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Mister Roberts’ Neighborhood

I believe this decision will be seen as shameful and very
hard to explain in the future.

It’s a new day in the neighborhood.  With Mr. Roberts at the helm the Supreme Court is tacking starboard.  Given the number of 5-4 opinions there are likely to be course corrections a few years down the road.  In the meantime, however, we live in Mr. Roberts’ neighborhood.  In Mr. Roberts’ neighborhood, a landmark court decision that inspired integration efforts is cited in a ruling against integration efforts.  In Mr. Roberts’ neighborhood, racial isolation in schools could not be addressed by taking race into account in the school’s admission policies.  Fortunately, Mr. Kennedy has yet to take up residence in Mr. Roberts’ neighborhood.

The Supreme Court’s opinion in the voluntary integration cases out of Seattle and Louisville will not foreclose the use of race in student assignments, especially with Justice Kennedy’s leavened concurrence.  But it will make it extremely difficult to design a race-based program that survives judicial scrutiny, even one in which the racial basis is one factor among many.  In the view of the plurality opinion written by Roberts, any program that requires a school or school district to deny a student admission to a program because of that student’s race is unconstitutional.  Kennedy did not join the plurality.  In a concurring opinion, he wrote,

The plurality opinion is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race. In administering public schools, it is permissible to consider the schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.

The Roberts-led plurality apparently believes that no student should ever be denied access to a program on account of the student’s race and would find any program that turned away a single student on that basis unconstitutional.  Kennedy does not go that far.

The opinion is 185 pages long, including concurrence and dissent, and will require some time for those of us in the legal and education professions to digest.  At this point there are more questions than answers, among them the following:  Is the nation ready for this ruling?

My personal belief is that the nation is not yet ready.  The reason is we are lacking the cultural proficiency that the new millennium commands.  Diversity is not just a value, or a virtue, or a pie chart.  It’s the recognition that successful competition in the global marketplace of the 21^st century requires unprecedented cultural and racial agility on the part of its participants.  I don’t know if the schools in Mr. Roberts’ neighborhood will produce those kinds of competitors.

Race and economics are still the primary predictors of success in American schools.  It’s hard to imagine changing that unfortunate fact without programs that target racial minorities.  In fact, it’s impossible, which is why many programs that target at-risk minority students will be unaffected by the ruling.  The ones that will likely be affected are academic enrichment programs, such as magnet programs, that give a preference to students most likely to be in need of the programs.  If the students in need are mostly students of color, logic suggests that students of color be given a preference in admission.  That preference is not allowed in Mr. Roberts’ neighborhood.

While the dust will take time to settle, I suspect that schools and school districts across the country will examine any voluntary integration plans that could result in a single student being denied admission to a program on the basis of race.  Obviously, if no student is denied admission, no parent is in a position to file a lawsuit over the denial. 

That will reduce lawsuits in the short term.  In the longer term, however, racial isolation left unaddressed will provoke lawsuits because the racially identifiable schools will almost certainly have lower achievement scores.  And the Supreme Court will have to tackle the question of whether racially identifiable schools could ever be equal as well as separate, which means that we will eventually wind up back at Brown vs. Board of Education, back at the point of beginning, just as though we had not learned anything the first time around.

Chief Justice John Roberts is presiding over the déjà vu Court, putting history in rewind and leaving it to future courts to clean up the mess when the ribbon jumps the spool, as inevitably it will.  In the meantime, those of us tasked with advising educators will do the best we can under the circumstances and keep our eyes on the prize:  equal educational opportunity for all.

© June 28, 2007 by Mike Tully 

All content on this page © by Mike Tully