Friday, June 29, 2007

SCOTUS Decision Shouldn't End Chapter 220

The US Supreme Court struck down school integration plans in Louisville and Seattle yesterday since they used race as a deciding factor in "some assignments," the JS reports today.

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.

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9 Comments:

Blogger Dad29 said...

There's a working version of the 'economics' program in North Carolina.

See: http://betsyspage.blogspot.com/2007/06/avoiding-race-in-school-assignment.html

June 29, 2007  
Blogger Seth Zlotocha said...

Thanks for the link. There's also a working version of it right here, in a sense, with the voucher program.

But before making any move -- whether to a combination of economics and race, or to economics exclusively -- a determination will need to be made about, first, whether a legal challenge will be made to Chapter 220; second, the criteria that would satisfy that challenge, if successful (it sounds like Kennedy is more likely to back a program if it includes an economic piece in addition to the racial piece); and, third, how the demographic situation that's specific to Milwaukee impacts a decision to move to either a economics/race combo or an exclusively economic set-up, if necessary (in other words, who would be the winners and who would be the losers).

June 29, 2007  
Anonymous Anonymous said...

Take a look at this good analysis by a Virginia law professor, who notees that the decision means "school districts can use race-conscious measures to achieve integrated schools." That's what Justice Kennedy found - and that's important.

http://www.acsblog.org/equal-protection-and-due-process-guest-blogger-seattle-schools-and-bakke.html

June 29, 2007  
Blogger Seth Zlotocha said...

Thanks for the link, Anon. It's true that Kennedy is the controlling opinion in the case and that he doesn't shut out all categorizations of race, as Roberts, Scalia, Thomas, and Alito seemed to hold.

But it appears Kennedy's prescription for using race is as one factor among others, such as economics. The thing with Chapter 220 is that it categorizes students exclusively by race, which appears -- at least on the surface -- to be outside of the bounds of what Kennedy argues.

But, as I mentioned above, it's a bit premature to assume that something needs to be done with Chapter 220 to make it fit within the parameters of this ruling; however, it isn't too early to start thinking about it as a possibility.

Beyond that, even setting aside the legal dictates that may result from what SCOTUS determines the constitution to demand for programs such as Chapter 220, it might not be a bad idea from a public policy perspective to re-examine (not necessarily change) the criteria of the program, anyway, in light of changing demographics, economics, etc., in the Milwaukee area.

June 29, 2007  
Anonymous Anonymous said...

The economic question isn't about the families, in reality, but about the districts. Districts rely on Chapter 220 to keep their property levies down, as the state aid they get is substantial and has to be used for property tax relief. They've thrown up a big fight every other time the program has been in jeopardy because their taxpayers will get a big shock if that aid goes away. My prediction would be that Chapter 220 as it is ceases to exist, the open enrollment program is tweaked to provide transportation in the former Chapter 220 districts, state aid pays for the transportation costs, and there's some kind of per pupil bonus aid for the districts for a few years to wean them off the Chapter 220 bonanza. Because of the existance of the open enrollment program, I don't see Wisconsin willing to create a new program based on socio-economic factors.

Anon2

July 02, 2007  
Blogger Seth Zlotocha said...

You're right the districts do well financially under Chapter 220, and they do object -- usually in terms of diversity, not finances -- every time the program comes under question. This time is no different; I recall a quote in the JS article from a Mequon administrator objecting to the possible threat that the SCOTUS decision has to the future of Chapter 220.

But that's an additional economic question. There's still a legitimate and important question about adding an economic component to the Chapter 220 criteria, which would appear -- based upon Kennedy's position -- to bring the program in line with this decision. Your suggestion about open enrollment is interesting; but my guess is that it would also virtually eliminate the integration that takes place under Chapter 220, at least as soon as the pupil bonus ran out, and that would be bad for the receiving districts and the families who could benefit from a Chapter 220-type program.

July 02, 2007  
Anonymous Anonymous said...

The school districts absolutely object in financial terms...many are also committed to diversity, but if Tosa lost Chapter 220, for instance, it would have to close Wilson school. The administration was very frank two years agao that Chapter 220 and open enrollment allowed them to keep that school open.

If transportation were paid for I would think open enrollment would result in diversity in the suburbs similarly to Chapter 220, if not more in some cases. Some school districts, Shorewood in particular, keep their Chapter 220 numbers just below the statutory threshold. Brown Deer can no longer accept new Chapter 220 students b/c their overall minority population is above the threshold. Shorewood can't give up the 220 money and so actually limits diversity artifically. Open enrollment would get rid of that perverse incentive.

If school districts were smart, they would start now to figure out how they will survive without Chapter 220. I just don't see this legislature trying to replace it with anything similarly focused...in fact, I would expect them to take the opportunity to expand the choice program.

Anon2
BTW...my child attends MPS via Chapter 220, so my comments are pragmatic and not a reflection of the value I think the program has for the students.

July 03, 2007  
Blogger Seth Zlotocha said...

I think you misunderstood my comment about in what terms districts object to threats to Chapter 220. I agree the fundamental reason for their objections are financial; what I'm saying is that the language they use to express their objections are couched in terms of protecting diverity rather than their financial interests.

My understanding is that open enrollment pays less than Chapter 220. Once you take away that financial incentive, districts -- and those paying property taxes in those districts -- are going to be less likely to admit as many non-district students. To be sure, low income open enrollment students can get a DPI transportation waiver now, but that hasn't increased the willingness of districts like WFB, Shorewood, etc., to accept an increasing number of open enrollment students. The preference is for Chapter 220 because it pays more; once that goes away, so will the number of non-district students. Maybe not all, but my guess is that the numbers would drop, particularly the number of non-white students since suburban districts would be forced to consider open enrollment applications equally from students of every racial background. If it gets out that a district like WFB is offering X amount of open enrollment seats, they're going to get a lot more applicants than just those from the predominantly non-white portion of the inner-city that is now the sole population for Chapter 220.

July 03, 2007  
Anonymous Anonymous said...

Seth, you have a good point...which is why I think some kind of temporary "bonus" funding would be necessary for the former 220 districts. Perhaps the open enrollment amount is weighted if the transfer student is low-income? The legislature might go for that...but, as you point out, would the districts? I think districts prefer 220 students to open enrollment students right now not only b/c 220 pays more per pupil, but b/c open enrollment is based on statewide average costs. If your costs are higher than average then open enrollment isn't attractive at all. 220 pays the "actual costs." (Obviously since each district determines how many OP or 220 students they'll take, they tend not to take so many that their real costs will increase, which means even the OE amount is a gain.) So maybe the OE funding formula will be changed. I don't see the out-state legislators going for any more money for SE Wisconsin unless something is in it for them too.

Anon2

July 05, 2007  

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