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Joshua Dunn

On Monday, Secretary of Education Arne Duncan announced that his department will expand its efforts in civil rights enforcement. Its civil rights division will monitor racial disparities in enrollment in college prep classes, school discipline, and teacher assignment. Like everything this sounds fantastic in the abstract. After all, who publicly declares that they oppose protecting civil rights?

The details, though, paint a more troublesome picture. First, the shamelessness is astonishing. This is the same Department of Education that can’t support a voucher program in Washington D.C. to help minority children escape the grinding incompetence of the D.C. school system. Now it wants to spend its resources determining whether schools in Fairfax County or Westchester have a disproportionate number of white kids in college prep classes. Someone’s priorities seem misplaced. Even Nixon would blush.

Second, it’s hard to see how Duncan can do much of this without running headlong into the Supreme Court’s 2007 decision in Parents Involved v. Seattle School District No. 1. In that case, the Court decreed that using race as a “tiebreaking” factor in school admissions policies is unconstitutional. Duncan plans on relying on “disparate impact” analysis to show, for instance, that school districts with a disproportionate number of white students in Advanced Placement classes are guilty of discrimination even if there is no evidence of intent to discriminate. The cure for that disparate impact will be “robust remedies” like early intervention programs and oversight of feeder patterns. The upshot is that school districts will be “incentivized” to make school and class assignment decisions based on race in order to achieve a proper balance in college prep classes. But if (white) parents discover that their children have been denied access to an AP class to ensure racial balancing, they will likely bring suit just like the parents from Seattle in Parents Involved. And chances are they will win. After all, Justice Kennedy, in his controlling opinion, singled out identifying students based solely on race as unconstitutional.

Third, anyone familiar with the Department of Health, Education, and Welfare’s (HEW) enforcement of Title VI of the Civil Rights Act in the 1970s knows that we’ve been down this road before and it’s no smooth ride. In the notorious Adams v. Richardson litigation, HEW became compelled to pursue, in much the same fashion as Duncan has outlined, enrollment disparities in school districts across the country. As political scientist Stephen Halpern documents in On the Limits of the Law, there are “perverse and insidiously negative” consequences to pursuing these goals through the courts. And as another scholar, Jeremy Rabkin, noted in Judicial Compulsions, the interests of the students quickly got lost in a “fog of legalisms,” replaced instead by the interests of advocacy groups allegedly acting on their behalf. In the case of Duncan’s announcement, the goal displacement rituals, where educational concerns are trumped by the need to satisfy the DOE, are practically limitless. At the very least, one can easily envision school districts putting unprepared students in AP classes simply to satisfy the Department of Education.

Fourth, when experts and elites from afar try to determine what minority parents and children want and need, they often have no idea what they are talking about. As we learned in Missouri v. Jenkins (which I discuss at length in Complex Justice), when the court and its self-appointed experts tried to improve the quality of education for African-American children in Kansas City by structuring reforms around what they thought middle-class white children would want, educational outcomes declined and African-American parents became outraged and actually led the effort to end the court’s attempt to help them. And that’s after the court made Missouri spend more than $2 billion to do it. Focusing on college prep classes when many minority children are trapped in dysfunctional and failing urban school systems will likely be met with a giant “huh?” from many parents.

Legal history and common sense have spoken: Beyond the protection of individuals from obvious and invidious discrimination, trying to closely monitor and enforce civil rights from 400 Maryland Avenue brings a host of unintended consequences, not to mention that the move might be downright unconstitutional. And though the effort’s intentions are unimpeachable, the hubristic Washington-based top-down approach will likely do more harm than good.

A version of this piece first appeared on our blog Flypaper. Subscribe to our RSS feed here.

By Joshua Dunn

Dunn is co-editor of Fordham’s From Schoolhouse to Courthouse volume, co-author of Education Next’s “legal beat” column, and associate professor of political science at the University of Colorado-Colorado Springs.

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