Balkinization  

Saturday, April 15, 2006

The Return of Separate But Equal

JB

The Nebraska Legislature has adopted a controversial new plan that would divide the state's largest school district (in Omaha) into three districts of about 15,000 students each: one predominantly white, one predominantly black, and one predominantly Latino. These three districts, along with several (mostly white) suburban school districts, would become part of a single "learning community," i.e., a federation of school districts that share a common tax base. The learning community would be governed by a board member from each member school district.

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.


Comments:

The immediate concern that comes to mind is checks and balances in a state government system designed in 1930s to become the sole unicameral experiment among state legislatures.
It would be interesting to review the criteria the NE legislature might devise to apply socioeconomic filtering to Omaha's nearby sister city, Lincoln, the latter a notoriously university demographic town.
The point of exercise in Omaha surely relates to the concentration of industry in the capitol, and the residential demographic of its labor supplies.
We are talking about comparing two cities, Omaha with 390,000 pop, Lincoln 225,000. Statewide whites comprised 9/10 of the population, Hispanics slightly more than half of the non-anglo population, subSaharanAfrican ancestry peoples constituting most of the remaining minority component. NE is home to 8,000 aboriginal native americans.
Aside from the sparseness of the population in NE, and its changing agriculturally based economy, some factors could be very revealing elements of the district redrawing you mention in schools. I will take some of your questions to the education websites, and report back. Preliminarily I can supply the datapoint that very recently the unicameral legislature set a precedent by voting to impeach a university regent for political campaign expenditure anomalies at the advice of counsel. Though the districting your post discusses applies to preUniversity students solely within Omaha, viewed statewide NE's pop is 1M, of which 1/4 have college degrees; however, I suspect my own reading of the college graduation data from the census, as there is some indication many of those enumerated in the census actually are out-of-state residents swept into the census during attendance at college within NE.
 

CORRECTION: total state population figure cited = population age 25 and older.
 

Separate but equal is okay?

I think not. Under current doctrine, surely this will be struck down as illegitimately race based.

And, overall, it's a bad idea. Equal funding is great. But, this is still apartheid. Sorry.
 

It's not clear to me what "idea that the public schools belong to everyone" means or the role it plays in this argument. The public schools do belong to everyone in the sense that all voters, at least, have a say in public policy toward education. Moreover, the public schools belong to everyone in the sense that if one lives in a certain district he or she generally can attend the schools in that district. The Nebraska plan, as I understand it, or at least the best interpertation of the Nebraska plan, is designed intrumentally to facilliate education which is inhibited--an empirical claim which must be supported--by the present districting policy. (Of course, it must be empirically verifiable that dominant race districts achieve that goal. But that's the goal.)So precisely what does this louction mean and can it sustain the weight that the argument seems to give it.
 

Oddly enough, if you read the actual bill, nothing in it whatsoever refers to "racially identified school districts and racially identified schools."
 

Stuart, there's nothing odd about that at all. It's par for the course in school redistricting litigation. During the desegregation area, school district lines were often drawn without any mention of race but it was widely understood why they were drawn that way, and courts saw through them.

Obviously one could argue that those cases are distinguishable (or have been overruled sub silentio) but one has to do more than simply point out that the bill doesn't say the "magic words."
 

Sure, but it seems odd to keep reading "racially identifiable," as if the Legislature had officially created a "black" school and a "white" school. In fact, as far as I can tell, the plan wouldn't result in a single student having to attend a different school; it would merely redraw the school district lines to correspond to existing school attendance zones. (Tell me if I'm wrong about that.) I'm not sure why this bill would be viewed as creating any more segregation than currently exists. What's the principle here: It's ok to send blacks to a neighborhood school that happens to be largely black, but it's "segregation" if the school district lines are drawn so that they have more political power?

What's more, on reading comments 21 and 27 here, which seem to be much more informed than the Times reporter, this debate seems overblown. Am I wrong?
 

I should say, "misdirected," instead of overblown.
 

We are definitely moving in this direction in Canada. Black schools are still controversial, but native schools are here to stay. Of course, we have always had schools based on language and religion.
 

This comment is a little late but I just learned of this thread and there is currently at least one injunction preventing the law from going into effect, but here goes anyway.
The Nebraska law taken as a whole is not perfect, but it is an innovative approach to addressing the continuing vestiges of school segregation and the reality of housing segregation. This kind of innovation is necessary in part because of the failure of the United States Supreme Court since Brown v. Board of Education to address the nature of the wrong at the root of segregation. After Brown v. Board of Education, the courts applied a seemingly logical formula for remedying racial segregation: if the wrong was intentional separation, then the remedy must be togetherness in the form of integration. The courts followed this formula despite the fact that the Supreme Court never explicated the nature of the wrong and its relationship to integration. What exactly is integration fixing, and is it enough?


LB 1024 creates a “Learning Community” for Metropolitan Omaha. This super-district encompasses the Omaha Metropolitan area and creates a single tax levy for the whole Community. The property taxes for all of the schools, urban and suburban, are pooled and then distributed among the districts in the Community according to need. The legislation advances integration by encouraging student transfers among all of the schools in the Community.

Thus, Nebraska has done voluntarily what many States successfully fought against for years – using the largesse of wealthy school districts to help integrate and fund poorer districts in the same metropolitan area. The Court held in Milliken v. Bradley that a court could not force the suburban schools in the Detroit metropolitan area to participate in an integration plan with the city schools when there was no demonstration of intentional segregation by the suburban districts. Nebraska law now mandates that the suburbs participate in financing the education of all of Omaha’s children.

By creating three smaller districts within this Community out of the Omaha Public School district, the poorer (minority) schools, acting as autonomous districts, can wage a fairer fight for their share of the tax dollars and exert more control over teacher hiring, curriculum, and other crucial expenditures. Thus, LB 1024 separates financing (done by the whole community) from control (done at the local level) while writing into the law the aspiration and the means for integration through the transfer policy.

LB 1024 is controversial because it violates our deeply entrenched assumptions about how to think about race and education. This legislation has put those assumptions in the spotlight by elevating the issues of money and control over strict integration.

For those who maintain that the wrong imposed by segregation is primarily the inferior education that went along with it and the resulting lack of opportunity that only a decent education can provide, LB 1024 might be worth trying. LB 1024 addresses the wrong, first by providing need-based financing for all of the districts in the whole Learning Community, and second, by handing control of that financing to parents and local officials, whether they be White, African-American or Hispanic. No doubt there remain equity issues in implementing LB 1024, such as how exactly OPS will be divided up, and at what level the tax rate for the Learning Community will be set. Integration is, of course, the ideal for which we must continue to strive and it is provided for, if imperfectly, in LB 1024. But the time has come to focus more on the actual, demonstrable, wrong done to children who grow up with a substandard education because of their race and class, and less on a formula created more than 50 years ago that has little to show for itself.
 

This comment is a little late but I just learned of this thread and there is currently at least one injunction preventing the law from going into effect, but here goes anyway.
The Nebraska law taken as a whole is not perfect, but it is an innovative approach to addressing the continuing vestiges of school segregation and the reality of housing segregation. This kind of innovation is necessary in part because of the failure of the United States Supreme Court since Brown v. Board of Education to address the nature of the wrong at the root of segregation. After Brown v. Board of Education, the courts applied a seemingly logical formula for remedying racial segregation: if the wrong was intentional separation, then the remedy must be togetherness in the form of integration. The courts followed this formula despite the fact that the Supreme Court never explicated the nature of the wrong and its relationship to integration. What exactly is integration fixing, and is it enough?


LB 1024 creates a “Learning Community” for Metropolitan Omaha. This super-district encompasses the Omaha Metropolitan area and creates a single tax levy for the whole Community. The property taxes for all of the schools, urban and suburban, are pooled and then distributed among the districts in the Community according to need. The legislation advances integration by encouraging student transfers among all of the schools in the Community.

Thus, Nebraska has done voluntarily what many States successfully fought against for years – using the largesse of wealthy school districts to help integrate and fund poorer districts in the same metropolitan area. The Court held in Milliken v. Bradley that a court could not force the suburban schools in the Detroit metropolitan area to participate in an integration plan with the city schools when there was no demonstration of intentional segregation by the suburban districts. Nebraska law now mandates that the suburbs participate in financing the education of all of Omaha’s children.

By creating three smaller districts within this Community out of the Omaha Public School district, the poorer (minority) schools, acting as autonomous districts, can wage a fairer fight for their share of the tax dollars and exert more control over teacher hiring, curriculum, and other crucial expenditures. Thus, LB 1024 separates financing (done by the whole community) from control (done at the local level) while writing into the law the aspiration and the means for integration through the transfer policy.

LB 1024 is controversial because it violates our deeply entrenched assumptions about how to think about race and education. This legislation has put those assumptions in the spotlight by elevating the issues of money and control over strict integration.

For those who maintain that the wrong imposed by segregation is primarily the inferior education that went along with it and the resulting lack of opportunity that only a decent education can provide, LB 1024 might be worth trying. LB 1024 addresses the wrong, first by providing need-based financing for all of the districts in the whole Learning Community, and second, by handing control of that financing to parents and local officials, whether they be White, African-American or Hispanic. No doubt there remain equity issues in implementing LB 1024, such as how exactly OPS will be divided up, and at what level the tax rate for the Learning Community will be set. Integration is, of course, the ideal for which we must continue to strive and it is provided for, if imperfectly, in LB 1024. But the time has come to focus more on the actual, demonstrable, wrong done to children who grow up with a substandard education because of their race and class, and less on a formula created more than 50 years ago that has little to show for itself.
 

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