… so says Professor David Kirp (Public Policy, Berkeley) in this morning’s New York Times. It’s a piece that begs, I think, of a firm response. And because it’s about desegregating schools, I think it’s appropriate material for this blog. Here’s how his piece gets under way, though you should read the whole thing.
AMID the ceaseless and cacophonous debates about how to close the achievement gap, we’ve turned away from one tool that has been shown to work: school desegregation. That strategy, ushered in by the landmark 1954 Supreme Court decision in Brown v. Board of Education, has been unceremoniously ushered out, an artifact in the museum of failed social experiments…. But as the anniversary was observed this past week on May 17, it was hard not to notice that desegregation is effectively dead. In fact, we have been giving up on desegregation for a long time. In 1974, the Supreme Court rejected a metropolitan integration plan, leaving the increasingly black cities to fend for themselves.
A generation later, public schools that had been ordered to integrate in the 1960s and 1970s became segregated once again, this time with the blessing of a new generation of justices.
The balance of Professor Kirp’s essay, which laments the fading of court-ordered desegregation orders, can be summed up as follows:
(1) Desegregation/integration produces empirical academic benefits for Black students.
(2) Desegregation/integration produces no empirical injuries or drawbacks for White students.
(3) Therefore Desegregation/integration is a good thing.
(4) The courts should support good things.
(5) Therefore the courts should support Desegregation/integration.
To be fair, this is my summary of his work. I could be misrepresenting it, though I obviously don’t think I am.
Now I’m willing to grant him (1) and (2); he’s a public policy expert and presumably he’d know better than I would whether the evidence supports these things. I’ll even grant him (3), so long as we keep it at “a good thing” and not “an unqualifiedly good thing, all-in.” If something gives relevant benefits, and doesn’t have the most obvious sorts of drawbacks one might suspect, odds are that it’s a good thing.
But I seriously question what I’ve presented as his implicit premise (4). Kirp seems to lack a certain understanding of how the law works, as demonstrated by the fact that he has linked to Milliken v. Bradley (418 U.S. 717 (1974)), but doesn’t seem to actually understand what the case is about. That’s a serious charge to level at an academic, so let me explain. Along the way, I think it will become clear both why I think (4) is wrong, and that Kirp does indeed hold it as a view.
Now it’s clear that Kirp likes desegregation/integration. His piece is at its best — and by that I mean it’s affirmatively good — when he’s describing why desegregation is a good thing, why it doesn’t have the sorts of drawbacks you might expect, and how it may one of the most potent forces in education.
But Kirps big problem is that despite his command of its effects, he doesn’t really seem to understand what desegregation is. This may be the most revealing sentence in his article:
Despite its flaws, integration is as successful an educational strategy as we’ve hit upon.
And herein lies the problem: Integration, that is, desegregation, is not really an educational strategy. It’s a court-imposed legal remedy. It’s not just something people do because it seems like a good idea, but rather a remedy for a particular sort of harm, in a very particular sort of case: the case of state-sponsored, or supported segregation.
The thinking of a desegregation order goes something like this: if the state (and by “state” I mean district, township, or other governmental body) is using its power to segregate students by race, that’s a violation of the Equal Protection Clause, and a bad thing. We can justify a race-based response to such bad behavior because it’s the only way to fix the racially motivated problem.
But, like state-sponsored segregation, desegregation orders involve the state making decisions based on race; they are thus are not something to be used lightly. Before you can issue such an order, you have to have the right conditions to justify it.
Kirp seems to think that Milliken is about the Court’s hostility to integration. He even describes the case as a “rejection of a metropolitan integration plan,” as if all that mattered was that the Supreme Court said “No” instead of “Yes.” But law isn’t just a question of outcomes. Law is, fundamentally, a question of reasons and of process. The “why” of this rejection of integration is at least as important (and likely more important) than the mere fact of the outcome.
The Milliken case was one in which the desegregation order that had come down as a result of the urban district’s racial segregation, encompassed a number of districts in the greater metropolitan area that hadn’t been found to have engaged in any of that pernicious behavior. Because discriminating based on race is generally frowned on, and because it wasn’t shown that it was needed to remedy segregation in those districts, the over-ambitious, overreaching desegregation plan was struck down.
This sort of legal reasoning is very different than merely a “thumbs down” on something that, as I conceded above, might very well have some very attractive empirical results.
This sort of reasoning, this attention to the “whys” and the applicability of remedies, is central to the operation of the law, and is the most important lesson of the Milliken case. It is also precisely why the Supreme Court ruled (in another case Kirp cites) that a school district can’t just voluntarily decide to use race as a factor in student assignments to schools. Racial balancing, busing, and desegregation are remedies for state-caused harm.
Now, for all of its wonderful public policy exposition, there is an inappropriate and decidedly non-academic edge to Kirp’s piece, and it comes in the discussion of that case. Kirp disingenuously calls this latter decision’s reliance on the principles of Brown v. Board of Education “bad history”:
And five years ago, a splintered court delivered the coup de grâce when it decreed that a school district couldn’t voluntarily opt for the most modest kind of integration — giving parents a choice of which school their children would attend and treating race as a tiebreaker in deciding which children would go to the most popular schools. In the perverse logic of Chief Justice John G. Roberts Jr., this amounted to “discriminating among individual students based on race.” That’s bad history, which, as Justice Stephen G. Breyer wrote in an impassioned dissent, “threaten[s] the promise of Brown.”
If you’re going to accuse someone of practicing “bad history”, it’s probably a good idea to explain yourself. Kirp doesn’t offer such an explanation; he just calls Roberts’ logic “perverse” and leaves that bald assertion hanging out in the ether. But that’s a strange charge to be making when you don’t seem to have understood the cases that you cite in your own work. Should we just take his word for it?
Kirp may be a good public policy professor — I don’t really know, but if he’s at Berkeley he’s probably pretty skilled. And as I said, his explanation for why integration might be good public policy is quite illuminating. But he’s evidently not much of a legal thinker, and we’re given no reason to think that his history is any better.
He asks, “Integration worked… why have we abandoned it?” (That’s actually the tag line from the web page title, but it sums up his position nicely.) But integration wasn’t adopted because “it worked”. It was adopted on a limited basis to deal with a very specific sort of evil. If you want to be able to adopt it as a widespread pedagogical practice, then amend the Constitution to allow for racial classification for the purpose of producing educational benefits.