By Paul Schneider

Paul Schneider is a senior in Yale’s Trumbull College.

On September 4, 1957, nine black teenagers tried to do something unheard of—walk through the front doors of Central High School in Little Rock, Arkansas. As if the vitriol of the violent segregationist protest was not enough to keep these brave souls from an education alongside their white peers, a detachment of the Arkansas National Guard was there to ensure they would not enjoy such a privilege. The nine returned to school less than two weeks later, this time under the escort of the 101st United States Airborne Division. This was President Eisenhower’s idea of dealing with race in education.

Almost half a century later, Justice Sandra Day O’Connor wrote for the U.S. Supreme Court majority in the landmark case Grutter v. Bollinger, nixing a University of Michigan Law School affirmative action program but leaving open the possibility of more narrowly tailored policies aimed at promoting racial diversity. She added, however, that the use of all racial classifications should expire in 25 years. Whether this seemingly arbitrary declaration acts as a mandate or a mere prediction remains an unanswered question.

Now, just four years later, we may be upon the final two decades of race-based policies in education. Will America soon be a place where these policies are no longer needed to ensure a level playing field? Regrettably, this notion is irreconcilable with reality. The recent flood of performance data in the wake of the No Child Left Behind Act illustrates in sharp relief a racial achievement gap that is going nowhere. Regardless, our already limited use of race as a tool to solve racially defined problems may soon expire. State constitutional ballot initiatives in California, Washington, and Michigan spanning the last decade plus have prohibited state actors from using race as a factor in their decisions, severely limiting school policies and judicial remedies. More of these propositions will soon appear on ballots in other states. The green and hungry conservative Supreme Court recently set its sights on racial considerations in K-12 enrollment plans as well.

Brown Reconsidered

In 2000, Andy Meeks, a ninth-grader in Seattle suffering from ADHD and dyslexia, wanted to enroll in a special biotechnology program whose hands-on instruction was a natural fit for his unique learning style. Despite being accepted into this selective program, Andy was denied a transfer to its host high school because of his race. Two years later and some 2,400 miles away, five-year old Joshua McDonald and his mother moved to Louisville and wanted to enroll in the neighborhood elementary school but found it already full. Their request for enrollment in another nearby school was denied because of Joshua’s race.

Andy Meeks and Joshua McDonald were both white.

The problem was that the schools they wished to transfer into were predominately white. Andy and Joshua were denied transfers because, if allowed, they would contribute to racial isolation in the schools and upset the desegregation efforts underway. These two young men will probably have more impact on race in elementary and secondary schools over the next half-century than anyone else. Suits filed against their respective school districts reached the Supreme Court together last year and were resolved this summer. In a splintered opinion, the Court held that avoiding racial isolation and promoting more general diversity—of which racial diversity may be a part—are compelling interests for educators. They manner in which Seattle and Louisville pursued those goals, however, were not sufficiently narrowly tailored to justify the distribution of privileges based on race. Justice Kennedy explained, “School authorities concerned that their student bodies’ racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race.”

While Justice Kennedy’s was the prevailing opinion of the Court, two less restrained factions also issued opinions, each claiming to remain true to the spirit of Brown. Chief Justice Roberts and his conservative plurality unabashedly claimed that diversity in the K-12 context where there was no prior segregative intent could never be an interest compelling enough to justify the use race as a tool. “The best way to stop discrimination on the basis of race,” Roberts wrote, “is to stop discriminating on the basis of race.” He meant, very simply, that there is no meaningful distinction to make between actions that seek to isolate the races and those that seek to bring them together. Neither is permissible. In other words, Roberts whispered, “Let’s pretend race does not exist.”

On the other hand, Justice Breyer and his liberal colleagues brazenly interpreted the case law to allow race-based school assignment and transfer plans in the context of de facto segregation where there was never any segregative intent on the part of a state actor. To this faction, interest in a racially diverse school system was sufficiently compelling. Significantly, they believe that the goal for which race is used must favor integration. In support of the Seattle and Louisville plans they wrote, “The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.” In other words, Breyer declared the plurality opinion a bastardization of the spirit of Brown.

Both Court factions represent views that are at once courageous and traditional in the contemporary jurisprudence of race and education. The conservatives envision an America in which every person is free from classification and treatment on the basis of race, a literal reading of the Equal Protection Clause of the 14th Amendment. The liberals recall Justice Thurgood Marshall’s dissent in Milliken v. Bradley, envisioning an America in which the races are educated in integrated schools, “for unless our children begin to learn together, there is little hope that our people will ever learn to live together.”

Despite the strength of both of these arguments, the factions ignored the equally valid competing claims. Justice Kennedy warns, “Fifty years of experience since Brown should teach us that the problem before us defies so easy a solution.” The decisive opinion affirms the constitutionally permissible middle ground between passive bystander and intrusive, though perhaps benign, racist. Such flexibility shows a commitment to the principle that judicial scrutiny of racial classifications is strict in theory, but not fatal in fact.

Integration: For what? Of whom?

In the late eighteenth century founding father Thomas Jefferson developed his views on the emerging American meritocracy and education’s role in it. Jefferson, a zealot for knowledge and liberty, believed that education was indispensable to the prosperity of democracy. The lifelong owner of slaves and the likely father of some of them, Jefferson also once wrote that blacks and whites “cannot live in the same government. Nature, habit, opinion has drawn indelible lines of distinction between them.” Thomas Jefferson represents the onerous complexity of race and education in America.

Almost two centuries later at Central High, when Jefferson Thomas, just three days into his fifteenth year of life, faced guns and armor in the hands of purebred American racism, he did not back down. Young Jefferson endured physical and verbal abuse at Central High until his graduation three years later. He never gave up. In a recent New York Times interview 50 years since he faced the National Guard, Jefferson said, “I had to stay there. I had to make what happened worthwhile. So I kept going back. I said, ‘As long as I can walk, I can walk up those steps into Central this day.’” Jefferson Thomas represents the astonishing courage with which countless minority students and their families bore and continue to bear the onerous complexity of race and education in American public schools.

Now, half a century later, Americans must reconsider race and education in order to reconcile not only Thomas Jefferson with Jefferson Thomas, but them with Joshua McDonald and Andy Meeks as well. The Supreme Court has clearly decided that school authorities cannot use race in a way that treats students systematically on an individual basis. Except where the courts are still overseeing mandatory integration of schools that were segregated by law, we are beyond the possibility of racial integration for the sake of racial diversity alone. Instead, our new paradigm is the equal treatment of all students, regardless of their race. Education is becoming colorblind. Nevertheless, we see black and white performance differentials in vivid contrast. Faced with undeniably unequal outcomes, reformers are searching for tools that use equitable inputs.

If the purpose of integration is to provide an opportunity for learning to happen in the context of diverse ideas and backgrounds, perhaps race really is a tool too arbitrary to do the job. At least this is the sentiment among a growing chorus of reformers that suggests socioeconomic status is a better indicator of diversity. How much, the argument goes, can a middle-class black kid and a middle-class white kid learn from each other anyway? Greater intergroup understanding will develop when those groups are defined by their class rather than their race, such reformers argue, noting that income-based remedies to socioeconomic segregation are constitutionally unassailable.

As we inch further down this path, reformers must remember that racial solutions are not dead, and neither are racial problems. Nor will they be for the foreseeable future, almost certainly not in two mere decades. The new jurisprudence of race in education only demands that, when crafting such solutions, students are treated as whole people and not wholly on the basis of their race.

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