ONCE UPON A TIME, the Justice Department’s Civil Rights Division opposed the assignment of students to public schools on the basis of race. No more. Now the division defends schools that want to take race into account in deciding who gets in and who doesn’t. Consider several friends-of-the-court briefs the Clinton Justice Department has recently filed in federal courts.
Montgomery County, Maryland, and Arlington County, Virginia, both have public school systems that treat students differently according to skin color and ancestry, in order to achieve what the administrators deem an optimal racial and ethnic mix in their schools.
The two counties are similar — populous well-off suburbs of Washington, D.C. Their neighborhood schools reflect neighborhood populations — some are mostly white, some mostly black, others mostly Hispanic. Unlike the blacks-only and whites-only schools that the Civil Rights Division worked to desegregate a generation ago, these public schools do not segregate children by skin color or ancestry.
But people have not sorted themselves out into the perfectly integrated neighborhoods of liberal dreams, and the neighborhood schools as a result are considered insufficiently “diverse” by administrators. Moreover, even for the public countywide magnet schools with attractive features parents want (some focus on science and math; some require uniforms), applications sometimes come “disproportionately” from particular groups.
So administrators have intervened to fine-tune the racial mix of the magnet schools and neighborhood schools. For example, a white student might be kept out of a school that was already “white enough” or denied permission to transfer to a school that was “too black.” All very politically correct — and unconstitutional.
Parents in both counties have sued to stop such racial discrimination in admissions. But the Civil Rights Division took the side of the schools, arguing that when “diversity” is the goal, the Fourteenth Amendment’s guarantee of “equal protection of the laws” need not apply. In neither instance was the argument persuasive: The division lost the Arlington case on September 24 and the Montgomery case on October 6.
The Civil Rights Division is defending discrimination not only in elementary and secondary education, but at colleges and universities too. It filed a brief on September 16 defending the right of the University of Washington Law School to discriminate in its admissions in the name of diversity. (Katuria Smith, the white plaintiff in that case, would have been admitted had she been of a different race.)
And the division is defending Alabama’s right to discriminate against a black student who was denied a state scholarship to a historically black school, because Alabama is trying to use the scholarships to encourage more white students to attend the school. The acting head of the Civil Rights Division, Bill Lann Lee, has endorsed racially discriminatory admissions in his speeches.
What the division is not defending is school officials’ freedom to manage their schools as they wish. In fact, it may surprise some to learn, there are literally hundreds of school districts around the country that remain under federal court order because a generation or more ago they practiced racial discrimination in admissions. Indeed, during the Clinton administration, the Justice Department has been most reluctant to return power to local school boards, and has filed briefs opposing the relaxation of judicial management.
One reason is that continued federal involvement allows bureaucrats to block education reforms — like charter schools — that they oppose on policy grounds. Never mind that these reforms help students of all races. At hearings before Congress on October 14, a deputy in the division admitted that it had opposed charter schools in districts it oversees in Louisiana, Texas, Mississippi, and South Carolina.
Continued federal supervision of schools — over 45 years after Brown v. Board of Education was handed down by the Supreme Court — also enables the bureaucrats to insist on fashionable education policies that have nothing to do with ensuring that white and black students are allowed to go to school together. This is vividly demonstrated by 10 consent decrees — one each for 10 school districts — that the division filed on September 10 in the Middle District of Alabama. Here are some excerpts from the decrees.
DISCIPLINE: “If disciplinary figures at an individual school exceed the racial balance of that school by more than 10 percent [one school was at 15 percent; another 5 percent], the central office administrator responsible for discipline shall meet with the principal of that school and the employee responsible for student discipline to determine the reasons for the disparity, and shall include in each annual report the reasons for such disparity.”
EXTRACURRICULAR ACTIVITIES: “Whenever there is underrepresentation of any racial group (minority or nonminority) in any extracurricular activity, the School Board shall conduct a study to determine the cause of such underrepresentation and, where appropriate, develop strategies to address the causes.”
CHEERLEADING AND BANDS: “To the extent practicable, the Board will ensure that the cheerleading squads and bands are racially diverse.”
FACULTY HIRING: “The Board shall notify school principals that hiring qualified minority teachers, counselors, and staff is a priority.” Specifically: “The Board will make every reasonable effort to increase the pool of black applicants. . . . It is expected that the Board’s success in recruiting more black applicants will lead to its success in hiring and retaining more black faculty. . . . [If it doesn’t, the] Board will re-evaluate its recruitment efforts.” Vacancies must be advertised for 20 days “unless the position is filled by a minority.” Emergency hires will not be automatically renewed unless they are minorities. The Board must explain why “any minority applicants were not selected.” There shall be “cultural diversity and sensitivity programs.”
GRADUATION RATES: “The Board shall take all reasonable steps to ensure that the graduation rates and types of diplomas awarded reflect the racial composition as a whole to the extent possible.”
In other words, quotas for everything. The Civil Rights Division now opposes the admission of students to public schools without regard to race, and it uses its authority in desegregation cases to advance policies that have nothing to do with ensuring that students are not assigned to schools on the basis of skin color. It insists on racial counting in everything a school does. My, how times have changed.
Roger Clegg is general counsel of the Center for Equal Opportunity in Washington, D.C.
