diverse,” Carey looks with favor on cross-district busing, even though that “often means moving students non-trivial distances from their homes to schools and back again every day.”

According to Carey,

a “school district” is basically just a geographically distinct area in which people pay a certain tax rate and make various educational decisions via locally elected representatives.

Carey’s scare quotes around “school district” emphasize what he argues explicitly — that school districts are basically meaningless, artificial contraptions:

If students start crossing district lines in large numbers, the whole concept of “school district” pretty much falls apart, because “district line” doesn’t mean much other than “boundary students can’t legally cross.”

Carey appears blissfully unaware of Milliken v. Bradley, the 1974 Supreme Court case that declared cross-district race-based busing unconstitutional. As Chief Justice Burger noted in his majority opinion,

it seems clear that the District Court and the Court of Appeals shifted the primary focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable.

The trouble with the District Court’s approach, Burger continued in a passage that Mr. Carey would do well to study, is that its “analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn ‘for political convenience.’” Not so, Burger emphatically declared:

Boundary lines may be bridged where there has been a constitutional violation calling for inter-district relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process…. Thus, in San Antonio School District v. Rodriguez, 411 U.S. 1, 50 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decisionmaking, permits the structuring of school programs to fit local needs, and encourages “experimentation, innovation, and a healthy competition for educational excellence.”

But I suppose there’s no reason to be surprised that someone who disregards Parents Involved, decided only a little over three years ago, would also disregard Milliken, decided over 35 years ago. Why let the Constitution stand in the way, after all, when “diversity” is involved?

UPDATE II

Regarding Education Secretary Arne Duncan’s troubling response to what he regards as Wake County’s “troubling” decision to abandon race-based busing, Roger Clegg, as usual, has said much of what I said above … earlier and better.

UPDATE III

Thanks to Terry Stoops and George Leef for their kind words about this post in the John Locke Foundations’s “Locker Room” newsletter.

UPDATE IV [11 Feb.]

A shorter version of this post appeared here on Pajamas Media today.

Say What?