On Sunday, Dec. 3, two Teachers College graduate students and I traveled from New York City to Washington to camp out in front of the U.S. Supreme Court. We were in line to get the few public tickets for the Monday morning oral arguments in the Jefferson County, Ky., and Seattle voluntary-school-integration cases. As the night wore on, we were joined by cold but guardedly optimistic lawyers and advocates, who, like us, support the school districts鈥� position that they have a compelling interest in using race as one factor in how they assign students to their schools.
Periodically throughout the chilly night, I looked at the stone steps and pillars of the court building and recalled the picture taken there more than 50 years ago of a young but hopeful Thurgood Marshall. He and his colleagues at the NAACP Legal Defense and Educational Fund had come to speak truth to power in the school desegregation cases that were decided in the landmark Brown v. Board of Education decision. And, as the world now knows, power listened.
Ruling in Brown to reject the 鈥渟eparate but equal doctrine鈥� previously established in Plessy v. Ferguson, the Supreme Court of 1954 found that the evidence of the negative impact of segregation is 鈥渁mply supported by modern authority.鈥� This statement was supported by the court鈥檚 famous footnote 11, which cited not only the legendary doll studies of Kenneth B. Clark, but also six other studies on the effects of racial segregation, including Gunnar Myrdal鈥檚 An American Dilemma.
This footnote and the authority it implied inspired me to become a social scientist who studies such issues today, to speak truth to power and make a difference. If seven studies could provide the grounds for declaring an established system of de jure racial segregation unconstitutional, there seemed every reason, on Dec. 3, to expect that the literally hundreds of studies cited in multiple briefs submitted in these current cases would carry at least comparable weight.
Mounds of research evidence may not matter much to a Supreme Court majority bent on interpreting the 14th Amendment to the U.S. Constitution as barring any race-conscious policies whatsoever.
After all, 53 years have passed since the oral arguments in the Brown cases. Thousands of public schools have been racially integrated during that time (although thousands more could have been), and hundreds of studies have been conducted on the impact of desegregation on students, schools, and society. This research was described and woven throughout the legal arguments in the 51 friend-of-the-court briefs filed in support of the Jefferson County school district, which includes Louisville, and the Seattle district.
My students and I had written one such brief, co-signed by some of the most prominent scholars in the field, on the long-term effects of school desegregation on the people who live through it. We argued, based on a review of prior research and our own in-depth interviews with nearly 300 adult graduates of desegregated schools in Louisville, Seattle, and six other cities, that the people who really know the value of racial diversity in public education鈥攁nd who have benefited from it the most鈥攁re the graduates of desegregated schools.
What these graduates of desegregation tell us is that their school experiences prepared them to live, work, and interact with people of other racial backgrounds, allowing them to function more easily in an increasingly diverse society and a global economy. They say that the lessons learned in school about crossing cultural boundaries have been some of the most valuable lessons of their lives. One Seattle graduate, who worked for a global corporation, explained to us that learning to get along with the mix of students in his public schools had provided a 鈥渟tep down that path of being comfortable with people of a variety of races.鈥�
But our research is only the tip of the evidentiary iceberg. The Civil Rights Project at Harvard University submitted a 鈥渟ocial science statement鈥� to the court, providing a broad overview of the literature on how racially diverse schools affect student attitudes and achievement, on the harms of segregation and concentrated poverty, and on the difficulty of accomplishing racial diversity without race-conscious policies. An overwhelming 553 social scientists signed on in support of that statement.
Most of the other 49 briefs on the school districts鈥� side argued, directly or indirectly, that the social science research evidence was strongly in favor of the Jefferson County and Seattle districts鈥� decision to voluntarily racially balance their schools. Organizations such as the American Educational Research Association, the American Council on Education (and 20 other higher education organizations), and the American Psychological Association submitted briefs supporting the districts, based on the overwhelming social science evidence in favor of racial integration.
Meanwhile, the social science evidence cited in the handful of briefs submitted in support of the plaintiffs or petitioners鈥攖he white parents who sued the districts and, in Seattle, a corporation supported by conservatives鈥攊s scant at best. As Anurima Bhargava, the assistant counsel at the NAACP Legal Defense and Educational Fund, noted in a panel discussion at Teachers College, when comparing the number of social scientists who support the school districts to those who support the plaintiffs, 鈥淚t鈥檚 553 to six.鈥�
The evidence is clearly on the side of districts that attempt to racially balance their schools. The body of research to date demonstrates beyond a reasonable doubt that school districts have a 鈥渃ompelling state interest鈥� in promoting desegregation even in the absence of court orders that require them to do so. Yet, what we learned on the morning of Monday, Dec. 4, during the oral arguments in these cases, is that the mounds of research evidence may not matter much to a Supreme Court majority bent on interpreting the 14th Amendment to the U.S. Constitution as barring any race-conscious policies whatsoever.
As the two hours in the courtroom ticked away, it became increasingly obvious that at least four and perhaps five of the justices wanted to separate the 鈥済oal鈥� of racially diverse schools鈥攁 goal that few can or would dispute鈥攆rom the 鈥渕eans鈥� by which that goal is achieved. In other words, it is fine to have a goal of racial balance, but it is not OK to use racial classifications of students as the means to get there. Justice Anthony M. Kennedy, the likely swing vote in these cases, repeatedly revealed how conflicted he was about this distinction. The conflict was perhaps most apparent when Justice Kennedy was questioning the U.S. solicitor general, the Bush administration attorney who supported the plaintiffs by arguing that while school districts have an 鈥渦nquestioned interest鈥� in reducing 鈥渕inority鈥� student isolation, they cannot use race-conscious means鈥攐r racial classification of students鈥攖o achieve it.
Justice Kennedy asked, 鈥淚sn鈥檛 it odd jurisprudence where we have an objective that we state in one set of terms but a means for achieving it in another set of terms?鈥�
It is worth noting here that several of the friend-of-the-court briefs, as well as the social science statement mentioned above, cite extensive research on the failure of race-neutral 鈥渕eans鈥� as a way to achieve the 鈥渙bjective鈥� or 鈥済oal鈥� of racial balance in public schools. The argument is also made in several of these briefs鈥攔elying on legal, historical, and social science evidence鈥攖hat race-conscious policies and programs are still needed to overcome the ongoing and multifaceted racial inequality in our society. These briefs also argue that only race-conscious policies will dismantle the insidious de facto segregation in housing that was once strongly sanctioned by the federal government鈥檚 housing and lending practices, and then perpetuated across generations so that it still strongly defines neighborhoods and public schools today.
The Supreme Court will have until the end of June to rule in these cases. At the end of the day, these nine justices will have to decide whether the means used by these two school districts justified their goal of racially balanced schools. No one knows what role the social science research will ultimate play. If the court, especially Justice Kennedy, is bent on ending attempts by school districts or other government entities to acknowledge our country鈥檚 history of racial inequality and segregation and create race-conscious programs to address that legacy, then they (and he) will do so, regardless of the evidence that this will result in far fewer educational opportunities for poor students of color.
Such a ruling would fly in the face of powerful social science evidence that speaks the truth, just as the much smaller body of research did half a century ago in the Brown cases. That simple truth is that there is no basis, except for political ideology, to render such a decision. But the harsh reality is that it would be a decision we would all have to live with鈥攐n our separate and unequal terms鈥攆or many years to come.
