The U.S. Supreme Court is expected to rule any day now to officially reverse, or effectively undermine, the constitutionality of affirmative action to achieve racial diversity in colleges and universities. Pennsylvanians have an especially useful lens for understanding and addressing the underlying issue: The state’s own recent landmark case finding that the Commonwealth’s public school funding system has long denied poor students the right to an equal education under the state constitution.
Why? Because that kind of stark inequality of educational opportunity remains widespread nationally, and the sad reality is that the economic disparity between rich and poor schools maps with the ongoing, and even worsening, racial segregation in our nation’s public schools.
There are a string of Supreme Court cases going back to the 1978 Regents of the University of California v. Bakke decision that upheld affirmative action programs for the purpose of ensuring a diverse educational experience. The most essential is Grutter v. Bollinger involving the University of Michigan, which was later affirmed in two more recent rulings that largely rejected challenges to affirmative action at the University of Texas.
The sad reality is that the economic disparity between rich and poor schools maps with the ongoing, and even worsening, racial segregation in our nation’s public schools.
Having once worked with Pennsylvania’s late U.S. Senator Harris Wofford, a pioneer in the civil rights movement as an early adviser to Dr. Martin Luther King, Jr., for most of the past two decades since the 2003 Grutter v. Bollinger case, I’ve had a different front row seat to this unfolding legal and political drama which remains rooted in the nation’s history of slavery, Jim Crow segregation and both de facto and de jure racial discrimination.
The “Bollinger” named in the suit is former University of Michigan President Lee C. Bollinger who, by the time of the eponymous ruling, had become President of Columbia University. I worked with Bollinger during much of his tenure at Columbia, in his public advocacy of the critical value of affirmative action to an increasingly diverse American society — as well as the danger of our slide backwards from the once bright promise of Brown v. Board of Education’s landmark rejection of “separate but equal” in public education, along with all the civil rights progress that followed.
Make no mistake about it, backwards we have slid since the 1970s and 1980s, when desegregation of the nation’s schools and affirmative action in higher education and the workplace achieved meaningful racial diversity and opportunity, especially for Black Americans long denied equal access to such opportunity. It was in the Bollinger case that Justice Sandra Day O’Connor included an unusual footnote in her opinion that she imagined the need for affirmative action should disappear in 25 years. But at the time of her hopeful sunset idea she may not have realized that the nation’s public schools had already begun a tragic process of resegregation across much of the country.
Largely Black and Brown districts with the greatest educational needs (like Philadelphia) spend 33 percent less per student than wealthy districts
As Bollinger and his colleague, Chicago Law Professor Geoffrey Stone (no relation) point out in their recent book, A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action, this has been true not only in the South where so many White families established private academies in decades after Brown to avoid integrated public schools, but also across the rest of the country, where segregated housing patterns driven by a history of discrimination. Redlining by banks in home mortgage lending and even government programs from the New Deal to the G.I. Bill, were designed or administered in ways that sharply limited the wealth-building federal benefits available to Black and Brown families.
Even after Brown ended legal segregation in public schools, the sharp inequality of wealth between neighboring schools reliant on local property taxes remained. In 1973, the U.S. Supreme Court ruled by a 5-4 decision in San Antonio Independent School District v. Rodriguez that since there is no fundamental right to education in the Constitution, a school funding system that provided vastly different levels of funding to rich and poor schools did not systematically discriminate against poor people in Texas. Noting the similarities between Texas’ school funding system and those in other states, Justice Powell, who later wrote the Bakke decision, ruled that the Constitution’s “Equal Protection Clause does not require absolute equality or precisely equal advantages” in public education.
So the states were left on their own, with predictably unequal results, especially in Pennsylvania. At times over the past decade, our state had the nation’s largest spending gap between rich and poor school districts in the nation. Largely Black and Brown districts with the greatest educational needs (like Philadelphia) spend 33 percent less per student than wealthy districts, according to data from the National Center for Education Statistics.
It’s merely a recognition of the all too present reality of deep educational inequality that’s the enduring legacy of that racist history.
As a 2019 report on the 65th anniversary of Brown by the UCLA Civil Rights Project and the Penn State Center for Education and Civil Rights put it, “Research shows that segregation has strong, negative relationships with the achievement, college success, long-term employment and income of students of color.” The report also showed double segregation by both race and poverty for Black and Latino students and largely middle-class schools for Whites and Asians.
In 2020, the educational Hechinger Report also highlighted how even schools within the same school districts receive vastly different levels of funding based on the wealth of their local neighborhoods, themselves divided by both race and class — something we see in Philadelphia, as well
It’s no wonder that “Students who reside in school districts with low property values and incomes are deprived of the same opportunities and resources as students who reside in school districts with high property values and incomes,” as Judge Jubelirer wrote last year in her decision in the education funding lawsuit in Pennsylvania. For example, according to the Inquirer, Lower Merion has more than $31,000 to spend per student while Delaware County’s William Penn has $18,000 per student. “As a result of these disparities,” Jubelirer found,” petitioners and students attending low-wealth districts are being deprived of equal protection of law.”
This is not a debate about history
Too often the legal and political debate over affirmative action wrongly turns on whether it is an act of “reparations” for past discrimination. In fact, it’s merely a recognition of the all too present reality of deep educational inequality that’s the enduring legacy of that racist history.
Unfortunately, experience across higher education has repeatedly shown that substituting affirmative action based only on class rather than race doesn’t result in a significantly more racially diverse student body. Black Americans remain a minority, while a majority of poor school districts nationally are largely White. Now conservative activists are even targeting admission programs that attempt to use such “race neutral” approaches to increasing enrollment to reflect the diversity of their local community. As The New York Times recently reported, only a narrowly divided federal Appeals Court “allowed an elite public high school in Alexandria, Virginia, to revise its admissions policy by, among other things, eliminating standardized tests and setting aside spots for the top students at every public middle school in the area.”
Like the University of Texas’ approach of admitting the top 10 percent of students from every public high school in the state, such systems can help increase racial diversity only because a state’s public high schools are so segregated, as are so many local primary and middle schools like Alexandria’s. But given the view of the dissenting federal judge that courts should “look past the policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result,” it’s likely the U.S. Supreme Court will soon hear a challenge to even such race-neutral diversity efforts.
What then for those who believe it’s essential for an increasingly diverse nation to welcome and reflect that diversity not only in education, but also in our economic and civic life?
One thing we know is that Chief Justice John Roberts’ glib suggestion in a 2007 ruling that struck down a Seattle school desegregation plan that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” doesn’t work. But for those who, like Justice O’Connor, hope to end the need for considering race in college admissions, the only future path is to stop having a separate and profoundly unequal school system and instead fulfill Pennsylvania’s landmark mandate to invest in public schools that truly serve all children as an engine of equal opportunity and academic quality regardless of their race or zip code.
A former communications director for U.S. Sen. Harris Wofford and Pennsylvania Gov. Bob Casey, David Stone is a Senior Adviser to the President at Columbia University, and has served as a consultant to several colleges and universities in the Philadelphia region. His views are his own.
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