The Return of Separate But Equal

JB

Originally, the Omaha school district had sought to use its powers to incorporate several of the mostly white suburban school districts. Although the district had no plans to engage in busing, parents in the suburban districts were afraid this might happen. They pressured the legislature to stop the Omaha school district's expansion. The legislature responded by creating a learning community that included 11 school districts, including the Omaha district. Later, at the urging of a black legislator, who sought black control of schools in black areas, the legislature divided the Omaha school district into three racially identified districts. The plan requires a study about how best to promote voluntary integration, and requires that school districts work together to achieve this end, but the bill does not require further integration beyond these aspirational goals.

Superficially, at least, there are things in Nebraska's new plan that advocates of black self-determination, like Clarence Thomas on the right and Derrick Bell on the left, might like. The new school districts all share a common revenue base. At the same time the predominantly black school district will likely be run almost exclusively by blacks. In like fashion, Latinos will control the Latino district and whites will control the white district. However, blacks and Latinos will have only one vote each in the larger "learning community" that would set policy for all the districts.

The NAACP's original push for racial integration was premised on the idea that "green follows white:" The NAACP assumed that whites would never fund separate black school districts as much as they did their own. Hence to ensure that black children received education of equal quality with those of white children it was necessary to integrate the schools. However, in this case the black school district shares the same revenue base as the white district; black families will control how money is spent within the district and black representatives will have some voice in the larger "learning community." So, at least in theory, it looks as if one of the major considerations against separate but equal has been eliminated.

It all sounds great in theory, but in practice the issue is a bit more complicated. What prevents the legislature from changing the deal later on, once the racially identified districts are created? For example, the legislature might put each district on its own financial bottom, so to speak. There aren't enough blacks and Latinos in the Nebraska legislature to stop that later modification. This two step process would essentially produce a group of richer white districts and a poor black and a poor Latino district similar to many other parts of the United States. That might make black and Latino parents and children worse off then when they started. The Nebraska plan makes sense only if black parents can be assured both that the amount of financing going to predominantly black schools will in fact be equal to that going to white suburban school districts and that it can't be changed in the future. Indeed, even under the existing plan the black school district only gets one vote in the "learning community" which means that it can't veto rules that, in practice, might favor white suburban school districts in funding and resources.

Putting aside these policy considerations for a moment, consider whether what Nebraska has done is constitutional. For ease of analysis, let's start with the assumption that the Omaha schools and the suburban schools have reached unitary status-- that is, that they no longer have any legal obligation to remedy the effects of past racial discrimination. The new bill changes the status quo and seems to have both a segregative purpose and a segregative effect. In earlier desegregation cases the state was required to remedy the effects of previous segregative purpose; the Court used various presumptions to put the burden on the state to remedy segregative effects of its policies. When school boards failed to adopt policies that reduced segregation, the argument was that they failed in their duty, and sometimes the school boards lost and sometimes they won.

In this case, however, the school board's policy begins with a deliberately segregative purpose (and effect), even if the purpose can be articulated in terms of allowing minority communities govern their "own" schools. The idea that a set of unitary school systems could be deliberately refashioned and lines deliberately redrawn to create racially identified school districts and racially identified schools seems altogether perverse given the original goals of Brown v. Board of Education. It seems to fly directly in the face of a host of precedents that have never been overruled, including Green, Swann, and Keyes. Even Justice Thomas, concurring in Missouri v. Jenkins, argued that racially identifiable schools were permissible only if they were the result of private choices rather than government policies. Thomas did not claim that state policies which had a deliberate purpose of producing racial segregation were constitutional.

Senator Ernie Chambers, the State legislature's only black member argued that the law was not intended to segregate because Omaha's schools are already segregated due to the fact that housing patterns are de facto segregated, students must attend neighborhood schools, and there is no plan to start busing students again. But this misses the point that the purpose and effect of the law is precisely to carve out black and Latino neighborhoods and place them in separate school districts. How the school district lines are drawn affects the future choices that people will make about where to live above and beyond any effects produced by the current demographics of neighborhoods. The demographics of neighborhoods within a larger multiracial Omaha school district can shift over time, particularly since the district as a whole contains many different types of students and parents of different races have a say in its governance and share equally in its future. By contrast, carving out a "black" school district that maps existing black neighborhoods tends to fix its character as "black" and shapes incentives to move in or out of these neighborhoods. By drawing school district lines to match black neighborhoods, Chambers and his allies in the Nebraska Legislature may have exacerbated the mutually reinforcing effects of school segregation and residential segregation.

Many people have criticized the Nebraska plan as racist. I don't think that's entirely fair. Some whites probably voted for it because they thought it would keep their children from attending school with blacks and Latinos, while some blacks and Latinos may have supported it because they thought it would give them control over their "own" schools; some whites may have supported it for the same reason. But the more important issue, it seems to me, is whether the public school system, or parts of it, should be treated as "belonging" to one race. The public school system should be the common property of all; deliberately designing as a racial spoils system is not consistent with this goal. Justice Thomas has argued that black communities which are largely segregated because of housing patterns (and what he terms "private choices") should have local control like everyone else; but Thomas in particular has denounced the idea that the state should divide up public services or public entitlements by race and award them in a spoils system. That is why he has been so bitterly opposed to affirmative action policies.

In fact, it's interesting to compare Nebraska's legislation with affirmative action policies like the ones the Supreme Court has upheld in Grutter v. Bollinger. The purpose of those policies was integrative-- to ensure a "critical mass" of minorities in what would otherwise have been a largely white law school. The goal of Michigan's affirmative action policy was not to create separate black law schools and Latino law schools within the University of Michigan, and the Court would not have deferred to the law school if it has announced that this was its purpose. Similarly, the Court has upheld a limited use of race in drawing voting district lines not simply because it allows minority communities to be represented by minority representatives, because it produces minority representation in larger integrated governing bodies.

As I have said, I don't think we can reject what Nebraska has done as simple racism. Nebraska's law should be applauded if it in fact secures equal funding for black and white school children and gives black parents real voice in the education of their children, the sort of voice that many white parents have long had. But before we can embrace Nebraska's plan to create special black and Latino districts, we first have to decide whether to give up on the integrative ideal behind Brown v. Board of Education-- the idea that the public schools belong to everyone. I don't think we've given up on it quite yet, nor should we.