Discrimination Is Not De Facto

Originally published in Slate on May 5, 2017.
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Do we know why racial segregation occurs? In 1973, the Supreme Court said no, and in doing so, dealt a crushing blow to the civil rights movement. In Milliken v. Bradley, the court ruled that the white suburbs of Detroit could not be included in Detroit’s school desegregation plan, because no real evidence existed to show that segregation in the region’s schools or neighborhoods was “in any significant measure caused by governmental activity.” The justices concluded black students were concentrated in Detroit because of “unknown and perhaps unknowable factors.”

De facto segregation, it came to be called, a name suggesting a natural racial geography, which policymakers discover rather than create. The question of segregation’s origins, it was implied, extended far beyond the mundanities of government and into the collective psyche of Americans. Understanding those origins required parsing the individual choices and prejudices of millions of citizens. This was a question for philosophers and sociologists, not for government officials.

Thirty-four years later, Milliken’s logic still had adherents on the court. In 2007, when rejecting school desegregation plans in Louisville and Seattle, Chief Justice John Roberts concluded that discrimination “not traceable to [the government’s] own actions” requires no constitutional remedy.

An essential new book takes square aim at these decisions and the very notion of de facto segregation itself. In The Color of Law: A Forgotten History of How Our Government Segregated America, Richard Rothstein of the Economic Policy Institute concludes that the court was wrong—and still is—when it described racial segregation as the product of private individual choices.

The Color of Law resurrects an older view that had proven instrumental in the movements of the 1960s: that American government has betrayed a commitment it made with the adoption of the 13th, 14th, and 15th Amendments, to ensure that black Americans could take their place as equal members in American society. The book describes the systematic violation of black Americans’ constitutional rights, through the aggressive enactment and enforcement of racially discriminatory policies. Rothstein notes that these facts were “knowable” all along; the Supreme Court even ignored evidence of government discrimination presented in Milliken’s lower court trial.

Rothstein persuasively debunks many contemporary myths about racial discrimination. He goes after, for instance, the resilient misconception that racial separation was only government policy in the Jim Crow South, and that black entrants into neighborhoods cause white homeowners’ property values to fall. In one powerful section on zoning policies, Rothstein traces how hazardous waste sites were concentrated in segregated black neighborhoods. The episode mirrors the displacement of black families by urban renewal and interstate highway construction in mid-20th century. Even though it has long been recognized that these policies were immensely destructive and racially targeted, hardly any compensatory assistance has ever been provided.

Rothstein’s arguments are framed in the language of the civil rights movement, once common but much rarer today. In that vein, he affirmatively argues for a return to the harder-edged moralistic terminology of decades past. He refuses to shy away from words like “ghettos” and “slums,” because, he says, no alternative comes close to showing how government action is implicated in their creation. Even more strikingly, he eschews the modern euphemism “people of color,” saying American segregation has been first and foremost directed at black families, something that shouldn’t be obscured.

Rothstein’s book comes at a turning point for civil rights. After decades of public skepticism for many of its signature solutions, like integrated schools and equal access to housing, many have started to question whether the way we talk about inequality and segregation has strayed off course.

In 2014, protests over police brutality erupted nationwide, and the Black Lives Matter movement grew as a major force in American politics. That same year Nikole Hannah-Jones published an award-winning series on school segregation and Ta-Nehisi Coates published his renowned Case for Reparations” cover piece raising questions of what, if anything, America owes its black citizens. In 2015, Hannah-Jones produced a much-discussed radio series on school segregation, which has helped restore the view, widely held until the 1980s, that segregation is perhaps the foundational flaw in American public schooling.

As the country began reckoning more openly with its history of racism and racial isolation, some began to wonder if the straightforward remedies backed by early civil rights activists—which had seemed blunt to modern policymakers—were actually more effective than previously realized. After all, the systemically discriminatory policies of the past were rarely subtle.

Policy developments also contributed to this momentum. In the summer of 2015 the Supreme Court issued an important ruling that the Fair Housing Act—one of the three major civil rights laws of the 1960s—forbade even unintentional discrimination, and the Obama administration implemented, after almost 50 years, rules requiring cities to affirmatively pursue racial integration. New research published in 2015 and 2016 also revealed that the original, 1960s campaigns for civil rights and racial integration were far more successful than many had believed them to be. For instance, in 2015, a team of Harvard economists published a blockbuster report that low-income children who moved to higher opportunity areas were significantly more likely to attend college, and earned far more as adults, than similar children who never moved.

Rothstein concludes by talking about history; specifically, how it’s taught. Looking at some of the most popular U.S. history textbooks in public schools, he highlights what little they have to say about segregation, especially in the North. This failure to teach children about their country’s history of discrimination, of redlining, of blockbusting, of income suppression leaves people comfortable to assume present inequality is the result of individual decisions and “unknown” factors, not government policy.

This is the view that Rothstein ultimately seeks to challenge. The segregation of and discrimination against black families is far more than the result of individual choices; after all, individual choices can be either supported or prohibited by government. “Under our constitutional system,” Rothstein writes, “government has not merely the option but the responsibility to resist racially discriminatory views, even when—especially when—a majority holds them.”

But since American schools don’t teach the true history of systemic racial segregation, Rothstein asks, “Is it any wonder [students] come to believe that African-Americans are only segregated because they don’t want to marry or because they prefer to live only among themselves?” Only when Americans learn a common—and accurate—history of our nation’s racial divisions, he contends, will we then be able to consider steps to fulfill our legal and moral obligations. For the rest of us, still trying to work past 40 years of misinformation, there might not be a better place to start than Rothstein’s book.

 

 

 

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When Public Schools Go Private

Originally published in The American Prospect on September 28, 2016.
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The Census Bureau released new data earlier this month that showed the median household income in 2015 was $56,500, up 5.2 percent over 2014. This marked the largest single-year increase since at least 1967, the federal agency reported. Moreover, this income growth was concentrated among the poor and the middle class, and 2.7 million fewer Americans were living in poverty in 2015 than a year prior.

Despite these encouraging trends, they come nowhere close to reversing the dramatic rise in inequality we’ve seen since the late 1970s. As the Economic Policy Institute reported in June, in 2013, the top 1 percent of American families gained 25 times as much income during that time as the bottom 99 percent. And as The New York Times recently noted, the median household still earns 1.6 percent less in inflation-adjusted dollars now than it did prior to the housing market collapse.

With that in mind, a new report released today by In the Public Interest, a research and policy organization, makes the case that the increased privatization of public goods and services over the last few decades has contributed to, and exacerbated, the stark inequalities we see today. The report sifts through various sectors that have grown increasingly privatized—from foster care and transportation, to public schools and prisons—outlining commonalities between them, and recommending ways to undo some of the harms of private contracting.

One area the report focused on is charter schools, which are publicly funded but privately managed. While income inequality is a concern for these schools—charter teachers are generally non-union, work more hours, and earn less money on average than their traditional public school counterparts, In the Public Interest also delves into concerns of oversight and segregation, issues common among increasingly privatized sectors.

The heated debate over whether charters are “public” or “private” tends to grow quite muddied, particularly as most charter schools are structured as nonprofits. Charter supporters point out that these schools are open to all students, funded by taxpayers, and free to attend—ergo, public. Critics say that charters are happy to take advantage of public laws and benefits when it suits them, and claim private status otherwise. The dean of Harvard’s Graduate School of Education, Jim Ryan, remarked in an interview earlier this month that he “scratches his head” when he hears that charter schools are efforts to privatize public education, and that “it’s hard to see how [such claims] have a lot of merit.”

Donald Cohen, the executive director of In The Public Interest, hopes the group’s new report can help cut through some of this confusion, and provide progressives with a more useful way to conceptualize privatization in public education. “People tend to think privatization is about giving it to the private sector, or a private corporation,” he says. “But privatizing is more than that. It’s when there is less public control, fewer regulations, and more governance by market forces.”

And despite two recent National Labor Relations Board decisions that found charter school employees to be private-sector workers, Cohen says this shouldn’t deter progressives from viewing the teachers who work in charters as public employees.

“If you’re a subcontractor working as a janitor in City Hall, or a subcontractor picking up trash around a neighborhood, you’re still providing a public service,” he says. “There’s a falsehood that we can create through subcontracting that they’re not our employees, and our responsibility.” In The Public Interest’s report argues that when governments directly provide services, they generally offer living wages and decent benefits to workers. But when private companies take control, they tend to slash labor costs, hurting not only individual workers and their families, but also local economies and the stability of middle- and working-class communities.

For Cohen, the nonprofit/for-profit debates also tend to obfuscate some larger issues regarding regulation and public control. He notes that nonprofit charter schools still regularly contract out their operations to for-profit companies anyway. And while traditional public schools also engage in some level of subcontracting, the public’s ability to review the deals and financial contracts their school makes with private companies, paid for by tax dollars, is made far more difficult when those institutions are nonprofits and for-profits.

As a result, education advocates have started to push for laws that would require greater accountability and transparency in the charter sector—lifting up unacceptable instances of fraud, discrimination, and abuse. A report issued in 2014 by the Annenberg Institute for School Reform laid out some concrete policy recommendations, many of which have been since promoted by teacher unions across the country.

Lastly, In The Public Interest’s new report also discusses the ways in which charter schools accelerate the racial and economic segregation of public schooling—something they say is common for sectors that grow increasingly privatized. They cite research from the Civil Rights Project at UCLA showing that charter schools are more racially isolated than neighborhood public schools in almost every state and large metropolitan area in the country. Rapid charter growth, coupled with increased segregation, In The Public Interest says, helps to destabilize school finances, resulting in fewer resources, particularly for students of color, disabled students, and poor students.

I asked Cohen what he hopes to see come out of this new study. “Look, this is a big, deep, and dense report,” he answered. “We deal with privatization and outsourcing in a million pieces—the charter schools here, the prisons there. We wanted to say no, there’s something bigger going on here that’s a significant contributor to growing inequality. And that’s the slow and steady transfer we see from public responsibility to private responsibility.”

School Choice and the Chaotic State of Racial Desegregation

Originally published in The American Prospect on September 15th, 2015.
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In 2013, a group of white parents in northeast Arkansas tried to transfer their children out of the predominately black Blytheville School District. Like many low-income, majority-black districts, Blytheville’s schools are struggling: state officials recently labeled two of its schools as “academically distressed.”

That same year, the Arkansas state legislature passed a law allowing students to transfer between school districts, unless their local district still had a federal order to desegregate. Blytheville said it was indeed still under federal mandate, and thus the white parents could not transfer their children out. The parents sued, arguing that Blytheville’s desegregation order had ended decades ago, and that they had a constitutional right to switch districts. In 2014, a district court dismissed the case,and on August 31st, the Eighth U.S. Circuit Court of Appeals upheld the lower court’s decision, ruling that the Constitution doesn’t guarantee public school choice. On September 11th, the plaintiffs filed a petition for rehearing.

Whether or not the parents prevail, the Blytheville legal battle reveals a lot about the confused state of school desegregation six decades after Brown v. Board. While the appellate judges focused on whether the plaintiffs’ claims were matters of constitutional import, they sidestepped on whether Blytheville is, or isn’t, still under federal desegregation. That question will surely be litigated in the future, but as it turns out, it’s a surprisingly difficult one to answer, and not just for Blytheville.

In hundreds of cities nationwide, parents, school officials, and even legal experts have struggled to figure out exactly where districts once under federal desegregation now stand. Decades of bad record keeping and lax federal oversight have significantly undercut the power of court-ordered desegregation, and a growing movement around school choice has made the policy discussions around structural racism even that much more complex.

IN 1989, ARKANSAS passed a school choice law that permitted students to transfer to neighboring districts, depending on their race. “No student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds the percentage in the student’s resident district,” the law stated. It was an attempt to both promote school choice while also prevent the resegregation of Arkansas public schools. But in 2012, a federal court ruled the statute unconstitutional under the Fourteenth Amendment. The Public School Choice Act of 2013, passed to replace the 1989 law, allowed students to transfer between districts regardless of race, but placed several new restrictions on transfers. Legislators said that transfers could not result in a net enrollment change of more than 3 percent for each district, and that districts still under federal desegregation can be exempted from the law.

During the 2013-2014 school year, 23 districts, among them Blytheville, claimed exemption from the new Public School Choice Act, out of a total of 232. To claim exemption, districts just had to notify the Arkansas Department of Education that it planned to do so. “There appears to be no process in place for validation of these exemptions, theoretically allowing any district, regardless of history of desegregation, to claim an exemption,” University of Arkansas researchers wrote in a 2013 report. They found that six of the 23 exempted districts did not even cite a specific court case when they notified the state Department of Education. And some cases that districts did cite raised questions of legitimacy or relevancy. Attorneys representing the Blytheville parents, for example, argue that the school district inappropriately cites Brown v. Board of Education, a local desegregation order that was dismissed in 1978, and a voting rights case from 1996.

“State officials, reluctant to tread on the ground of federal litigation, refuse to challenge these claims,” wrote the attorneys in their petition for rehearing filed last week. “Thus, using old federal cases, districts falsely claim unfinished desegregation obligations to nullify state education policy and rights. Citizens cannot intervene in those closed cases to stop this farce.”

I was surprised to hear that Arkansas state officials could not validate districts’ requests for exemption by referring to a comprehensive list of schools still under federal desegregation. Surely this all must be tracked somewhere? But upon further investigation, I learned that determining which districts are still under federal order turns out to be a far messier and legally murky process than I initially understood.

A report published in 2007 by the U.S. Civil Rights Commission found that as of May 2007, the United States remained party to 266 lawsuits with active court-ordered desegregation mandates. “There are, of course, many more such cases to which the United States is not a party, but no comprehensive list of these cases currently exists,” the authors wrote. “Moreover, many cases were initiated in the late 1960s and early 1970s and the original players have either moved on or in some cases passed away. In such instances, not even the school districts understand the scope of the court orders that bind them and little reliable information exists that can provide a complete picture as to the nature of ongoing court-ordered desegregation.”

I reached out to Sean Reardon, a Stanford sociologist who has been tracking the impacts of school districts released from court-ordered desegregation, to learn more about why people can’t seem to agree on whether districts are still under federal mandate.

He said that when researching whether districts were still, or had ever been, under federal desegregation, he and his colleagues learned it was a harder question to answer than they had originally expected. “We’d call up people at school districts and sometimes we’d talk to them, and we’d talk to the lawyer, or the central office administrator, or the secretary, whoever would answer questions, and sometimes even the legal office didn’t seem to really know the answer,” he said. Nikole Hannah-Jones, a journalist, cited similar issues in a 2014 ProPublica investigation, finding that, “officials in scores of school districts do not know the status of their desegregation orders, have never read them, or erroneously believe that orders have been ended.”

With the passage of time, poor record keeping, and a lack of consistent court oversight, many districts had nobody left who really remembered, or cared, what their legal obligations were. “Districts seemed unable to tell us if they were under a court order more often than you would think, or different people would say different things,” Reardon said.

Poor record keeping helps explain some confusion, perhaps even for many of the 23 Arkansas districts that claimed exemption, but it didn’t quite clarify what’s going on with Blytheville—where attorneys do point to a specific case, Franklin v. Board of Directors of Blytheville School Dist. No. 5, as evidence that the district is no longer under federal desegregation. A district judge dismissed Blytheville’s court order in 1978, without appeal. So what exactly is there to debate here?

“There’s also a fuzziness about what it means to be ‘released’,” said Reardon, largely thanks to judicial developments in the early ‘90s. In its Board of Education of Oklahoma City v. Dowell decision, reached in 1991, the Supreme Court created the concept of “unitary status”—a designation that could be applied to districts found to have complied with desegregation orders “in good faith.” Unitary status meant districts could be released once and for all from court oversight, even if resegregation was likely. And one year later, the justices ruled in Freeman v. Pittsthat districts could be released from desegregation in phases, rather than all at once.

“I’ve never gotten a clear understanding of what it means to be ‘unitary.’ I think it’s a slippery concept, it’s harder to nail down,” said Reardon. “I can imagine, based on the people I’ve talked to in different districts that there could be cases where people think they’d been released and some people think they weren’t because they were relying on different criteria and different definitions.”

Blytheville was released from desegregation before the concept of unitary status came about, and this seems to be at the crux of the contemporary legal dispute. In December 2014, U.S. District Judge Kristine G. Baker found Blytheville to still be under desegregation and wrote, “The Court acknowledges plaintiffs’ argument that, for many years after 1978, the BSD did not operate as if it were under a desegregation order or agency mandate. The Court views this as irrelevant to the issue of whether the district court declared, explicitly or implicitly, that the BSD achieved unitary status, and the Court views the district court’s lack of a finding of unitary status as controlling.” In other words, the judge said that without a unitary status designation, Blytheville can’t consider itself released from its desegregation mandate.

BLYTHEVILLE-SPECIFIC QUESTIONS aside, Arkansas legislators are still left trying to craft fair and equitable school choice policies. The 2013 law was updated this year, and the new version requires school districts that seek exemptions to “submit proof from a federal court” that they are entitled to one.

But issues still remain. “Districts must show documentation in the new law, but it’s not actually that effective because no one sorted out what it means to have documentation,” said Gary Ritter, a professor of education policy at the University of Arkansas. “People are still citing Brown v. Board.”

Open-enrollment advocates argue that school choice increases healthy competition between districts, and creates more equitable opportunities for disadvantaged students. They also believe that school choice allows more families to access schools that fit their particular needs.

Critics worry that school choice policies will disproportionately hurt low-income students and racial minorities, since the more advantaged students with the means and ability to leave struggling districts are more likely to do so. Social science researchers have found that segregation and school choice policies are often closely linked. When Minnesota instituted an open-enrollment program in 1988, researchers found that it led to increased segregation, as more white students left racially diverse districts to attend predominately white ones

So far, this has not been a major issue in Arkansas. A University of Arkansas policy brief published in February found there to be “very little change in the percent white enrollment due to school choice” since the 2013 law was enacted.

Open-enrollment advocates also note that however well-intentioned, the current law effectively denies choice to students who attend some of the lowest-performing schools in the state—those who might benefit the most from leaving. Exempted districts have a higher proportion of ethnic and racial minorities, have more students eligible for free or reduced lunch, and have lower student achievement and graduation rates, on average, than non-exempt districts.

However, Arkansas does not guarantee free transportation for all students traveling between districts, which suggests that even if no districts were exempt, low-income students whose parents could not afford to transport them to and from school each day would still be less likely to benefit from interdistrict school choice.

Ritter thinks that the state will have to ultimately be clearer about what qualifies as a meaningful reason for exemption. “We have lawyers at the Arkansas Department of Education (ADE). I get that there is some gray area about what exactly constitutes desegregation, but in my view, the ADE should come up with a set of rules, apply those set of rules, and generate a list. And maybe it needs to go to a court and the judges need to figure out if that’s a reasonable set of rules, but I imagine that would be better than go through all this ambiguity.”

The political and legal questions that Arkansas is wrestling with mirror the broad tensions that school districts throughout the country face: how to promote school choice without fostering racial segregation—admirable, but often incongruous goals.