U.S. Supreme Court Rules on Race in School

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The latest ruling by the United States Supreme Court prohibits school systems from considering race when assigning students to schools. Theodore Shaw of the NAACP Legal Defense and Educational Fund and Carol Swain, a law professor, discuss the impact of the controversial decision.


I'm Michel Martin. This is TELL ME MORE from NPR News.

Coming up: We hear about last night's Democratic presidential debate from a panelist.

But first, advocates on both sides are weighing in on the Supreme Court's ruling on diversity in public schools. A narrowly divided court struck down programs in Seattle, Washington and Louisville, Kentucky that used race as a tiebreaker in determining student admission to sought-after public schools.

Those school systems had argued that they were trying to create a diverse student body. Opponents argued that the plans constitute unlawful discrimination.

With us to talk about the decision is Theodore Shaw. He's the director-counsel and president of the NAACP Legal Defense and Educational Fund. He joins us from his office in Washington. Also with us is Carol Swain, a professor of political science and law at Vanderbilt University. She's on the phone from Princeton, New Jersey.

Welcome. Thanks for speaking with us.

CAROL SWAIN: Thank you.


MARTIN: Ted Shaw, how significant is this decision? Are there really that many districts with these kinds of programs?

SHAW: There are school districts all around this country. It's hard to say exactly how many have continued attempts to voluntarily integrate public schools, and so the opinion has some significance. And then we have to view these cases in a broader context of an ideological battle over how appropriate is it to voluntarily and consciously address racial inequality in any context.

MARTIN: Do you consider it a major setback?

SHAW: I think that the decisions yesterday were a major setback for voluntary integration, although there's a silver lining in these cases. The silver lining is that even though these two cases were struck down, Justice Kennedy refused to join the plurality opinion written by Chief Justice Roberts. And he was very explicit about why, and he refused to join because he says that school districts ought to be able to try to desegregate schools and to pursue diversity, and that government ought to be able to do that.

MARTIN: But I don't understand. What is the force of - that it was a concurring opinion with the majority result, but had a different reasoning. But - so what's the force of that in law?

SHAW: The force in law is that, you know, that may ultimately be what controls here. You think back to the Bakke decision in 1978. It was a 4-4-1 decision in which Justice Powell's opinion was little understood at that time. But that ended up really being the opinion of the court. And it was on that opinion that affirmative action on higher education was sustained for 25 years until we affirmed in the Grutter case, a University of Michigan case a few years ago.

This decision very much resembles the Bakke decision in terms of the alignment. It's more of a 4-4-1 decision in which the opinion written by the chief justice looks like it's the majority opinion, but it may not be the controlling opinion. It may be that Kennedy's opinion is what controls here.

MARTIN: Okay. Carol Swain, what's your view of the decision?

SWAIN: To the extent that it causes minority supporters and advocates for equality to become more creative and strategic when it comes to addressing the problems of secondary education that it can have a good benefit, because it causes people not to count on the courts or to count on, you know, state and local governments to solve the problems of the black community. And these programs always only affected a small number of minority students and not the whole group.

MARTIN: Why do you say that?

SWAIN: Well, in the particular cases, some of the numbers that have been thrown about, it was a smaller number of white students affected, minority students affected. Most African-Americans, I think, in the South - and Ted will correct me if I'm wrong - attend schools that are pretty segregated, unless they're middle class. And that's just the way it is and we need to focus on improving their educational experiences and outcomes in those schools where they are trapped.

MARTIN: Ted Shaw, what about that point? Is there any proof that racial diversity actually improves the educational experience for students?

SHAW: Well, there've been some studies that indicate that there are modest educational gains in integrated education, and then other studies that say that students who attend racially integrated schools are more likely to relate better in a work environment and other ways.

But Carol is right about the way this country has been going with respect to school segregation. About 40 percent of the students who are African-American in this country attend schools that are hyper-segregated, 90 percent or more black and Latino. And somewhere around 75 percent of the black students in this country attend racially identifiable schools.

But I don't think we should confuse the imperative to improve education for all students and especially for African-American and other students of color, which we all agree with. We've got to do that. But we shouldn't confuse that with the issues of segregation and the often economic isolation that comes along with it among racial lines.

MARTIN: But I think Professor Swain's point was that, you know, we're 53 years after the landmark Brown case, which required schools to desegregate, and the schools are still segregated and still - I think in the view of many - functioning poorly for many minority students. I think Professor Swain's point is that perhaps the energy ought to then be focused on improving educational quality, and that this integration efforts are just not that productive. What would you say to that?

SHAW: Well, I think the it's not either/or, and nothing in our experience in this country teaches us that racially segregated schools for African- Americans work very well in terms of opening up avenues and mainstream opportunity. I think that the promise of Brown was a promise of a diverse America. It respects all culture, but also opens up opportunities for African- Americans in particular in the mainstream. Segregation is a prelude to other forms of discrimination and depravation, including an inferior education.

MARTIN: We're talking about the Supreme Court's decision, addressing the use of racial factors in placing students in public schools. Professor Swain, what about the argument - two arguments here. One is that this is an increasingly racially diverse society, that really the schools - all schools need to be doing all they can to prepare students to live in a multicultural world. And what about Ted Shaw's point, is that segregation leads to isolation and that racially isolated schools tend to have access to less resources? What about that point?

SWAIN: Well, first, I agree that diversity has many positive benefits. And as a professor, some of our best classes are those classes where you have students from different backgrounds, whether they're socioeconomic or racial, that brings that group's perspectives to bear on the issue. So there are benefits that come from that.

But my concern is the fact that there are so many minorities that are trapped in those inner city schools, and I believe to the extent that this Supreme Court decision forces more people to look at that situation and try to address it, the society is better off.

MARTIN: I also got the impression that you feel that this integration schemes benefit relatively a few students, that those students are predominantly middle class and they don't effect...


MARTIN: ...the students of lesser needs. But isn't there - forgive me - but is there a bit of a tautology in that? I mean, would the middle class exist were it not for integration efforts, were it not for the legal framework to end segregation in this society?

SWAIN: I don't know, because I think about myself that I started off in a racially segregated school. And I think about my grandmother, you know, who went as far as she was allowed to go at that time. She was well educated for someone that only went to the eighth grade. That was the highest level they had at that time at a predominantly black school.

And for myself, when schools did integrate, I did not find myself behind. And I'd always heard that whites were smarter than blacks. And to my surprise, I did not find them smarter than I was. I did not find them necessarily better prepared.

I believe that black students can get quality education in segregated schools that will allow them to compete in colleges and universities that admit them, and that what has happened has happened, and maybe there'll be a change in the composition of the court at some point, and you'll get a different decision.

But for now, I think we have to deal with the practical reality of yesterday's decision, and that means to strategically engage in coming up with new ways to address the situation that we're in now - the one where blacks and some Hispanics are doing much worse than they should be in segregated schools.

MARTIN: Ted Shaw?

SHAW: Well, Carol and I agree on the need to address that gap in academic achievement and performance. One of the interesting things in what Carol just said goes to the ability to even dispel the myth of white superiority. She had that opportunity once she began to compete with and against white students, and I think that's valuable in and of itself.

Desegregation doesn't rest upon the premise that there's something magic about white children and rubs off on black children. At the same time, in 21st century America and in a global economy, to be stepping back toward segregation in public schools and accepting that is as backward as one could possibly be. It doesn't make sense. It is destructive, and it runs counter to the reality that this is a diverse country getting more and more diverse, and the law should not be walking in the opposite direction of reality.

MARTIN: Ted Shaw, I wanted to ask - I talked to one of the plaintiffs in the Seattle case earlier this week, one of the parents. And she argued that diversity is happening anyway, that the diversity would happen without this kind of governmental intervention. Do you buy that?

SHAW: Well, I think that we are recognizing our diversity more and more. But the question isn't one of just governmental intervention. The ultimate question is whether or not people can consciously try to address racial inequality. So it's not quite as simple as an issue of whether the government is going to be engaged or not in one way or another.

The question is whether the government is going to play a role that is segregative, or a role that allows for integration. That's the question that is before the court. And unfortunately, I think yesterday's decision was a step in a wrong direction.

MARTIN: Carol?

SWAIN: I think that yesterday's decision still leaves open an opportunity for people that care about diversity to try to use race neutral means, and some of them can be - get around social class, to achieve the same outcome. So you could still use voluntary efforts to try to promote diversity, but they cannot be predominantly about race.

MARTIN: Carol Swain is a professor of political science and law at Vanderbilt University. She joined us by phone from Princeton, New Jersey. And Theodore Shaw is director-counsel and president of the NAACP Legal Defense and Educational Fund. He joined us from his office in Washington. Thank you both so much for speaking with us.

SWAIN: Thank you.

SHAW: Thank you.

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