Clegg, 6:00 a.m.:

On December 4 the Supreme Court heard oral arguments in two cases — one from Louisville and one from Seattle — that challenge the constitutionality of race-based student assignments in K-12 public schools. Both school systems limit the degree of choice that students have by telling them that they cannot elect to go to a school where there are already “too many” of their kind.

I’m going to go straight to what is the key legal issue in the case: Since it is uncontested that the two school systems are engaging in racial discrimination--that is, that for many students the choice of where you can attend school depends on your skin color or what country your ancestors came from--the constitutional question the Court must answer is whether this use of race and ethnicity is narrowly tailored to a “compelling” interest.

It is important to bear in mind, in other words, that the issue is not whether having racially balanced schools is a good thing or a bad thing: The issue, rather, is whether racial balancing has such a “compelling” justification that it excuses racial discrimination.

The Court should rule that there is no such compelling justification for the school systems’ racial balancing, for three interrelated reasons.

First, while the school boards assert that racially balanced student bodies yield educational and other societal benefits, the social-science data on which they rely are controversial and disputed. If the benefits are not certain, but only possible, then their value must be accordingly discounted.

If the social-science evidence put forward here is accepted as sufficient to establish a compelling interest, then rest assured it will be put forward to justify racial balancing in many other contexts (employment, housing, the makeup of various public boards, and jury selection, to name just a few). There are few government functions that cannot be described as rooted in some interest that seems “compelling,” and it will always be possible to find some social scientist who supports the notion that the consideration of race will improve that function.

Second, at best the benefits asserted are only marginal. That is to say, it is not — and could not be credibly be — asserted that effective education of K-12 children is impossible without racial classifications and racial balancing. The overwhelming majority of school districts do not (and most, for local demographic reasons, could not) use race-based assignments to ensure that every classroom “looks like America,” and yet they are able to educate children well. Rather, the assertion can only be that education is marginally improved by some uncertain and unknowable degree as a result of these classifications and preferences. Furthermore, the marginal improvement will take place only in one part of the school’s educational mission. Most of what is taught and learned--you know, arithmetic and stuff like that--will not be affected at all by the skin color of student A that student B is sitting next to.

Putting together the first and second points: Education may be a compelling interest, but a one in three chance of achieving at best a small improvement in one part of the school’s educational mission is not.

Third, the inherent costs in classifying children by their skin color and treating them differently on that account are overwhelming, and cannot be eliminated by any amount of so-called narrow tailoring. The high costs of telling schoolchildren that they will or won’t be allowed to attend the school they like, depending on their skin color, include the facts that:

• such preferences are personally unfair;
• they set a disturbing legal, political, and moral precedent in favor of allowing government discrimination;
• they create resentment;
• they teach racial essentialism--that is, that racial identity is very important and tells us something very significant about a person;
• they encourage the embrace and exaltation of such a racial identity, as well as a victim mindset;
• they get government actors involved in unsavory activities like deciding which racial and ethnic groups should be “counted” and how, and how one determines authentic group membership (note that, in these cases, Seattle decided that the two relevant groups were “white” and “nonwhite,” while Louisville decided that the two groups were “black” and “nonblack,” so Asians, Hispanics, Native Americans, Arab Americans, etc. were treated as honorary blacks in Seattle but honorary whites in Louisville);
• and, of course, if race is being used to determine school assignments, then other, neutral, fairer factors are not being weighed, or are being weighed less.

All of these are significant costs.

In particular, the notion that the way to teach students that race is an irrelevant characteristic and that racial essentialism is a bad thing is by the government assigning students on the basis of race is self-contradictory, indeed ludicrous. The lesson that we ought to be judged as individuals, not according to skin color, is an important one, but it can be taught well — better, in fact — without hypocritically sorting students according to skin color in order to achieve some particular degree of “balance.”

This lesson of treating all races with respect is, after all, not complicated and permeates our textbooks and popular culture; next week we will be celebrating our national holiday dedicated to a man whose life was devoted to that proposition; our Constitution and federal and state laws reflect it. The lesson can be learned by students in overwhelmingly white schools in Idaho and overwhelmingly black schools in the District of Columbia, and there is no reason to think that it cannot be learned by students in Seattle and Louisville schools that are X percent “nonwhite” or Y percent “nonblack,” respectively.

I hope that readers will keep their eye on the prize during the debate this week: The issue is not whether racially balanced schools are good or bad--the issue is whether such balance is so valuable that it justifies racial discrimination.

Olchefske, 3:20 p.m.:

For the benefit of the Edspresso readers, let me describe my connection to this issue and my role in this debate. I served as Superintendent of Seattle Public Schools from 1998 to 2003, during which time the district developed and implemented a choice-based student assignment plan that utilized a race-based “diversity tiebreaker” for over-subscribed schools. In 2000 or so we were sued by a set of white parents who claimed the district’s use of the diversity tiebreaker precluded their children from attending a school of their choice. The district has successfully defended its use of the tiebreaker in the Washington State Supreme Court and lower federal courts, and then was party to last month’s arguments in the U.S. Supreme Court.

So, while my work at the American Institutes for Research occasionally involves student assignment issues, I am participating in this debate primarily in my former role as Superintendent of Seattle Public Schools and as a strong personal believer in the role of racial diversity in excellent K-12 education.

I want to be clear at the outset of this debate regarding the specific provisions of the school districts’ student assignment plans that are in contention. I am not dwelling on these provisions for technical “wonk” reasons; instead, I want to make sure that we understand that we are not debating the mega-issues of affirmative action, nor are we re-arguing Brown vs. the Board of Education. Instead, the case in the Supreme Court and the topic of this debate is the question of whether or not a school district can and should use the race of students in school assignments as a means of increasing the diversity of the school’s student body.

Some background on Seattle: The Seattle student assignment plan is an open-choice plan, which truly means that any student can choose among any of the districts 100 or so schools to attend. As long as there are seats available in the school, every student that chooses a school will be admitted, regardless of race, residential location or any other factor. This choice process works perfectly for a wide variety of families: every year something like 80% or 85% of parents get their “first choice school” and over 90% get their “first or second choice school” through this process.

The problem arises only when more students choose a school than there are seats available. For example, 400 students choose the ninth grade in a high school that only has room to serve 300 kids. The question for the school district to answer is, in simplest terms: which 300 students get the seats and which 100 students have to go to another school? What is a fair and educationally sound policy that can determine the answer to this question? How do you “break the tie” of students with an equal claim to a seat? A school district cannot run away from this question; it must answer the question to effectively operate its schools.

School districts already use a number of techniques to decide answer this question. Some simply use a lottery; others have used a variety of techniques such as residential boundaries, sibling preferences, distance tiebreakers, etc. In Seattle’s case, our School Board felt it was important to utilize tiebreakers as a means of creating a student body that would maximize the educational value of the school to its students. After a lot of public discussion, we arrived at set of tiebreakers that gave clear benefit to:

• Siblings of students already attending the school.
• Students that would help racially diversify the school.
• Students that live close to the school.

So, I think Roger misstates the issue when he says “Both school systems limit the degree of choice that students have by telling them that they cannot elect to go to a school where there are already “too many” of their kind.” This is simply not a true statement. Seattle’s plan does not limit the degree of student choice; in fact, it maximizes choice to get as many students into their “first choice school” as possible.

Further, I do not agree with Roger’s characterization that the use of a diversity tiebreaker is a form of racial discrimination.

• Is the district discriminating against families who live further away from the school?
• Is the district discriminating against students who do not have siblings at the school?
• Is the district discriminating against students who are not helping to diversify the student body?

In a technical sense, the answer to all three questions is “yes”, since the district is absolutely using these criteria to determine which 300 students get into the school. But in any policy context, the answer to all three questions must be “no”, because the district is doing what it is required to do to determine which students get the 300 seats and which ones don’t. The tiebreakers are simply the vehicle to accomplish this determination based on the local community values.

The overarching value expressed in the diversity tiebreaker is the educational value that a student receives by attending a school with a diverse student population. In a few predominantly minority schools in Seattle, white student benefit from the diversity tiebreaker; in a few predominantly white schools in Seattle, students of color benefit from the tiebreaker. In both cases, the clear goal is to select from the pool of students that have already chosen the school to create a student body which will provide the best possible educational environment for the enrolled students.

To me, this is exactly what a school district should do in answering the question regarding which 300 students should get seats in a school. Districts’ use a “sibling” tiebreaker because they believe in the educational value of keeping families together; districts’ use neighborhood attendance zones because they want to reinforce the school’s connection to the local community; and districts use a diversity tiebreaker because they believe in the educational value of a diverse learning community.

This is what School Boards are elected to do, to reflect their local community’s values in the policies and practices of the communities’ schools. The School Board in Seattle valued diversity in its schools as part of its educational strategy and created the tiebreaker to accomplish that goal.

Like Roger, I also hope that readers will keep their eye on the prize during the debate this week: The issue is that diverse schools are better learning environments for kids and that it is incumbent upon school districts to make use of the limited tools available to them to create learning environments that will best serve the needs of today’s students.

Clegg, 11:59 a.m.:

Now that the debate is engaged, let me follow Joseph’s lead by doing some full disclosure. My organization, the Center for Equal Opportunity, opposes the use of racial and ethnic preferences. No surprise. With the Pacific Legal Foundation, we filed amicus briefs urging the Supreme Court to grant review in the Seattle and Louisville cases and, having been successful in that regard, also joined PLF in filing an amicus brief in each case on the merits.

I’m happy to accept Joseph’s basic description of the Seattle choice plan, and even prepared to stipulate that it’s perfectly reasonable and fair—except for one thing, namely that it discriminates against some students on the basis of their skin color or national origin.

I said in my initial posting that Seattle “limit[s] the degree of choice that students have by telling them that they cannot elect to go to a school where there are already ‘too many’ of their kind.” Joseph says that this “is simply not a true statement.” Sorry, but it certainly is—as Joseph admits a few paragraphs later: He concedes that in some “predominantly minority schools in Seattle, white student [sic] benefit from the diversity tiebreaker,” and that in some “predominantly white schools in Seattle, students of color benefit from the tiebreaker.”

Joseph claims, quite implausibly, that the “diversity tiebreaker,” as he calls it, is not “a form of racial discrimination.” The reason is “because the district is doing what it is required to do to determine which students get the 300 seats and which ones don’t. The tiebreakers are simply the vehicle to accomplish this determination based on local community values.”

I’m sorry, but this simply makes no sense. It’s always useful, I think, to put the shoe on the other foot. Suppose that someone were using a politically incorrect tiebreaker—that is, suppose that Seattle said that, all other things being equal, it would give a preference to students who were the same color as most of the other students in a particular school. Wouldn’t it still be the case that “the district is doing what it is required to do to determine which students get the 300 seats and which ones don’t”? Wouldn’t it still be able to claim that, as a duly elected school board, it was making its “determination based on local community values”?

Really, Joseph, let’s not get hung up on this point. No one denies that the school board is engaging in racial discrimination here. Students are being classified according to skin color and treated differently on that account. Two students living next door to each other will have different choices in which schools they can attend, simply because of their respective races. No one, as I say, denies this—including you, Joseph. The only question is whether this difference in treatment is lawful. You think the discrimination is justified, and I think it is not, but discrimination it is.

Joseph thinks that the decision to adopt the race-based assignment part of this program is fine: “This is what School Boards are elected to do, to reflect the local community’s values in the policies and practices of the communities’ schools.” This is true—except, again, for one thing, namely that school boards must obey the U.S. Constitution, which forbids racial discrimination absent a “compelling” justification.

No doubt the Jim Crow system in the bad old days reflected local community values back then, and no doubt the Supreme Court was right to strike it down. I’m not suggesting a precise moral equivalence between those school boards and Seattle’s; my point is just that it won’t do to say that a school board’s decision to sort children according to race must be upheld so long as it reflects local community values.

All of which simply brings us back to the critical question in this case: Whether there is a “compelling” justification for the racial sorting and assigning by Seattle and Louisville.

So far, all Joseph offers is his assertion of “the educational value of a diverse learning community” and that “diverse schools are better learning environments for kids.” This simple and undocumented assertion, I am afraid, falls far short of the compelling justification that is needed for something as divisive and unfair as racial discrimination. I hope that Joseph will offer more than this before the week is out.

Now might be a good time to address part of this website's introduction to our debate: "Does the practice [of race-based student assignments] further the interests of integration as laid out in Brown v. Board of Education, or is it unconstitutional? And if the Supreme Court strikes down the programs, would it set back progress made by Brown?"

The principle established by Brown was not that there ought to be "integration" to this or that degree, but that schoolchildren should not be assigned to schools on the basis of skin color. Accordingly, if the Supreme Court is to vindicate Brown, it must tell Seattle and Louisville that what they are doing is unconstitutional. The "progress made by Brown" is not having X percent students of this color and Y percent students of that color in a school; rather, the progress it made was in eliminating racial discrimination by school districts--which is what Seattle and Louisville are engaging in.

Olchefske, 1/10, 5:18 a.m.:

One challenge in participating in a debate on this topic is that you are tempted to start debating the legal aspects of the case. Let me make one thing very clear: I am not a lawyer and I don’t pretend to be one. There were some very high-priced lawyers at the Supreme Court last month that argued the legal merits of this case, and neither Roger nor I can do a better job than they did, especially since we only have an 800 word limit for each round of this debate.

As a result, I am not going to debate legal issues here; instead, I think this debate should focus on the policy issue of whether or not the use of race-based student assignment practices as a means of increasing school diversity is the “right thing to do” to better serve today’s generation of students.

In many ways, this is a variation on Roger’s “compelling interest” question, with the only exception being that I am not going to argue the constitutionality or non-constitutionality (if that’s a word) of this question. I can only argue the “compelling interest” question as a parent, as a superintendent and as a citizen, but certainly not as a constitutional lawyer.

This question was clearly the question that the Seattle School Board considered in approving the use of a race-based tiebreaker in its student assignment plan in the late 1990’s. I am sure some variation of this question has also been debated in Louisville and any number of other school districts: should the district take active steps to increase the racial diversity of its schools as a means of better serving its students? In short: is this the right thing to do?

Clearly, my answer to this question is “yes”. I do believe that increasing the racial diversity of our schools is good for students and good for our society. However, I do not come to this belief because I think diversity has some kind of dramatic impact on student achievement.

I have never seen any thorough research that convinces me that students in more racially diverse classrooms perform any better – or any worse, for that matter – than students in less diverse classrooms. I would be interested to know if any readers of this debate would like to suggest a report or two on this question.

I am also not aware of any research that suggests that a diverse classroom does a better job of reducing the achievement gap. I have always detested the not-so-subtle racism in the argument that is sometimes made in support of school integration that says that the achievement of African American students will somehow improve by being in schools with higher performing white students.

As a result, I do not think the strongest argument for the value of school diversity is based on a measurable, test score-based argument. Instead, to me the argument for a school district to actively foster diverse learning environments for students rests on the social and interpersonal benefits that are created for students and our school communities when students of differing races, classes and cultures come together in rich learning environments.

The society that our children will be entering is more diverse, more pluralistic than we have ever in our history. The major societal conflicts that shape today’s world are all driven by our collective inability to reach across the social divides of culture, class, religion and geography. By increasing the diversity of our schools, we are creating environments that, in some small way, can help students to develop skills to bridge these divides and ultimately be better citizens of the 21st century.

So Roger, let me then turn this question on you. If, as you argue, school districts should not actively promote increased racial diversity in schools, then we will inevitably be heading towards a world of greater separation of students by race, class and culture. More students will graduate into adulthood having attended school only with students similar to themselves, and then somehow be expected to function in an increasingly diverse and pluralistic world.

So then, what is the “compelling interest” in fostering a world like this? I know you don’t want to label kids by racial category and you think that it is discrimination, but why is this vision of the future somehow going to create a better learning environment for kids and ultimately lead to a better world? I just don’t see it.

Clegg, 8:54 a.m.:

Today I’d like to make three points: The first is one on which Joseph and I agree, and the other two are ones on which we disagree.

1. I’m glad that Joseph rejects, as I do, the “not-so-subtle racism in the argument that is sometimes made in support of school integration that says that the achievement of African American students will somehow improve by being in schools with higher performing white students.” I would add that, while there are plenty of social scientists who make such arguments, their evidence is challenged by social scientists on our side (see, for instance, this brief filed in the Seattle case).

2. So, I’m glad that Joseph rejects that argument. Instead, however, he rests his support for race-based student assignments “on the social and interpersonal benefits that are created for students and our school communities when students of differing races, classes and cultures come together in rich learning environments.” He argues that racial balancing helps ensure that “students [will] develop skills to bridge these divides,” and that, unless we deliberately assign students to schools on the basis of race, “we will inevitably be heading towards a world of greater separation of students by race, class and culture.”

Well, Joseph, that all sounds very nice, but I think we’ll need some specifics.

The first point I would make in response is that, even if there are some “social and interpersonal benefits” to diversity achieved through discrimination, we must also consider the heavy costs that are inevitable when we engage in such discrimination--when we tell a child that she cannot go to the school she would like because she is the wrong color. I catalogued those costs on Monday’s blog, and so I won’t repeat them here.

Second, I think that the benefits Joseph sees are greatly exaggerated. In particular, the notion that the way to teach students that what we have in common as human beings is more important than our external differences--that character is what matters, not skin color, and that racial essentialism is a bad thing--is by the government assigning students on the basis of race is, as I said earlier, not only self-contradictory but ludicrous. The lesson that we ought to be judged as individuals, not according to skin color, is an important one, but it can be taught well — better, in fact — without hypocritically sorting students according to skin color in order to achieve some particular degree of “balance.”

As I also said before, this lesson of treating all races with respect is, after all, not complicated and permeates our textbooks and popular culture; next week we will be celebrating our national holiday dedicated to a man whose life was devoted to that proposition; our Constitution and federal and state laws reflect it. The lesson can be learned by students in overwhelmingly white schools in Idaho and overwhelmingly black schools in the District of Columbia, and there is no reason to think that it cannot be learned by students in Seattle and Louisville schools that are X percent “nonwhite” or Y percent “nonblack,” respectively. The suggestion that, unless school boards aggressively assign students according to race, many of them will grow into adulthood with no notion that they live in a multiethnic society and no notion of how to “function” in it is, again, ludicrous.

More fundamentally, it cannot be assumed simply from a child’s skin color that they are from a different cultural world that other children will need “skills” with which to build a “bridge.” Moreover, with so many ethnic groups in America now, why divide students only into “white” and “nonwhite” categories, as Seattle has done?

Anyway, Joseph, I look forward to your spelling out exactly what “skills” can be taught to bridge what “divides”--and why they can be taught only in classrooms that are racially balanced to the nth degree.

Let me also suggest that perhaps part of the problem here is generational. Joseph and I are both old enough to have been alive, at least, during the time when African Americans, in particular, were systematically discriminated against and were no better than second-class citizens. That is not a world that any longer exists. Yes, there is still discrimination--there will always be bigots--but the chasm between white and black that once existed no longer does. The racial disparities that once existed have greatly narrowed and are no longer principally the product of discrimination. I know that among many it is an article of faith that America remains segregated--in housing and in education--but that position is, in think, effectively refuted by Abigail and Stephan Thernstrom in their landmark 2003 book, No Excuses: Closing the Racial Gap in Learning. If I told my teenage son and his friends that they need “skills” in order to “bridge” what “divides” them, they’d all think I was crazy.

3. Finally, Joseph also says that, since he is not a lawyer, he is going to ignore the fact that the Seattle and Louisville school districts are required by law to show a “compelling” interest in favor of discrimination; instead, he says it is up to me to come up with a compelling interest against the benefits he sees in having a politically correct racial and ethnic mix in classrooms.

Well, I’m happy to spend the rest of this week simply arguing about whether race-based student assignments are “the right thing to do,” as Joseph says, but I hope that our readers out there in the real world will bear in mind that there is an enormous burden of proof that the law, quite rightly, places on any school board that wants to use racial classifications and discrimination. Such a school board has to do much more than just tell a judge that it believes such discrimination is “the right thing to do”; it must prove that it has a “compelling” interest in that discrimination--the strictest standard the Supreme Court has--and that there is essentially no other way it can achieve that interest.

Olchefske, 5:24 p.m.:

I began my last commentary by making it clear what I am not – I am not a lawyer. Let me begin this commentary by describing at least one thing that I am – I am an educational practitioner who has served as superintendent of a large urban school system. This is important because it impacts how I approach the school diversity issue and it helps to explain some of the differences in viewpoint between Roger and me.

First, as a superintendent you realize that, even with all your presumed authority, you rarely have the ability to make an either/or, all-or-nothing decision. Instead, you work to make decisions that help move your district toward a set of long-term goals. In reading Roger’s last commentary, I fear we are slipping into a false either/or decision: i.e. either school districts are going to be precluded from making any race-based assignments, or they are going to make every assignment based on race. This is obviously a false choice and I hope the readers see it as that.

As I described in my first commentary, the Seattle assignment plan can generally be described as a choice-based plan that utilizes a race-based tiebreaker only in a few over-subscribed schools. By design, its goal was to increase diversity in this small set of schools that were some of the most racially over-represented in the city. To talk in legal terms for a moment (even as a non-lawyer), the use of the diversity tiebreaker was “narrowly tailored”.

Similarly “narrow” approaches have been used by other urban school districts that have considered using a race-based mechanism as a means for increasing school diversity. I am not aware of any district that is actively seeking the broad-based use of a race-based mechanism to dictate large portions of the districts’ student assignments. So, as a practitioner, I think the fear expressed by Roger and others about the wholesale use of these mechanisms is unfounded.

Second, any urban educator is painfully aware of the debilitating and pernicious impact of race and class in America’s schools. I think our country should be proud of the progress we have made in race relations over the last few decades, but for Roger to say that “The racial disparities that once existed have greatly narrowed and are no longer principally the product of discrimination” is completely out-of-step with the daily realities of millions of Black and Latino Americans.

One of the wonderful parts of my experience as superintendent was working very closely with educators from a rich array of cultural and racial backgrounds. In my many personal conversations with them, they described in intimate and gut wrenching terms the devastating impact of America’s racial divide on their students and on themselves.

When Roger writes: “the lesson of treating all races with respect is, after all, not complicated”, I am left to wonder if he has spent much time in an urban high school recently. My view (and the view of most educators) is that this lesson is incredibly complicated and can only be learned with real people in real life settings.

We cannot wish this problem away. We also can’t legislate the problem away. We need to take active steps to foster greater, not fewer, connections in our schools for students of differing backgrounds. We need to give school districts a few tools to increase school diversity so that schools can be an increasingly important part of the solution to this issue.

Third, I find it troubling that Roger has not yet laid out any argument for why his vision of more polarized, more culturally-separate schools is a better outcome for the students of this generation and for our society as a whole. Will our young people be better citizens? Will they be better prepared to navigate the complexities of the 21^st century?

I have directly answered the question about why I believe it is better for school districts to take active steps to increase school diversity. I’ve read that Roger does not like the race-based techniques school district use to accomplish this goal; I’ve also read that he doesn’t think that this goal is worthy enough to warrant the negative consequences of racial labeling and “essentialism”.

But, what I haven’t read is why Roger believes the world will be a better place when we take active steps to minimize the diversity of our schools. I certainly don’t think it will be a better place, but I want to hear out Roger on this question.

I have made my “compelling interest” argument, now let’s hear yours.

Clegg, 8:53 a.m.:

Joseph begins his blog yesterday by protesting that most of Seattle’s school assignment decisions are not on the basis of race, and I’m sure that’s true. But hundreds of students, at a minimum, *are* being denied their choice of where to attend school on the basis of race, and it doesn’t help them to say that some other students are not. According to the Seattle school board’s brief, about 10 percent of initial high-school assignments are determined by race; as the plaintiffs point out in their brief, “that represents over 300 instances of discrimination” in one year alone. And as plaintiffs then add, quite correctly, “Each such student was denied a benefit made available by the government (attendance at her preferred school) solely because of membership in a racial group.”

Joseph ends his blog yesterday by demanding that I explain why I “believe[] the world will be a better place when we take active steps to *minimize* the diversity of our schools.” (His emphasis.) Well, that’s not going to happen, because I *don’t* think the world would be a better place if school districts were taking active steps to minimize diversity.

You see, Joseph, I don’t think that schools should be taking steps to minimize diversity for the same reason that I don’t think they should be taking steps to increase it. I think that educators like you should not be taking steps with an eye on the racial and ethnic bottom line, either way. Just treat students without regard to skin color. Is that so difficult, and is it so difficult to understand that that’s my position?

It’s important to bear in mind that making school assignments on the basis of race in order to help ensure “a better outcome for the students of this generation and for our society as a whole”—as you urge—is a dangerous, two-edged sword. When racial segregation was challenged in the 1940s and 1950s, the “better outcome for the students of this generation and for our society as a whole” was made by social-science experts on behalf of the *proponents* of segregation.

For instance, in Davis v. County School Board of Prince Edward County, Virginia, a companion case to Brown v. Board of Education, the Supreme Court brief by the State of Virginia attacked the social-science evidence presented by the plaintiffs, arguing that their witnesses “bas[ed] their opinion on a lack of knowledge of Virginia.” And besides, “they were by no means the only experts who testified before the Court below.” To the contrary, the state “presented 4 educators, a psychiatrist and 2 psychologists,” all “eminent men” whose work was supported by “other outstanding scholars” and who testified that “segregated education at the high school level is best for the individual students of both races.”

One college president concluded that, without segregation, “the general welfare will be definitely harmed” and “the progress of Negro education  would be set back at least half a century.” A child psychiatrist testified, “When the two groups are merged, the anxieties of one segment of the group are quite automatically increased and the pattern of the behavior of the group is that the level of group behavior drops.” And the *chairman of the department of psychology at Columbia University* also had no doubt that separate-but-equal education was superior:

If a Negro child goes to a school as well-equipped as that of his white neighbor, if he had teachers of his own race and friends of his own race, it seems to me he is much less likely to develop tensions, animosities, and hostilities, than if you put him into a mixed school where, in Virginia, inevitably he will be a minority group. Now, not even an Act of Congress could change the fact that a Negro doesn’t look like a white person; they are marked off, immediately, and I think, as I have said before, that at the adolescent level, children, being what they are, are stratifying themselves with respect to social and economic status, reflect the opinions of their parents, and the Negro would be much more likely to develop tensions, animosities, and hostilities in a mixed high school than in a separate school.

In Brown’s predecessor, Sweatt v. Painter, the State of Texas defended its segregated law schools, arguing that “there is ample evidence today to support the reasonableness of the furnishing of equal facilities to white and Negro students in separate schools.” “After much study for the United States Government,” continued the State,

[Dr. Ambrose Caliver] found that a very large group of Northern Negroes came South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more “secure” at a college of his own people.

Texas also cited Dr. Charles William Eliot, “President of Harvard for forty years,” who concluded after a tour of the South that “if in any Northern state the proportion of Negroes should become large, I should approve of separate schools for Negro children.”

It is by no means inconceivable that social scientists and educators can still be produced who will testify that a *lack* of diversity will lead to a “better outcome for the students of this generation and for our society as a whole”. They would testify that there are fewer distractions and more mutual support in segregated schools--indeed, single sex education has its advocates for these reasons, as do historically black colleges.

Let me hasten to add again that *I* don’t believe this--that is, that diversity ought to be avoided. In fact, all things being equal, I’d bet that probably it’s better to have a diverse than a nondiverse classroom. But not a lot better--and I certainly don’t think that it’s better enough to justify racial discrimination.

Finally, Joseph, I’m still waiting to hear you spell out exactly what “skills” can be taught to bridge what “divides” between the races—and why they can taught only in classrooms that are balanced to the nth degree. Our time is running out!

Olchefske, 5:12 p.m.:

One of the occupational hazards of being a superintendent is that almost every decision you make, regardless of whether they are large or small, can generate an enormous amount of controversy and complaint. Parents are passionate about any issue that affects their child, and school districts make decisions every day of the week that affect the educational lives of students, so superintendents spend a lot of time hearing complaints from parents and trying to respond to them.

Among these many decisions, student assignment issues are some of the most controversial and closely watched by parent communities. This is not only true in big city school districts; suburban school districts routinely have major community conflicts about attendance boundaries, bus routes, etc.

I had the “pleasure” of experiencing five years of student assignment complaints as a superintendent, and I can tell you two important facts about parent activists on this issue. First, when they are motivated, parent activists can become highly informed about a school district’s student assignment policies in a very short time period. Second, parents who become student assignment activists are overwhelmingly white, college-educated and generally come from middle and upper income neighborhoods.

As a result of these two facts, the interests of these parents and their neighborhoods are loudly heard in every School Board room and every superintendent’s office in America. The activists will scrutinize every detail of any proposed change; they will have maps and charts and tables that are superior to the district’s own material. They will know in detail which kids will go to Jefferson High School if the attendance boundary is set at First Avenue or if it is set at Main St. They will make well-informed and sometimes compelling arguments to modify the student assignment plan that will ultimately benefit their community, their school and their children.

Unfortunately, the voices of non-white, less educated and lower income communities are heard far more softly when these student assignment conflicts arise. The interests of these communities are not well served as School Boards and superintendents wrestle with difficult student assignment issues. As a result, the plans over time evolve to better serve the interests of upper income/white communities and less well serve the interests of minority/lower income communities.

We all remember in the movie “Casablanca,” Captain Renault was “shocked” that gambling was going on at Rick’s Café. I don’t think we should be like Renault and feign that we are shocked that these plans serve some racial groups better than others. There is no question that student assignment plan changes can result in significantly differential impacts on different racial groups. The activists that argue for these changes are well aware of these impacts. This is a racial and political reality that plays itself out in school districts everywhere in America.

There is a fundamental unfairness in this process that is a reality we all need to acknowledge. To borrow Roger term, there is a “discrimination” that is inherent in this situation. So, I think Roger is being incredibly naïve when he says “I think that educators like you should not be taking steps with an eye on the racial and ethnic bottom line”. I respectfully disagree. Instead, I think it is critical that school districts do take active steps with “an eye on the racial and ethnic bottom line”, or they will be extending and perpetuating the unfairness that is inherent in the system.

In my last commentary I asked why Roger he believes the world would be a better place when, as he argues, we take active steps to minimize the diversity of our schools. He naively argued in response that we should neither minimize nor maximize diversity, and somehow be neutral on the question.

Since Roger has been incapable of answering this question, let me clarify the question a little bit. Without school districts taking active steps to increase the diversity of their schools, there is an inevitable policy drift to greater separation of students by race and class. So any superintendent who follows Roger’s argument and turns a blind eye to the issues of race and class in student assignment will be in fact moving to minimize diversity in their schools.

So Roger, how is America a better place when this happens???

I appreciate the fears that Roger expresses by describing the “dangerous two-edged sword” and including the 1940’s and 1950’s era quotes in his last commentary. Like Roger, I find these quotes to be somewhere between laughable and abhorrent. However, our world has moved so much in the last sixty years on the issue of race in schools, so I just don’t think we should be burdened in our current thinking by the misplaced arguments of an earlier era. The pre-Columbus arguments of a flat earth certainly didn’t limit our commitment to the Apollo missions.

I also greatly appreciate that Roger acknowledged that some diversity is better than no diversity. I believe him when he says: “I’d bet that probably it’s better to have a diverse than a nondiverse classroom”.

If that’s the case, then let’s give school districts some tools to make this happen. Without some concrete tools in the hands of district leaders, the policy drift to greater separatism will be inexorable. If we believe that increasing racial diversity is a good thing, then let’s create some policy mechanisms that address this racial issue head-on and put them into the hands of school district leaders.

Clegg, 9:04 a.m.:

This is my last blog of the week, so let me begin by saying how much I’ve enjoyed participating.

What I’d like to do today is address a few points made by Joseph in his blog yesterday, and then make some closing observations.

In yesterday’s blog, Joseph makes essentially two points. First, if you don’t deliberately assign students on the basis of race, you won’t get predetermined racial-assignment results as well as when you do. Well, duh. But of course that assumes that the benefits of those predetermined racial-assignment results outweigh their costs, and the careful reader this week has probably figured out that I don’t share that assumption.

And speaking of the supposed benefits of racial balancing, the careful reader may also have noticed that, once again, Joseph has not spelled out exactly what “skills” can be taught to bridge what “divides” between the races—and why they can be taught only in classrooms that are balanced to the nth degree. Maybe he’s saving this for his grand finale (although this means, unfortunately, that I won’t be able to respond to it). Oh well.

Joseph’s second point in yesterday’s blog is this syllogism: (a) Motivated parents tend to be rich, educated, and white; (b) motivated parents are more likely to have an impact on school board assignment policies than unmotivated parents; so (c) school board assignment policies are more likely to reflect the interests of rich white educated parents than poor uneducated nonwhite parents.

I think Joseph is not being entirely fair to the many motivated parents who happen not to be white, or rich, or educated, but let’s accept his point for the sake of argument. Even if his syllogism is true, how does this justify the use of race in student assignments??

I don’t think that it does, for two reasons.

Joseph’s argument makes sense only if one assumes that racial balancing is something that is in the interest of poor uneducated nonwhite parents but contrary to the interests of rich educated white parents. I think that Joseph himself would reject this; presumably he thinks racially balanced classrooms are in *everyone’s* interest. Maybe he thinks that rich white educated parents object to racial balancing even though it is in their interest—silly parents, thinking they know more about what’s good for their kids than trained educators like Joseph! But even if Joseph is right that a lot of rich educated white parents are acting against their children’s interests, I think he is wrong in suggesting that poor uneducated nonwhite parents are perfectly happy to have their children assigned to schools on the basis of skin color.

But the other problem with Joseph’s argument is even more fundamental. He thinks the Seattle plan is a corrective to the power of rich educated white parents (one wonders, then, how the plan ever got adopted in the first place notwithstanding the great power of these parents, but never mind). The real flaw in Joseph’s argument is that the Seattle plan doesn’t just discriminate against *them* on the basis of skin color—it discriminates in the same way against poor uneducated nonwhite parents! So it’s no corrective at all: The nonwhite kids are told that they cannot attend schools that already have “too many” of their kind, same as the white kids.

Two other quick rejoinders to Joseph’s Thursday posting. First, he is not moved by my history lesson regarding past abuses of race-based assignments, because we are so much more enlightened now. Well, I’m sure all the experts back in the day thought they were enlightened, too. Second, Joseph ends with a simple plea to “give school districts some tools” to make diverse classrooms happen. Trouble is, of course, that one of the tools Joseph has in mind is racial discrimination.

Now on to *my* grand finale.

Joseph has insisted over and over again this week that he is not a lawyer, but an educator. I’ve come to the conclusion that he may be on to something. One thing that the rule of law teaches is that principles matter, and we have to be careful about setting dangerous precedents and stepping out onto slippery slopes. We can’t just make things up as we go along--we have to think carefully about future consequences. That’s why the nine lawyers on the Supreme Court are right to be very, very skeptical about allowing racial discrimination.

Those lawyers know that our laws are hostile to racial discrimination, that our history is filled with sad lessons about it, and that people in general don’t like being treated differently according to skin color--perhaps none more so than parents watching their children suffering discrimination, even at the hands of professional educators.

And so the Supreme Court allows such discrimination only in extraordinary circumstances, only when there is essentially no other way to achieve a very, very important—a compelling—interest.

So, dear reader, go back to my first blog of the week, and read why I do not think the Supreme Court should find a compelling interest here. In a word, the benefits of racial balancing are too nebulous—too touchy-feely, too speculative—and, even assuming that they exist, they have little bearing on most of what schools teach. And, in another word, the social and individual costs of this racial discrimination overwhelm any benefits. Despite Joseph’s best efforts this week, he hasn’t changed my mind about any of this.

Olchefske, 5:12 p.m.:

Like Roger, I want to begin my last blog of the week by acknowledging what a wonderful personal experience this debate has been for me. Roger and I have never met, but I want to especially thank him for his very fine performance this week as we jousted in the blogosphere. I also want to thank the folks at Edspresso for inviting me to participate in the debate.

I think Roger raised an important point in his last blog when he discussed the role of principle in this case. I agree with him on the important role that principle must play in our debate on this topic and, more importantly, in the deliberations of the Supreme Court on these cases.

I want to make two comments about the role of principles; one is very practical and the other is more abstract.

The practical point: I want to caution all of us – including Roger and me – from getting too high-minded and “principled” in our conversations regarding these difficult student assignment issues. At the ground level of almost every student assignment conflict is simply a parent whose child did not get into the school they wanted. When that happens, the parent gets angry and looks anywhere and everywhere to change that decision. They look at the district’s student assignment plan, and if there is a policy change in the plan that will help their child get into the school they want, then that that is the policy change they will seek. The change could be a boundary change, a bus route modification or a challenge to a diversity tiebreaker. While they may advocate on principle, at the ground level the ultimate issue is really as simple as getting their child into the school the parent wants.

An insider story from the Seattle case: the plaintiffs in the case are a set of parents from a neighborhood called Magnolia who wanted their children to attend Ballard High School. Ballard had become the most popular school in the district, with far more students choosing the school than there were seats available. As a result, all of the various tiebreakers – including the diversity tiebreaker – in the district’s student assignment plan were activated to select which students got the coveted spots in the school.

Ironically, the Magnolia community had actively advocated to the School Board for a decade or more for their children not to be assigned to Ballard, but instead to be assigned to Franklin High School. The Magnolia parents made a number of “principled” arguments about the historic ties between Ballard and Franklin and the lack of any relevant connection to Ballard. The underlying reality was, of course, that they perceived that Ballard was a far inferior school to Franklin.

In the late 1990’s, Ballard dramatically improved as a school and quickly became a very popular school choice. Parents in Magnolia (and many other neighborhoods) began choosing Ballard who would never have considered the school as a viable option in the recent past. The school became far over-subscribed and many students who chose the school were not admitted.

When this occurred, the district heard a very different message from the Magnolia community. Ballard was now “their school” and a different set of “principles” were espoused as they argued for why the district should change its policies to ensure that Magnolia kids get into Ballard. When the district didn’t change its policy to make this happen, the parents cast about for another policy alternative and found the diversity tiebreaker as an attractive target, which ultimately resulted in the suit being filed.

At the beginning of the conflict, the plaintiff parents were not about the principle of race-neutrality in student assignments; they were simply for the principle of getting their kids into Ballard. We are now at the Supreme Court six years later and the case is only about “principle”.

I relate this story for two reasons. First, in the world of student assignment, what is a core principle today can be heresy tomorrow if your kid doesn’t get into the right school. I remember a line from a graduate school politics course: “where you stand depends on where you sit”. In this context, let’s not pretend that any principle that is espoused is today’s version of the Eleventh Commandment.

Second, I think we need to acknowledge that in this discussion of principle, there will be real life consequences to whatever is decided by the Supreme Court. If the Magnolia parents are successful in the case, then parents in the Queen Anne or Montlake or Blue Ridge neighborhoods will not get their children into Ballard High School. Rest assured, they will find another “principle” to fight for so their child will get into the school.

The more abstract point: Roger’s view is that “principle” should apply only to the means and methods we apply to accomplishing a goal. He argues that the techniques of race-based student assignment are gross violations of the principles of fairness and anti-discrimination, and therefore should be avoided at all costs.

I think this use of principle is only half the story. We also need to take a principled view of the goals that our laws and policies are meant to address. I think the principle of school diversity is an important one that we need to find ways to promote and support at all costs. The point I made in an earlier blog deserves repeating:

The society that our children will be entering is more diverse, more pluralistic than ever experienced in our history. The major societal conflicts that shape today’s world are all driven by our collective inability to reach across the social divides of culture, class, religion and geography. By increasing the diversity of our schools, we are creating environments that, in some small way, can help students to develop skills to bridge these divides and ultimately be better citizens of the 21st century.

As a father of a twelve-year-old, I know that my daughter will need a well developed set of skills to navigate these divides. I can’t completely answer Roger’s question regarding the specific skills she will need, but here is my start to a list:

• Knowledge and understanding of other races, religions and culture.
• Tolerance for personal differences.
• Fluency in connecting and relating to people unlike yourself.
• Personal curiosity in and embrace of other cultures.

This distinction between end and means, goals and methods is an important one. As I review this week’s debate, it is in many ways the most important distinction that exists between Roger’s viewpoint and mine.

I fear the consequences for our country and our collective future if we don’t take active steps to promote the principle of school diversity as a means of improving the next generation’s abilities to navigate the challenges of the 21st century. I think school diversity is the principle to fight for. Let’s give school districts some real tools to make it a reality.