SCOTUS Decision Shouldn't End Chapter 220
This is important for Milwaukee, of course, because the Chapter 220 program that ships students of color into the suburbs and -- on a much smaller scale -- white students into the city is based exclusively on race.
Certainly there's more to the decision, but this quote from the majority opinion by Chief Justice John Roberts jumped out at me:
It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the court relied to find a constitutional violation in 1954. . . . What do the racial classifications at issue here do, if not accord differential treatment on the basis of race?There's a curious transition that takes place in that quote between "legally separating children on the basis of race" and "racial classifications" in general. In other words, Roberts argues that any significant consideration of race, whether it's for separation or integration, is discriminatory and, as a result, not in line with the Brown decision or the US Constitution.
Roberts offers a compelling quote from the Brown case in his opinion (pages 39-40) to demonstrate his point. As the brief from the plaintiff in Brown put it: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.”
A corresponding quote wasn't cited from the actual Warren court decision in Brown, and that decision pretty clearly focuses on racial classification for the purpose of segregation rather than the purpose of integration.
But for those seeking absolutism, any state classification of race in public policy -- whether for separation (i.e., bad) or integration (i.e., good) -- is inherently discriminatory, as Chief Justice Roberts argues, since it tries to subjectively differentiate between what's a good use of race and what's a bad use of race, while simultaneously and inevitably placing restrictions on what any other race can do.
In practice, however, there are more considerations. There have been great strides made in race relations since the Brown decision, and many of those strides are a result of a conscious consideration of race when crafting public policy. Did anyone truly expect significant steps to be made, practically speaking, based upon good will and deference to the Warren court?
Much of this harks back to the difference between de jure segregation in the South -- upon which the Brown decision was based -- and the de facto segregation in the North. At the same time of the Brown decision, massive suburbanization was taking place across the North, and much of that suburbanization had an explicitly racial component.
For instance, in the first Levittown that was built in Long Island, NY -- considered by most to be the prototypical postwar suburb -- there was a direct policy that barred "members of other than the Caucasian race" from living there. When I was researching my senior thesis on the school integration battles fought in Milwaukee in the 1960s, I recall coming across a similar policy for some of the North Shore suburbs (if I can find it, I'll post it here).
The basis for programs like Chapter 220 was established in this reality of de facto segregation. Put differently, the difficulty with completely removing considerations of race from public policy is that considerations of race are made every day through interpersonal relations and personal decisions. The Supreme Court can't change that, nor does (or should) it attempt to change it; but by restricting public policy from including a classification of race for any purpose, it can exacerbate its negative effects.
Perhaps basing programs like Chapter 220 solely on race is no longer necessary today since the explicitly racial barriers to neighborhood integration have since been removed in the suburbs, thereby eliminating the direct creation of de facto school segregation.
This doesn't mean, however, that these programs are inherently discriminatory and, as a result, unconstitutional. Indeed, most observers would be hard-pressed to explain how a program like Chapter 220 -- which explicitly categorizes students by race -- has increased or even worked to sustain racial discrimination in the Milwaukee metro area.
But if the greatest barrier -- not necessarily the only barrier -- to school integration today is economic, perhaps the state should consider either adding an economic component to the Chapter 220 criteria or making the criteria exclusively economic. Either would be preferable to elimination, and the latter would bring Chapter 220 in line with the criteria for the school voucher program that's beloved by Republicans, which is typically the party that crows the most about Chapter 220.
I'm not sure what an economic component would do to the nearly 400 white suburban students who head into MPS each year under Chapter 220. And some serious consideration would need to be given to ensuring that an economic component wouldn't unreasonably stop any of the roughly 3,000 families of color who now participate in Chapter 220 from sending their children to a suburban school through the program simply because they earn above an arbitrary income limit.
But, in the end, while the SCOTUS decision yesterday may have been based on shaky grounds, even if it results in a challenge to Chapter 220, that doesn't need to mean the end of what's ultimately an effective program.