How to Get Around the SCOTUS Ruling

In Sunday’s The New York Times, Jeffrey Rosen questions whether the Supreme Court’s ruling (PDF) against using race as a factor in placing students in public schools will actually have an effect. As he notes in the middle of the column, there are a number of ways for school districts to get around the affirmative action debate while promoting diversity in schools.

As I told my friends Kat and Steve (and some other girl who didn’t know what she was talking or hearing about) Friday night over beers at the Longbranch, I think the best way to accomplish this would be to use socioeconomic status as the determinant of which student attends which school. While I agree that one’s race continues to be an impediment to advancement, socioeconomic status is, too — and it’s more widespread. Not only will minorities be able to take advantage of better-funded schools and interact with students from households different from their own — all those kids stuck in the bottom rungs of society will, too.

“This [court decision] affects only the tiny percentage of school districts that use race to assign students, and even in those districts, like Louisville and Seattle, it won’t be consequential because there are so many opportunities for committed school boards to circumvent it.”

In his concurring opinion, Justice Kennedy invited school districts to explore “narrowly tailored” ways of pursuing their compelling interest in “avoiding racial isolation.” Some critics of government-sponsored affirmative action believe that this may allow school districts to pursue racial diversity by indirect means.

“School districts are going to continue to do indirectly what they tried to do directly,” says Peter H. Schuck of Yale Law School. “They will feel the same pressures to reduce racial isolation, and they will look for proxies for race.”

Some scholars who support affirmative action also agree that public schools will use proxies for race — like neighborhoods, socioeconomic status, or single-parent households to achieve their goals. “I think what you’ll see is schools avoiding talking in racial terms, and talking in more vague terms about a diversity of backgrounds,” says David A. Strauss of the University of Chicago. “There will be another layer of bureaucracy, but I wouldn’t expect a large-scale retreat from what public schools have tried.”

Rosen also refers to Texas and California’s bans on affirmative action, and notes that the “success” of the states’ replacement diversity-improvement solutions are based on the fact that whites, blacks and Hispanics are segregated by neighborhood.

After Texas and California banned affirmative action in the 1990s, officials in both states guaranteed admission at the top public universities to a certain percentage of the class at every public high school, regardless of the school’s quality. Because of segregated housing patterns, this somewhat reduced the fall in the numbers of enrolled African-American and Hispanic students.

“If you judge by what happened in California, you’ll see some drop in minority enrollment but not as huge a change as some people expected,” says John Yoo, a former Bush Justice Department official who teaches law at the University of California at Berkeley. “School administrators and bureaucrats are so heavily invested in the idea of diversity that they will try an amazing array of policies to get around the ban of the use of race.”

For some reason — and maybe this is illogical and unfounded, I find it almost a little racist to depend on such neighborhood segregation as the determinant of school population. It reinforces the segregation of housing patterns. I just feel like the state is profiting (i.e. “meeting its obligations to the people by meeting diversity goals”) at the cost of continuing racial divisions within our society. But maybe I’m just overly sensitive.

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