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Moving Beyond Brown: Race and Education After Parents v. Seattle School District No. 1


by Jamel K. Donnor - 2011

Background: By a 5–4 margin, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1 declared that voluntary public school integration programs were unconstitutional. Citing the prospective harm that students and their families might incur from being denied admission to the high school of their choice, the Supreme Court declared that the plaintiffs, Parents Involved in Community Schools (PICS), had a valid claim of injury by asserting a interest in not being forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.

Purpose: The goal of the article is to discuss how conceptions of harm and fairness as articulated in Parents Involved in Community Schools v. Seattle School District No. 1 privilege the self-interests of White students and families over the educational needs of students of color.

Research Design: This article is a document analysis.

Conclusions: By referencing the Brown v. Board of Education of Topeka decision of 1954 (Brown I) to buttress its decision, the U.S. Supreme Court has determined that programmatic efforts to ensure students of color access to quality learning environments are inherently ominous. The dilemma moving forward for policy makers and scholars concerned with the educational advancement of students of color is not to develop new ways to integrate America’s public schools or reconcile the gaps in the Supreme Court’s logic, but rather to craft programs and policies for students of color around the human development and workforce needs of the global economy.

The truth is that racial justice and colorblindness are not the same thing.

— Jerome McCristal Culp, 1994, p. 162


. . . all white Americans, regardless of their political persuasions, are well aware of how black people have suffered due to inequities imposed upon them by white America . . . whites differ in how they handle that knowledge.

—Andrew Hacker, 1992, p. 60

We won Brown. But almost nothing happened with schools.

— Jack Greenberg, 2004, p. 67



Decided by a 5–4 margin, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1 decreed that voluntary public school integration programs were unconstitutional. Citing the prospective harm that students and their families might incur from being denied admission to the high school of their choice, the Supreme Court declared that the plaintiffs, Parents Involved in Community Schools (PICS), had a “valid claim” of injury by asserting an “interest in not being ‘forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions” (Parents v. Seattle School District No. 1, 2007).


Since the civil rights movement of the 1950s and 1960s, arguments alleging harm and the unfairness brought about by programs that consider race in student admission decisions have been successful in framing the practice as unjust and burdensome (Brown et al., 2003; Flagg, 1998; Winant, 1997a, 1997b). These interconnected arguments have accomplished their objectives in two ways. First, policies that use race as a categorical variable or a factor among many (i.e., a plus-one factor) in student admission decisions have been deemed a “special consideration above and beyond a perceived baseline of equal treatment” (Bracey, 2006, p. 1241). Second, and most important, White students are often portrayed as being acutely harmed by education policies that consider race (T. H. Anderson, 2004; Bonilla-Silva, 2003; Bracey; Ross, 1990). Indeed, much of the mainstream media’s coverage on this topic has focused on identifying supposedly qualified White students or applicants who were not admitted to the school or university of their choice because a less qualified person of color had been granted admission (T. H. Anderson, 2004; Guinier & Sturm, 2001).


Along with framing programs, such as integration, beyond the purview of fairness, concerns about the impact of such programs on Whites overlook the structural arrangements responsible for creating inequities in the first place (Katz, Stern, & Fader, 2005). In addition, the foregoing concerns ignore the all-encompassing nature of inequality specific to education (Ladson-Billings, 2006). For example, the Black-White achievement gap is simply understood as a contemporary phenomenon to be studied annually, rather than the product of “historical, economic, sociopolitical, and moral decisions” that have shaped American society (Ladson-Billings, p. 5).


That said, rather than explicitly argue against the Seattle School District’s efforts to provide students of color with an opportunity to attend one of the city’s top public high schools vis-à-vis the voluntary integration program, PICS used a notion of harm that framed the purported injury to Whites and lack of fairness as equivalent to the historical mistreatment and contemporaneous marginalization of non-Whites (Freeman, 1978). Although issues of harm and fairness are not new topics of policy debates regarding the American education system, what is noteworthy in this instance is the success of both constructs when used by Whites to curtail, if not thwart, policies and practices intended to promote racial justice (Pollack, 2008; Taylor, 2000).


The purpose of this article is to discuss how PICS’s conception of harm and fairness, as per its petition to the U.S. Supreme Court, privileges the self-interests of White students and families over the educational needs of students of color. The goal of this article is twofold. The first is to explain how anti–school desegregation arguments are rationalized. The second goal is to highlight the limitations of universalistic policy solutions in accordance with the spirit of the 1954 Brown v. Board of Education decision to address race specific problems. This article comprises three sections. The first section reviews PICS’s argument against Seattle School District No. 1’s integration policy. The second section analyzes PICS’s arguments utilizing legal scholar Alan Freeman’s perpetrator perspective framework of racial discrimination to highlight its limitations and inconsistencies (Freeman, 1978, 1990). The third section, the conclusion, offers an approach for rethinking policy solutions to address racial disparities in education in light of the Supreme Court’s ruling in the case.


PARENTS INNVOLVED IN COMMUNITY SCHOOLS’ ARGUMENT AGAINST SEATTLE SCHOOL DISTRICT No. 1’s VOLUNTARY INTEGRATION PROGRAM


In its petitioner’s brief to the U.S. Supreme Court, PICS contended that Seattle School District No. 1’s voluntary integration program created an excessive burden for White families (Petitioner’s brief, No. 05-908, 2005). The following is a summary of PICS’s arguments presented in its petition to the Supreme Court.


ARGUMENT I: RACIAL CLASSIFICATIONS ARE PRESUMPTIVELY INVALID AND MUST BE SUBJECTED TO THE STRICTEST JUDICIAL SCRUTINY


In this argument, PICS asserted that Seattle School District No. 1’s voluntary integration program is a “racial quota” (Petitioner’s brief, No. 05-908, 2005, p. 21). Used by conservative ideologues on the far right of American political continuum, the term racial quota is invoked to define social reform policies developed to ameliorate the legacy of Jim Crow and state-enforced racial oppression as unfair. Regarding education, racial quota alleges that people of color are given preferential treatment over Whites in school admission decisions because of race (T. H. Anderson, 2004; Brown et al., 2003). Despite very little empirical evidence to support this viewpoint, the image of Whites disadvantaged provides the cognitive image necessary to mobilize mainstream resistance to policies and practices intended to promote racial equality (Winant, 1997a, 1997b). As such, PICS posited that the Seattle School District’s efforts to integrate its high schools “must be subject[ed] to the strictest judicial scrutiny” (Petitioner’s brief, p. 24).


Developed as the standard of judicial review by the Supreme Court, strict scrutiny is used to evaluate a state agency’s use of race as a criterion in providing access to public opportunities and resources. Strict scrutiny is a two-part “ends-means test” that the high court uses to abolish laws and policies that deny individuals or groups equal treatment because the explicit use of race violates their fundamental personal interest (Brooks, 2004). To meet this standard of judicial review, a government agency must identify a broad societal goal or demonstrate a “compelling interest” to justify its use of race in policy and practice. In addition, a government agency must ensure that the methods used to achieve the compelling interest are specifically tailored to the societal purpose (City of Richmond v. Croson, 1989). With respect to education, the Supreme Court only allows an agency to consider race to remediate the effects of past racial discrimination and promote diversity in graduate education (Donahue, 1997; Grutter v. Bollinger, 2003; Lechner, 2003). Based on this understanding, PICS contended that the voluntary integration program was unconstitutional because Seattle School District No. 1 had never been under federal court orders to desegregate its schools, and its educational mission was distinct from higher education.


ARGUMENT II: THE DISTRICT’S PLAN USES RACIAL BALANCING AND THEREBY VIOLATES OUR COLOR-BLIND CONSTITUTION


Argument II consists of seven interrelated subarguments contesting the fairness of Seattle School District No. 1’s voluntary integration program. The first subargument, Except to remedy past discrimination racial balancing is unconstitutional, contended that the district’s desegregation policy “offends the Constitution . . . both from the express words of the document and from its philosophical and historical underpinnings in the Declaration of Independence” (Petitioner’s brief, No. 05-908, 2005, p. 26). Theoretically, the U.S. Constitution is a race-neutral document that governs American society. In practice, however, the Constitution, from its inception, has been a “hostage of forces inimical to the interests of racial minorities” (Lively, 1989, p. 294). For example, although slavery was, in theory, contradictory to the tenets of the Constitution, in practice, the founding fathers’ preoccupation with incorporating the former colonies into a functioning political and economic system took precedent over racial equality (Lively). Despite this inconsistency, PICS contended that the integration program obscured the Constitution’s color-blind principle by requiring public school officials to know the race of students (Petitioner’s brief, No. 05-908).


The second subargument, the Essence of racial balancing is a mechanical use of a quantitative criterion based on race, claimed that the Seattle School District’s desegregation program was invalid because students were viewed collectively in admission decisions rather than individually (Petitioner’s brief, No. 05-908, 2005). Specifically, PICS argued that because of desegregation, students in the district were not allowed to demonstrate their respective qualifications for admission to oversubscribed high schools. The third subargument, The district’s race preference is a clear case of racial balancing, questioned the legality of the integration program on the auspices that student admission to oversubscribed high schools was solely contingent on the basis of whether he or she was “white or nonwhite” (Petitioner’s brief, No. 05-908, p. 29). Similar to its premise in Argument I, PICS, in this subargument, claimed that integration reduced a student’s chances of attending school close to home. Concomitantly, families, according to PICS, were at risk for incurring excessive harm if students were not admitted to schools close to home. Conversely, the fourth subargument, Racial balancing is not justified by a desire to obtain the benefits of diversity, maintained that the “only kind of diversity affected” by the district’s desegregation program was “between whites and nonwhites” (Petitioner’s brief, No. 05-908, p. 30). Moreover, PICS here posited that “even if . . . racial diversity were to have educational benefits . . . the end does not justify the means” (Petitioner’s brief, No. 05-908, p. 30). In other words, if a positive correlation exists between racial diversity and student performance, integration is not worth the cost.


The fifth subargument of Argument II, Racial balancing is not justified as a desegregation measure because Seattle high schools are not segregated, alleged that Seattle public schools were incapable of becoming racially segregated (Petitioner’s brief, No. 05-908, 2005). Framing the causes of school segregation as the product of purposeful acts meant to harm, PICS contended that a two-tier public education system that overtly assigned students to different specific schools because of race was required to justify the use of a voluntary desegregation program. Otherwise, racial segregation in schools is a natural phenomenon.


The sixth subargument, Racial balancing is not excused by the fact that every child is entitled to obtain a high school education, asserted that high school students are a social class protected from discrimination under the 14th Amendment. Inferring that the integration program created a “substantial hardship” for families by limiting their choice of schools, PICS maintained that the only way for the Supreme Court to resolve the matter was to protect a student’s preference for attending a high school close to home. The final subargument of Argument II, Racial balancing is not excused because it discriminates sometimes against one race and sometimes against another, maintained that the U.S. Constitution’s Equal Protection Clause requires state agencies to treat all citizens identically (Petitioner’s brief, No. 05-908, 2005). As PICS viewed it, the district’s efforts to address underinclusiveness and exclusion of students of color from an area’s most popular high schools intruded on a student’s individual right.


ARGUMENT III: THE DISTRICT’S PLAN FAILS BOTH PRONGS OF STRICT SCRUTINY


Beginning with restating the integration program’s inability to meet the strict scrutiny standard, PICS, through multiple subarguments, contended that students of color were unfairly afforded an admissions preference that was injurious to White students. In the first subargument under this heading, The district cannot establish that its race preference serves any compelling government interest, PICS asserted that the Seattle school board was unable to demonstrate that student diversity served a compelling interest because diversity is conceptually “too amorphous” and its social benefits are “too uncertain” (Petitioner’s brief, No. 05-908, 2005, p. 35). In addition, PICS asserted that the benefits of diversity are “outweighed by the cost [it] necessarily impose[s]” (Petitioner’s Brief, No. 05-908, p. 35). The second subargument, Trivial changes in pigmentation diversity at a few already diverse schools cannot be a compelling interest, insisted that the district’s voluntary integration program “does nothing to address the nonwhite [population] in two schools with the smallest white populations, Rainier Beach (8% white) and Cleveland (10% white)” (Petitioner’s Brief, No. 05-908, p. 37). Appropriating the Seattle school board’s rationale for establishing its desegregation program, PICS argued that schools with a large student-of-color population were ignored by the policy (Petitioner’s Brief, No. 05-908, p. 37). As a result, according to PICS, this policy gap on face value made the integration program unconstitutional.  


The third subargument, Avoiding the effects of voluntary choices is not a compelling governmental interest, also argued that the district’s efforts to offset the impact of housing segregation on school composition was not a compelling interest (Petitioner’s Brief, No. 05-908, 2005). As mentioned earlier, for a state agency to use race as a criterion in determining access to public resources, it must be remediable to a specific instance of racism or serve a broader societal goal. For PICS, the racial composition of a neighborhood is the result of individual choices rather than structural conditions, which implies that where one chooses to send his or her child for schooling is a private matter not to be interfered with by the school district. The fourth subargument of Argument III, The district cannot show that its plan is narrowly tailored, contended that the voluntary integration program failed the strict scrutiny test because racial diversity is an imprecise policy instrument for creating an inclusive learning environment. According to PICS, because Seattle’s high schools have a “40% white and 60% non-white” student population, the district is already racially diverse (Petitioner’s Brief, No. 05-908, p. 40).  Therefore, an integration program is unnecessary (Petitioner’s Brief, No. 05-908). In addition, PICS argued that the voluntary integration program did not address the racial imbalance of schools with the “smallest white populations,” which is a double standard  (Petitioner’s Brief, No. 05-908, p. 40). The fifth subargument under this heading, The race preference causes undue harm, submitted that the integration tiebreaker “inflict[s] an injury that offends the Constitution” (Petitioner’s Brief, No. 05-908, p. 45). Although acknowledging that the school district did not have an obligation to provide students with the opportunity to select the high school of his or her choice, PICS insisted that the integration program was harmful to students who were not permitted to attend their school of choice.


ARGUMENT IV: THE DEFERENCE GRANTED BY THE AMERICAN JUDICIAL SYSTEM TO LOCAL SCHOOL BOARDS IS INCOMPATIBLE WITH THE CONSTITUTION’S EQUAL PROTECTION CLAUSE


In the final argument of its petition to the U.S. Supreme Court, PICS asserted that the previous lower federal district and state court rulings upholding the legality of the Seattle school district’s voluntary integration program were unfair (Petitioner’s Brief, No. 05-908, 2005). Referring to the autonomy afforded to public school administrators by the lower courts, PICS maintained that the Seattle school board used a “relaxed standard ” to assign students of oversubscribed schools in order to promote student diversity. According to PICS, the district’s approach was “unwarranted” because “no comparable line of cases” or precedent existed justifying its practice (Petitioner’s Brief, No. 05-908, p. 48). Citing Brown I, PICS argued that lower federal and state courts’ deference to the district did not require that the “weakest and most racially imbalanced schools” be improved, further suggesting a policy discrepancy (Petitioner’s Brief, No. 05-908, p. 49).


SUMMARY OF PICS ARGUMENT AGAINST SCHOOL DESEGREGATION


To summarize, despite the intentions of Seattle School District No. 1’s integration program to ameliorate the effects of de facto residential segregation and provide area school-age children with the educational benefits of attending a diverse learning environment, PICS postulated that the school board’s use of race as a plus-one factor in assigning pupils to the most popular high schools created a burden for families that was harmful (Petitioner’s Brief, No. 05-908, 2005). In addition, the petitioning group contended that the district’s desire to create a racially inclusive learning environment was a racial quota because it “prefer[red] one individual to another for no reason other than race” (Petitioner’s Brief, No. 05-908, p. 21). As such, the voluntary efforts to integrate area high schools did not meet the Supreme Court’s strict scrutiny standard because the city of Seattle had never operated a de jure segregated school system or been subjected to court-ordered desegregation. More important, the Seattle School District’s efforts to provide students of color access to the city’s top high schools presented a heavy burden on White families with children not admitted to the school of their choice.


THE NEW VICTIM AND THE NEW PERPETRATOR OF RACISM IN THE POST–CIVIL RIGHTS ERA


At first glance, PICS’s arguments for ensuring a student’s choice of schools appear benevolent. A closer look, however, reveals that their assertion that Seattle School District No. 1’s voluntary integration program is harmful and discriminates against Whites is fraught with inconsistencies and contradictions. In Argument I and Argument III, which respectively question the validity of Seattle School District No. 1’s voluntary integration, PICS calls on the Supreme Court to use a standard of judicial review that had not existed prior to 1978 (Brooks, 2004).


First used by the U.S. Supreme Court in Regents University of California at Davis v. Bakke, strict scrutiny was developed as a methodology to analyze the constitutionality of the university’s special admissions program to diversify its medical school’s student body. The defendant, Allan Bakke, a White male, initially sued the university, alleging that its diversity program had injured him by preventing him from competing for all 100 slots in the medical school’s incoming class in 1973 and 1974 (University of California Regents v. Bakke, 1978). Interestingly, Bakke had been denied admission to the University of California at Davis’s Medical School for two consecutive years. Despite being “nowhere to be found in the Constitution or in its legislative history,” the Supreme Court used the strict scrutiny standard to determine that the medical school’s diversity program, which allotted 16 placements in a class of 100 for students of various racial and ethnic backgrounds, was unconstitutional (Brooks, 2004, p. 175; University of California Regents v. Bakke).


In conjunction with the absence of a strict scrutiny precedent, the high court’s ruling was problematic for three additional reasons. First, although Mr. Bakke did have a “3.45 grade point and scored better than average” on the Medical College Admissions Test, his 1973 application for admission was submitted after the university’s deadline. Thus, the remaining 84 slots were already likely filled (T. H. Anderson, 2004). Second, along with receiving a low rating from his faculty interviewer at UC-Davis’s medical school, Mr. Bakke was rejected by “all eleven medical schools” he applied to in 1974 (T. H. Anderson, 2004, p. 152; University of California Regents v. Bakke, 1978). Third, and most troubling, neither Mr. Bakke nor his lawyers challenged the medical school’s other special admissions program, which reserved five admissions slots in each incoming class for the children of wealthy financial donors or “important state politicians” (T. H. Anderson, 2004, p. 152; Lipsitz, 1998).


In thinking about the strict scrutiny standard more critically, one can deduce that the Supreme Court’s evaluation of the harmfulness of the UC-Davis’s medical school diversity policy had little to do with administering justice and more to do with who purported to be injured. By failing to consider Bakke’s late application, poor interview, and numerous rejections, and the medical school’s admission policy for children of the affluent, that the U.S. Supreme Court selected to reach its precedent-setting decision not only exaggerated the alleged injury claim but also rendered an unstated edict regarding the convergence of race, class, and social policy in America: (1) Programs intended to foster racial equality regardless of impact will be determined unconstitutional, (2) Whites will overwhelmingly be identified as the victims of racial diversity, and (3) Policies and practices that further the sociopolitical fortunes of society’s elite are beyond the purview of strict scrutiny.


FROM PERPETRATOR TO COLOR-BLIND


Interestingly, since University of California Regents v. Bakke (1978), almost “all the winning plaintiffs” in racial equal protection lawsuits in education have been White (Kairys, 2004, p. 675). By appropriating the language and discourse of the civil rights movement, Whites have magically reinvented themselves into the victims of federal and state legislation from this era by invoking what legal scholar Alan Freeman called a “perpetrator perspective” of racism and racial discrimination (Freeman, 1978, p. 1053; Harding, 1991). In contrast to a more critical conception of race, racism, and racial discrimination, which requires an examination of the “objective conditions of life-lack of jobs, lack of money, lack of housing—and the consciousness associated with those objective conditions,” the perpetrator perspective views racism and racial discrimination as a product of specific actions carried out by an individual or institution (Freeman, 1978, p. 1053).


Central to the perpetrator thesis is the “principle of individual or institutional fault” (Freeman, 1990, p. 1412). The notion of fault, according to Freeman (1978), “gives rise to a complacency about one’s own moral status; it creates a class of ‘innocents,’ who need not feel any personal responsibility for the conditions associated with discrimination” (p. 1055). Further, the perpetrator perspective glosses over historical racial inequity because it “presupposes a world composed of atomistic individuals whose actions are outside of and apart from the social fabric and without historical continuity” (Freeman, 1978, p. 1054). A result of this viewpoint is the (mis)perception that everyone has a racial identity that is equal in legal and historical significance and has equal claim to protection against discrimination (Freeman, 1990). In other words, the United States is transformed from an imperial power premised on sustaining White supremacy and racial oppression into a nation of aggrieved minorities (Lopez, 2007; Mills, 1997; Winant, 2001; Young, 1990). Ergo, unless a particular instance of racial discrimination or racism can be directly linked to a specific or ongoing intentional act perpetrated by an individual or institution, attempts to promote racial justice are viewed as discrimination in reverse (Black, 2002; Freeman, 1978; Lawrence, 1976; McCristal Culp, 1994). It is this cognitive disconnect, coupled with the acontextualization of the interplay among race, opportunity, and the allocation of society’s resources, that led the majority of Anglo Americans to argue for the application of colorblind and race-neutral approaches in pupil placement assignments and school admissions policies (Lively, 1989; Lopez, 2006a, 2006b, 2007; powell, 1994, 1997, 2000).


DESEGREGATION AND ITS RESISTERS


Given strict scrutiny’s precarious intellectual foundation and the perpetrator perspective’s ahistorical conceptualization of race and racial injustice, PICS’s overall opposition toward Seattle School District No. 1’s voluntary desegregation program should be viewed not as a matter of principle or equity, but rather part of a broader response to blunt the original spirit of Brown (Bell, 1975, 2004). Initially, the architects of the Brown v. Board of Education lawsuit of 1954 envisioned that integrated public schools would begin to “facilitate the cherished American dream of equal opportunity . . . [and] . . . lead to some larger betterment of conditions for black people” (Patterson, 2001, p. xvii). However, almost immediately after the Brown decision, southern Whites responded by engaging in acts of violence toward African Americans, as well as more subtle methods of resistance, such as insisting on using freedom-of-choice plans to desegregate public schools (Guthrie & Springer, 2004; Patterson, 2001). In theory, freedom-of-choice plans were meant to allow Black and White parents equal opportunity to send their children to the school of their choice (Crespino, 2006; Ogletree, 2004). In practice, however, freedom-of-choice plans shifted the responsibility of public school integration onto African Americans, because Blacks had to apply for admission to White schools, and White parents “almost never” chose to enroll their children at African American schools (Kotlowski, 2005, p. 172). Thus, the pace of school desegregation was not only slow, but for almost a decade after Brown v. Board of Education 1954 and Brown v. Board of Education 1955, “not a single black child attended an integrated public grade school” in South Carolina, Alabama, or Mississippi (Klarman, 1994, p. 84).


As such, I contend that PICS’s arguments for ensuring a student’s/family’s choice is part and parcel a reaction by Whites to the perceived loss of their absolute right to exclude non-Whites from meaningful learning opportunities (J. D. Anderson, 2006; Balkin, 2005; Bell, 1988, 1999, 2001; Fultz, 2006; Harris, 1995; Klarman, 1994; Ladson-Billings, 2006; Patterson, 2001; Payne, 2004). For example, PICS’s fifth subcontention under Argument III, which posits that the Seattle school district’s voluntary integration program causes undue harm and is injurious because it limits student and parental choice of school, is misleading. For instance, during the 2000–2001 academic year, the only year in which the integration tiebreaker was used, “80.3%” of the total number of ninth graders were assigned their first choice of school (Brief for Respondents, No. 05-908, 2005, p. 9). Putting the foregoing figure in a broader context, without the integration tiebreaker, the percentage of ninth graders receiving their first choice of schools would have increased by “only a tenth of a percentage point, to 80.4%” (Brief for Respondents, No. 05-908, p. 9). In essence, the Seattle School District’s voluntary integration plan did not interfere with a student’s choice of preferred school (Brief for Respondents, No. 05-908, p. 9). Further, if a disaffected family demonstrated that the school district misapplied the integration tiebreaker rules or that their child suffered a “psychological hardship” or “medical need” that precluded him or her from attending a nonneighborhood high school, the pupil placement assignment could be overridden (Brief for Respondents, No. 05-908, p. 7). PICS, like Allan Bakke and the Supreme Court in University of California Regents v. Bakke (1978), overstated the impact on Whites of education programs designed to increase the access of students of color to quality schools.


Interestingly, PICS and its arguments for the abolishment of Seattle School District No. 1’s voluntary integration program are not new, but rather, parallel to those advanced by opponents of desegregation in the region during the 1970s (Brief for Respondents, No. 05-908, 2005). For example, in State ex rel. Citizens Against Mandatory Bussing v. Brooks (1972), the plaintiffs, also a parent organization, sought to recall all seven members of the Seattle school board by alleging that the adoption of a desegregation policy was “malfeasance, misfeasance, and violated their oath of office.” Similarly, in Citizens Against Mandatory Bussing v. Palmason (1972), a parent group claimed that Seattle School District No. 1’s busing plan was detrimental to students and interfered with a parent’s right to determine his or her child’s education.


Although the Washington State Supreme Court in State ex rel. Citizens Against Mandatory Bussing v. Brooks (1972) acknowledged that employing a school administrator known to be incompetent and imposing racial desegregation were sufficient grounds for a recall, the state justices’ ruling in favor of the board members declared that desegregation and busing were within the scope of their authority. The State Supreme Court also held that the petitioners’ assertion that federal judicial precedents in de jure school segregation cases were inapplicable to de facto cases was invalid. According to the judges in this case, the causes for segregation in Seattle public schools de facto or de jure were “of no consequence” (State ex rel. Citizens Against Mandatory Bussing v. Brooks). Similarly, in Citizens Against Mandatory Bussing v. Palmason (1972), the Washington State Supreme Court justices decreed that district administrators under the state’s constitution had the authority to implement a busing program. Further, the court rejected the petitioners’ assertion of the right to send a child to his or her neighborhood school, declaring that it was “inconsistent” with the U.S. Supreme Court’s decision in Swann v. Charlotte-Mecklenburg Board of Education (1971). For the judges in Palmason,


no one can have a vested right in any general rule or policy of legislation which entitles him to  insist that it remain unchanged for his benefit . . .[w]e find no authority in law for the proposition that parents have a vested right to send their children to, or that children have a vested right to attend, any particular public school.


Perhaps it is possible that the Washington State Supreme Court judges in Brooks and Palmason, respectively, recognized that school segregation, like residential segregation, is created by a confluence of macrolevel political, economic, and social dynamics (e.g., mortgage eligibility) and microlevel processes, such as racial attitudes and preferences (Briggs, 2005a, 2005b; Charles, 2005; Dreier, Mollenkopf, & Swanstrom, 2005; Orfield, 2002; Rury & Mirel, 1997). In addition, it is likely that the court understands that a family’s “choice” of school, like housing, is informed by an interplay of public and private forces, some which are informed by race. For instance, Charles’s multicity study on urban inequality and neighborhood composition revealed that most White homeowners and prospective homebuyers preferred to reside in a predominately or all-White neighborhood. Conversely, non-Whites, such as African Americans, Asian Americans, and Latino/a Americans, although cognizant of their “subordinate position” and the negative stereotypes assigned to them by Whites, were more willing to live in a racially integrated community (Charles, p. 73). According to Charles, “for all minority groups, economic and social advancement is associated with greater proximity and similarity to white Americans. For whites . . . integration with any group—but especially with blacks—brings the threat of loss of relative status” (p. 67). Also, Orfield’s analysis of racial data for elementary school students in the 25 largest U.S. regions shows that once the minority share in a community’s schools increases to a threshold level of approximately 10%–20%, the community’s racial transition accelerates until the minority percentages eventually reach 80% or greater. In short, the student composition of public schools eventually mirrors housing patterns (Kane, Staiger, & Reigg, 2005). Hence, Whites have a “possessive investment” in their aversion to people of color (Lipsitz, 1998).


In addition to higher property values, the “geography of opportunity” associated with predominantly White neighborhoods (i.e., education quality, employment options, safety, and environmental health) is more meaningful and expansive than in communities that are overwhelmingly non-White (Briggs, 2005a, 2005b; powell, 1997; Tate, 2008). Much of the literature on school quality and neighborhood capacity indicates that race and class are not only proxies for school failure, but also determinants for how likely one is to reside in an environmentally toxic neighborhood (Briggs, 2005a, 2005b; powell, 1997). Like the Southern segregationists and Northern resisters who feared that Brown would bring an end to Whites’ political and economic dominance over African Americans and usher in an era of unfettered competition for social opportunities and resources, arguments opposing desegregation are rhetorical instruments of evasion used by Whites to protect their sociopolitical privilege and relative socioeconomic advantage without appearing to be racist (Bonilla-Silva, 2003; Guinier, 2004; Klarman, 1994; Lipsitz, 1998; Patterson, 2001).


In the 21st century, White Americans advance and maintain their racial interests by invoking coded terms such as choice, preference, rights, and color-blindness that prioritize individual liberty over racial justice (Roberts, 1996; Young, 1990). A similar process occurred when the Constitution’s signatories purposely omitted explicit racialized terms, such as Black, White, and so forth. Despite the lack of explicit racial references, Europeans and their descendents were the only inhabitants of North America who were bestowed the privileges and rights of citizenship. Put simply, the absence of race does not prevent the implicit oppressive uses of race.


CONCLUSION AND DISCUSSION


In this article, I have tried to explain how the notions of harm and injury put forth by the petitioners in Parents v. Seattle School District No. 1 (2007), an anti–school desegregation case, exaggerates the impact of the district’s voluntary integration program on where a family can send their child for high school. In addition, I have tried to show that Parents Involved in Community Schools’ opposition to the Seattle School District’s desegregation program is part of a larger resistance by Whites to public school integration, both locally and nationally. In petitioning the U.S. Supreme Court to protect a student’s right to attend the school of his or her choice, PICS, like Southern segregationists and Northern resisters to busing, seeks to maintain pupil placement assignments that are consistent with de facto housing segregation patterns in the region (Brief for Respondents, No. 05-908, 2005). Moreover, PICS appears intent on foreclosing students of color from attending the region’s better high schools.


According to the Seattle school board, high schools located in North Seattle, which is predominantly White, are more sought after by students and their families than those in South Seattle, which is primarily non-White (Brief for Respondents, No. 05-908, 2005). Similarly, housing patterns in the Seattle region are divided along a North-South corridor, in which “more than 75% of the District’s non-white students live in the southern half of the city, while 67% of the white students live in the northern half” (Brief for Respondents, No. 05-908, p. 2). The products of the city’s residential patterns have been “varying levels of racial segregation in Seattle schools” (Brief for Respondents, No. 05-908, p. 2). Thus, the sole purpose of the voluntary integration program was to ameliorate the effects of de facto residential segregation and provide area school-age children with the educational benefits of attending a diverse learning environment.


In essence, PICS is an example of the limitations of Brown as evidenced by the high court’s heavy reliance on it to explain its verdict in Parents v. Seattle School District No. 1 (2007). Writing on behalf of the Court’s majority, Chief Justice Roberts remarked,


In Brown v. Board of Education (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors denoted inferiority. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. (Parents Involved in Community Schools v. Seattle School District No. 1, 05-908, p. 24)


By referencing Brown I to buttress the court’s decision, Chief Justice Roberts and the concurring justices (Scalia, Thomas, Alito, and Kennedy) have deemed programmatic efforts to ensure students of color access to quality learning inherently ominous.


The dilemma moving forward for policy makers and scholars concerned with the educational advancement of students of color is not to develop new ways to integrate America’s public schools or reconcile the gaps in the Supreme Court’s logic in Parents v. Seattle School District No. 1 (2007). Rather, educational programs and policies for students of color need to be crafted around the current and prospective human, information, and technological contexts of the American political economy (i.e., the global economy). Indeed, given the social and political epoch in which it was conceived, Brown was a brilliant strategy. Unfortunately, however, its architects underestimated the sustainability of Whites’ resistance. The convergence of Jim Crow, the civil rights movement of the 1950s, and the Cold War with Russia served as the impetus and moral linchpin for national policy makers to symbolically reconcile a disconnect with the country’s global aspirations (Bell, 1987, 1992, 1995, 2004; Dudziak, 1995). In the postindustrial era, education policies guided by Brown no longer avail themselves to the human development and workforce needs of the global economy.


Efforts to develop and sustain quality learning opportunities for students of color must be “built around the idea of furthering the well-being of the entire community” and aligns with the human capital development needs regionally, statewide, nationally, and internationally (Stone, 2005, p. 209). The challenge for scholars and policy makers concerned with communities of color is to rethink a new course of sustained action for ensuring that its children are not left further behind. The truth is, Brown, as it was originally conceived in spirit and intent, no longer has any strategic value in the educational advancement of students of color in the United States. In short, Brown is dead.  


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Cite This Article as: Teachers College Record Volume 113 Number 4, 2011, p. 735-754
https://www.tcrecord.org ID Number: 15969, Date Accessed: 9/25/2020 5:05:30 PM

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About the Author
  • Jamel Donnor
    The College of William and Mary
    E-mail Author
    JAMEL K. DONNOR is an assistant professor in the Department of Curriculum and Instruction in the School of Education at The College of William and Mary. His research interests include examining race in education and society as it relates to theory, policy studies, and the experiences of African Americans students, specifically African American males, throughout the K–16 education pipeline. Among his recent publications is “Leaving Us Behind: A Political Economic Interpretation of NCLB and the Mis-education of African American Males,” Educational Foundations, Summer-Fall 2010, 43–54.
 
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