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.