Still Separate, Still Unequal? (Final Thoughts)

by Jonathan D. Becker

categories: Education Politics, law and education, Student Rights

Published August 04, 2009 @ 01:42PM PT

This is the final part in a five part series on race, schooling and educational opportunities. Part 1 can be found here, and Part 2 can be found here, Part 3 can be found here and Part 4 can be found here.]

Fifty-five years ago, the United States Supreme Court declared that providing “separate but equal” educational opportunities to students based on race denied students of color the equal protection of the law. Largely, the holding in the Court’s decision in Brown v. Board of Education has been examined with respect to equity of access to the institution of schooling generally. And, while much of the progress that was achieved by eliminating legally enforced (de jure) school segregation has been erased by de facto housing segregation patterns that beget de facto school segregation, it is also clear that students of color continue to be denied equal educational opportunities within the institution of schooling. That is, while the post-Brown focus was and continues to be between-school and between-district segregation by race, more subtle forms of racial discrimination have persisted and proliferated within schools and districts, even in the most “integrated” schools and districts.

In summary, fifty-five years after the promises of the Brown decision, here is where we stand:

• Today, nearly three out of every four African-American students in the U.S. attends a school that is majority-minority.
• 1 out of every 6 African-American children in the United States now attends a school where less than one percent of the population is white.
• In 1998, African-American students were 59% more likely to be identified as emotionally disturbed than Caucasian students.
• As of 2007, in the state of Virginia, African-American students were 54% more likely to be identified as disabled than other students.
• African-American and Latina/o students are less than half as likely to be enrolled in gifted and talented educational classes and programs as Caucasian students.
• While Internet access in schools and classrooms is consistently good and equitable, access to computers generally is slightly inversely related to the percentage of students of color in schools.
• The frequency with which African-American students use computers in schools is at least as high, if not higher, than other students. However, African-American students are much more likely to use computers to practice or drill on math facts than White students.

These are just a few of the indicators that begin to paint the "still separate, still unequal" picture.  There are additional indicators including differences in access to "high-quality" teachers; differences in access to modern, acceptable physical school facilities; etc.  These differences by race in educational practices and conditions coincide with (likely correlate with) the differences by race in educational outcomes that are so well-documented.

I've long imagined a class-action lawsuit alleging systemic discrimation based on race.  Such a lawsuit would surely be a failure since under the Equal Protection Clause of the 14th Amendment and Title VI, proof of disriminatory effect is not sufficient; there must be intentional discrimination.  Furthermore, as Kevin Welner describes, the U.S. Supreme Court has effectively denied private lawsuits pursuant to the Title VI regulations.  "By a 5-4 majority in Alexander v. Sandoval...the Court concluded that Congress only intended these regulations to be directly enforceable by the Office of Civil Rights—a political body with very limited resources—not by a private right of action."

If we add in Justice Roberts' recent proclamation that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." we are left at a place where policy efforts to remedy discrimination on the basis of race are most certainly doomed. That is, in the wake of Sandoval and the Seattle/Louisville school desegregation case, one would be hard-pressed to imagine an educational policy decision that explicitly considers race as a factor passing constitutional muster.

But, here's the tricky thing.  No Child Left Behind asks education agencies to disaggregate student test scores by race.  Do you think Justice Roberts would rule those efforts unconstitutional?  After all, by disaggregating test scores on the basis of race, we are discriminating on the basis of race, right?

I suppose the argument in support of disaggregation of test data by race is that closing the achievement gap is a compelling state interest, and the means prescribed by NCLB and state-level implementation of those ideas are narrowly tailored.  Well, I would suggest that equality of educational opportunities is a compelling state interest.  As Justice Kennedy wrote in his (sort of) concurring opinion in the Seattle/Louisville case:

Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.

I contend on the basis of the data I report throughout this series that equality of educational opportunity has been denied on the basis of race.  Therefore, we must find appropriate (narrowly tailored?) ways to remedy these disparities.  We must continue to have these courageous conversations.