an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Everyone knows that school desegregation is dead. The massive economic and demographic changes of the past sixty years, combined with many public policies, created racial ghettos. Segregated housing patterns and segregating public schooling marched hand-in-hand.
For a brief time, federal courts were responsive to demands for desegregation. But then in Milliken the Supreme Court drew the line at the crabgrass frontier. Court-supervised desegregation continued for a decade or so, but it was largely confined to city limits. Over the course of the 1990’s, the Supreme Court prodded lower courts to withdraw from the field, and withdraw they did. Parents Involved was simply the coup de grace. Racial classification, not racial subordination, was really the evil to be eradicated all along. Attentive scholars now talk of “integration fatigue” among minority groups, and even erstwhile supporters of desegregation say that this particular game is over. But now come two important books from the legal academy urging us not to give up the ghost: Martha Minow’s In Brown’s Wake: Legacies of America’s Educational Landmark (Oxford, 2010), and James E. Ryan’s Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (Oxford, 2010). Both encourage us to keep thinking about what integration means and why it still matters. Both are rife with eloquent lines about the deep connection Brown forged between the quest for racial justice, on one hand, and a capacious vision of public education tied to equal citizenship and belonging, on the other. Both offer impressive reviews of social scientific research documenting the many benefits of cross-race/cross-class desegregation, indeed, for everyone, but particularly for poor, minority kids in the urban centers. In short, both books teach us much about why we should continue to fight. However, it seems to me that neither one adequately addresses the most vexing question, which is not why to fight, but how we might.
Minow’s book takes us on a whirlwind tour of “the enormous influence of Brown in schools beyond race.” Brown’s endorsement of equal opportunity “transformed the treatment of immigrants, students learning English, girls, students with disabilities, and poor students in America’s schools.” It transformed “religion in schools, school choice, and social science evidence about schooling.” Along the way, Minow argues for a revival of “the racial integration ideal.” Integration means “both the side-by-side instruction of students of different races and the creation of school communities with a sense of common purpose and membership bridging different identities, histories, and past opportunities” (p. 2). Authentic integration was always in some sense part of the larger battle against white supremacy (p. 30). For Minow it is a worthy goal in its own right, and not merely one possible means to improved educational opportunity. Minow’s book does not address practical questions about how to get from here to there, however. Ryan, by contrast, does offer an answer to the “yes, but how?” question. Ryan’s answer is interesting in certain respects, but it is also a lifeless one that can’t possibly inform oppositional politics.
“Equal educational opportunity is a foundation principle in our society,” Ryan begins, yet “educational opportunities are far from equal. [They] too often depend on where students live, on how much money their parents earn, of the color of their skin” (p. 1). He then charts the history of school desegregation law and the emergence in the early 1970’s of what he aptly calls “Nixon’s Compromise.” Neighborhood schools were sacrosanct. Poor and minority kids would remain in the cities and would not have access to the suburban schools, but efforts would be made to improve education in city schools (p. 5). Ryan then goes on to review several other major educational reform efforts, including school finance reform, school choice (vouchers and charters), and the now dominant testing and accountability regime. All of these efforts took Nixon’s Compromise for granted. Ryan concludes that “separate will not be equal,” that “separating the poor and politically powerless in their own schools and districts is antithetical to the idea of equal educational opportunity,” and that “the single best solution” to the problem of educational inequality “is greater socioeconomic and racial diversity with each district and school. Integration. . .brings both direct and indirect benefits that cannot be replicated by other reforms” (p. 278; p. 304).
Ryan directly confronts the question of seemingly insurmountable practical obstacles. “Why waste time,” he asks, “fretting about the impossible”? (p. 15). In his concluding chapter, he suggests that change may be coming, “not from legislatures or courts, but from demographics and changes in attitudes about the most desirable places to live and about diversity itself.” He states that
. . .these demographic changes are bringing racial and socioeconomic diversity to the suburbs and more middle-income families back to the city. With these changes come greater opportunities for racial and socioeconomic diversity with schools and school districts. Attitudes and behaviors among young adults aged eighteen to twenty-nine push in the same direction. This generation has embraced diversity as none has before it, which bodes well for future housing patterns (p. 275).
A more favorable political context for school desegregation may be on the way, and so “[a]dvocates. . .should be thinking now about how to nudge these changes in productive directions.” But then it turns out that “advocates” don’t have much to do in Ryan’s account. Ryan proceeds to give us a list of housing and school policy ideas and advice for “middle class suburbs,” “poor suburbs and cities,” “school districts,” and “school district leaders,” and the like. It is these governmental entities and officials that should do this, and should do that. Worse still, in treating demography as opportunity and nudging things in the right direction, Ryan’s overarching theme is that these officials should be very careful to please, so as to hold on to, middle-class families, especially white middle class families. Finally, Ryan is reasonably certain that whatever the process of change might look like, it is unlikely to include courts. Courts have not been reliable partners in the past, and they are even less likely to be helpful in the future.
Like Ryan, I’ve been thinking about the political and legal viability and feasibility metropolitan-wide school desegregation. I’ve recently started working on a book about reformers’ ideologies and strategies in Sheff v. O’Neill, the Connecticut school desegregation case. I think that a close study of this project can yield some new insights about this all-but-lost cause. I plan to structure part of this inquiry as a conversation of sorts between the Sheff reformers’ vision and practices, on one hand, and Derrick Bell’s various criticisms of integrationism and school desegregation litigation, on the other hand. What I am in search of here are some unexamined, alternative possibilities for argument and action.
A coalition of national and local civil rights lawyers filed Sheff in1989. They claimed that Hartford school children were harmed by racial isolation and the concentration of poverty. At this time, ninety-one percent of Hartford students were members of racial minority groups, and, by one commonly used measure, 67% were poor. State laws were implicated in the creation and maintenance of these conditions, the lawyers argued, and state officials had sat idly by while these conditions emerged and worsened. The state was depriving the children of their positive right to substantial equal educational opportunity under the state constitution. In 1996, a closely divided Connecticut Supreme Court more or less accepted the lawyers’ central argument. It held that the state constitution “requires the legislature to take affirmative responsibility to remedy segregation in our public schools, regardless of whether that segregation has occurred de jure or de facto.” The court chose its words carefully. It did not say that there was a right to integration, but only that there was a right to a substantially equal educational opportunity that was not “substantially impaired” by racial isolation and poverty. The ensuing fourteen years have witnessed several reform laws, five trips back to court, two consent agreements (one in 2003 and another in 2008), and some, but not much, actual school desegregation.
Let me briefly share some preliminary thinking about the possible virtues and defects of the Sheff project.
Bell’s famous “Serving Two Masters” piece offered three central criticisms of traditional school desegregation litigation through the mid-1970’s. Bell has reiterated and elaborated on these points ever since. The Sheff effort was to some extent responsive to all three points:
(1) Bell criticized NAACP and LDF lawyers for claiming the authority to speak for all African-Americans in litigation when in fact competing goals and desired outcomes had emerged within African-American communities. Traditional reform litigators often didn’t care much about representing actual, active clients or constituents. In Sheff, the lawyers worked very hard to mobilize and engage in dialogue with clients and constituent activists and groups. This process of community engagement proceeded for over two years before the case was even filed. It was often hard to sustain activism thereafter, but a political prong of the effort still survives, and any such activism within oppressed communities should be seen as valuable in its own right.
(2) Bell criticized the NAACP and LDF lawyers’ commitment to “unconditional” integrationism and by-the-numbers racial balance remedies. School desegregation might be, or it might not be, the best means to what Bell said that the central goal should be—a goal he called “educational improvement.” More fundamentally, for Bell, liberal integrationism made far too much peace with the racism it purported to fight. The liberal litigators seemed to misunderstand the nature of racism and what it would really mean to oppose it effectively, or, perhaps, honorably. In Sheff, reform lawyers and activist placed “equal educational opportunity,” broadly understood to include access to various kinds of “resources,” front and center. Integration was simply the very best means to that end.
(3) Bell criticized the NAACP and LDF lawyers for their legalism, over-reliance on courts as effective engines of change, and neglect of the potential ancillary and indirect positive political effects of litigation activity. The Sheff lawyers and reformers believed, rightly, that they could not possibly achieve their goals without litigation and, probably, without a favorable court decision, but they also knew that court intervention and the implementation of any policy changes depended on political mobilization and political support. They did a reasonably good job on the political side outside of court, under very difficult conditions [more on the particular forms that their political activities took below].
In addition, we can note that Bell’s work has never paid much attention to the potential malleability of legal norms and doctrines or the creative processes through which lawyers and activists might create new legal meanings. In court, the Sheff reformers had to go from needs to rights. This is the project’s greatest success—a stunning transformation of state constitutional norms—even if those norms are, at the moment, for the most part unenforceable. This “success” depended on prior developments in state constitutional law (the state’s school finance case) and a brilliant analogy between those prior developments and this broader attack on racial isolation and concentrated poverty. The Connecticut high court’s opinion in Sheff is the only living example in our history in which a court rejects de jure/de facto distinction. It dispenses with the smokescreen of the state action doctrine (Tushnet, 2008) and imposes an ongoing duty on the state government to pay attention segregation in fact and to keep trying to ameliorate it. [It can be viewed as a return to, and expansion of, Powell’s Keyes opinion. Sure, Powell’s motives were probably bad, and, sure, what he would have given on “violation” he would have taken away on “remedy,” but in retrospect an ongoing governmental duty to care about de facto school segregation would have been a better way to go.]
Sheff is replicable in any state in which the courts have endorsed some sort of right to adequate education, or equal educational opportunity, in the context of school finance litigation. But of course whether it is replicable depends on much more than legal theories or doctrines.
Ideological and Strategic Questions
I see at least two major ideological and strategic questions about the Sheff project, and, by extension, any future state-level efforts along these lines. Each of these questions involves continuities between Sheff and the older civil rights approach to school desegregation, and each one is informed by Derrick Bell’s evocative criticisms:
(1) The first involves the Sheff project’s animating conception of race and racial justice. The Sheff reformers were and are racial liberals. They fully embraced the dominant, liberal post-WW II paradigm about “race relations” (a la Myrdal’s American Dilemma). They saw race as an irrational category that was deeply pernicious and stigmatizing Guinier and Torres (2002) have called this “race as irrational stigmatization.” As historian Thomas Sugrue recently put it, this view rendered racism “as an individual moral and psychological problem: one in the hearts and minds of misguided whites” (2008, p. xxvi). Irrational bias and prejudice could be fought through rational argument and evidence (e.g. in the form of “social science statements” in court or “community education” programs), combined with policies that fostered “inter-group contact” taking place on “equal status terms.” The Sheff reformers remain the children of Gordon Allport. Both their case in court and the public conversation it fostered were laden with damage imagery about “multiple layers of harm” to poor, minority children. Arguably, to focus on the harm done to children is to focus on the consequences of a wrong, and not on the practices that are wrong in themselves (Balkin, 2001, p. 52-53; MacKinnon, in Balkin 2001). Is there a fundamental difference between being wronged and being harmed?
Race as irrational stigmatization also fails to mobilize on the basis of the positive, political side of racial identity—the varied and valued cultural forms that have evolved among minority groups in response to racial oppression and the existential liberation entailed in struggles founded on positive racial consciousness and racial solidarity. Racial solidarity as a resource for political mobilization seemed to be outside the purview of race as irrational stigmatization. Finally, one has to wonder whether race as irrational stigmatization isn’t inadequate to the central form that racial subordination takes today—which seems to be grounded in resource inequality (see Brooks, 2010), and not so much in white antipathy or prejudice. Resource inequality today seems to be as much a cause as it is a consequence of racial discrimination. Changing demographic patterns and changing white attitudes and values (James Ryan’s answer) seem to be quite compatible with ongoing, institutionalized processes of racial subordination. But here one runs headlong into the demands of liberal legal doctrine and legal forms—how could the case be made out in court without the liberal conception of race and a portrait of the damage done to the poor (pitiful) children?
(2) Another deeper continuity between traditional civil rights efforts and the Sheff project involved the specific forms that political action took, and how the Sheff reformers saw the role of law and courts in a process of change. The Sheff reformers admirably sought to engage in ongoing political work in support of their litigation. They envisioned a causal chain of change that ran from politics, to a compelling legal case and court victory, and then to judicial mandates that policymakers would have to obey. Soft political support would create a favorable environment for this entire process. This implicit theory of change was evident, first, in reformers’ steadfast refusal (until 2001) to say anything specific about the particular desegregation policies (or “remedies”) that they wanted to see enacted (that is, to say what they were really fighting for), and, second, in the moderate and educational forms of politics that marked their political activities after they filed the case. The judicial victory eventually came, but the judicial mandates never did.
The Sheff project’s forms of political action were moderate and educational. Their politics was decidedly not a politics of confrontation and protest. Derrick Bell made fun of this “educational” approach to the politics of race—this faith in empathy and enlightenment—in “Racism’s Secret Bonding” (1991, Chapter 8). “Racial data storms” don’t work, at least not unless they are combined with confrontation and protest. My interviews with lawyers and clients revealed that the activist clients were more inclined toward political engagement than were the lawyers (although the lawyers favored and approved of moderate forms of political engagement as well), but that protest forms were not much considered or discussed. Confrontational politics can’t simply be wished into being, of course, but confrontation will not be tried unless it is first considered as a strategic option.
The Sheff case touches on many broad themes of interest to participants in the Constitution in 2020 project, including state constitutionalism and positive rights; legal mobilization theory, and popular and/or democratic constitutionalism; state action doctrine; racism and racial justice; and the evocative work of Derrick Bell.
Balkin, Jack, ed. 2001. What Brown v. Board Should Have Said. New York, NY: New York University Press.
Balkin, Jack, and Reva Siegel, eds. 2008. The Constitution in 2020. New York, NY: Oxford University Press.
Bell, Derrick. 1976. “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” Yale Law Journal, Vol.85, p. 470.
-----. 1991, Faces at the Bottom of the Well: The Permanence of Racism. Basic Books.
Brooks, Roy L. 2009. Racial Justice in the Age of Obama. Princeton, NJ: Princeton University Press.
Guinier, Lani, and Gerald Torres. 2002. The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy. Cambridge, MA: Harvard University Press.
Sugrue, Thomas. 2008. Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North. New York, NY: Random House.
Tushnet, Mark. 2008. “State Action in 2020,” in Balkin and Siegel
Michael Paris is Assistant Professor of Political Science at the College of Staten Island, City University of New York. You can reach him by e-mail at michaelpari at gmail.com Posted
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