Brown v. Board of Education, 65 Years Later

 

The Monroe School historic site of Brown v. Board of Education, which is considered the start of the Civil rights movement in the United States.
The House Committee on Education and Labor held a hearing on April 30 to address the state of education in the United States sixty-five years after Brown v. Board of Education (1954) put an official end to legal segregation throughout the United States. When Brown came down, there was much uneasiness over whether that powerful assertion of judicial power could be justified by an appeal to what Professor Herbert Wechsler famously called the “neutral principles of constitutional law.”

Those doubts have largely vanished, but litigation in Brown was only the opening chapter of a protracted struggle that, as political science professor Gerald Rosenberg showed in his historical study of Brown, The Hollow Hope, ultimately required Congress and the Executive to overcome massive resistance from many southern states. By now, the original mission of Brown—formal desegregation—has been unquestionably achieved. There is also widespread agreement that while much progress has been made, much more work has to be done to increase educational opportunities for all students. But this consensus on ends has not been matched by a consensus on means, as was evident in the prepared testimony before the House Committee.

Many of the Democrat speakers at the hearing argued that public education is still too segregated—if not by law then in fact—and they called for a more vigorous enforcement of legal efforts to advance integration. Representative Bobby Scott (D–VA) set the stage with this blunt observation: “The federal government contributed to racial segregation and inequality, so the federal government must be part of the solution.” But what solution? In his written statement, Professor John C. Brittain of the David A. Clarke School of Law in the University of the District of Columbia, endorsed a proposal of Representative Marcia Fudge (D–OH) that “would provide $120 million in new competitive grants to districts to support voluntary local efforts to reduce school segregation.” Dr. Linda Carling-Hammond, President and CEO of the Learning Policy Institute in Palo Alto, California, argued that it was important to encourage more diversity in charter schools, which are often more segregated than public schools in the same communities. Mr. Daniel Losen, the director of a civil rights project at UCLA, took the view that what was needed was to restore “what was once a private right of action regarding use of the disparate impact regulations under Title VI of the Civil Rights Act of 1964….” Finally, Richard A. Carranza, Chancellor, New York City Department of Education, insisted that increased diversity in public schools offered the only way to “advance equity now.” Idealists, all.

There were, however, two dissenting testimonies of a more autobiographical nature that took a very different approach. Loisa Maritza White, a parent advocate, and a defender of school choice and charter schools, stressed the risk of bullying in public schools, a theme that was echoed by Dion Pierre, a research associate at the National Association of Scholars.

On the momentous choice between lofty aspirations and nitty-gritty concerns with discipline and security, I stand four-square for the latter. integration is not an end in itself; academic excellence and discipline are. Schools need a strong educational management structure that ties maintenance of school discipline and security with academic performance, no matter who sits beside whom. These goals do not require higher expenditures on education. They require that available funds be put to better use. Exhibit A for this proposition is the high performance of the Success Academy charter school system, whose enrollments are 56 percent black and 29 percent Hispanic. Overall the students have a pass rate of 98 percent on state math tests and 91 percent pass rate on English Language Arts. The racial gap is largely closed, even though only 7 percent of their students are white, three percent are Asian, and 5 percent are multi-racial.

How are results like these achieved? The first item to address is an issue that the House hearing ignored: take dead aim at public school unions whose monopoly power diverts resources from both discipline and excellence. Every legislature and public-school board has a duty to act as a faithful trustee to its students. They are not empowered to provide rigid work rules and job protection for teachers, regardless of their competence and performance. The educational system cannot operate well if it is virtually impossible to reassign or sanction poor teachers or to reward good ones. Charter schools are typically nonunion and thus they are able to provide better education at lower cost, which explains why public-school unions take whatever political steps they can to block their formation in order to keep a captive student body. Minority parents as a group are the strongest backers of charter schools, because they know that a safe and disciplined environment makes for educational advancement. They care more about education than about that most-fashionable of buzzwords: inclusion.

The second great danger to educational advancement is the aggressive application of disparate impact tests to prevent the reemergence of invidious segregation. After Brown, there was a well-justified fear that those school districts committed to racial segregation would disguise their illicit preferences by using fake proxies to continue to subordinate minority students. The Civil Rights Act of 1964 allowed the use of statistical information to ferret out those rearguard actions. That strategy is far from risk-free for statistical tests often yield false positives. And now we don’t have to run that risk. The official posture in the United States has everywhere shifted radically from 1954 when Brown was decided, from 1964 when the Civil Rights Act was passed, and even from 1971 when Griggs v. Duke Power adopted a disparate impact test in employment settings. Today virtually every single state and local government is strongly committed to a bona fide diversity or affirmative action program. There are surely individual acts of illegal discrimination, but there is virtually no concealed institutional racial discrimination for government officials and courts to uncover.

At this point, the disparate impact standard has undermined essential disciplinary norms needed to secure quality education. In January 2014, the Obama administration issued a guidance holding that any differential in the rate of punishment between black and white students could amount to a form of racial discrimination. The guidance explained: “Even though incidents of school violence have decreased overall, too many schools are still struggling to create positive, safe environments. Schools can improve safety by making sure that climates are welcoming and that responses to misbehavior are fair, non-discriminatory and effective.” In fact, the massive overkill of the 2014 guidance undermined the educational objectives of Brown by making schools more dangerous environments.

The Obama guidance endangered innocent students and teachers by adopting the wrong definition of disparate impact. The Obama policy only compared discipline rates by the number of black and white students. It made no effort to correct for the rate of disciplinary infractions by race. Yet the evidence on this point suggests that minority students commit on average more rule infractions than white students. The correct test for disparate impact sets punishment proportionate to the number of infractions, as measured by race. Each school district presents its own empirical issues.

For example, assume that 10 percent of the student population in a school district is black, and those students commit 20 percent of the violations, while the 90 percent of the students who are white commit the other 60 percent. That means that black students are three times more likely to commit an offense. The correct numerical analysis therefore yields, with due allowance for statistical error, a clear operational test. If the ratio of punishments for black students is less than one-third of that for white students, the disparate impact test reveals discrimination in their favor. If it is more than a three-fold difference, then the discrimination runs the other way.

The 2014 Obama ruling badly erred when it keyed the disparate impact test not to the relative frequency of offenses, but to the number of students of each race, regardless of the offensives committed. On the numbers given, the Obama guidance finds a system to be fair only if there are nine punishments administered to white students for each one imposed on black students. On this view, white students should be punished nine times as often as black students, when in fact the correct ratio is 3 to 1 the other way, leading to a 27-fold overenforcement rate against white students. It is of course highly improper to falsely convict white students of offenses that they did not commit. The Obama administration policy, therefore, resulted in lax enforcement of disciplinary norms against offending black students. The upshot has been increased physical violence in the classroom, against students and teachers—violence that makes it impossible for any student, black or white, to learn. Accordingly, Trump’s Secretary of Education Betsy DeVos was correct to rescind the Obama guidance in December 2018.

In light of these observations, much of the House testimony should be faulted because of its inattention to matters of means. Integration as an abstract ideal yields few benefits. Only by concentrating on discipline as a precursor to academic excellence will it be possible to benefit school children of all races.

© 2019 by the Board of Trustees of Leland Stanford Junior University

Published in Education, Law
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There are 6 comments.

  1. Coolidge

    Richard Epstein: The Obama guidance endangered innocent students and teachers by adopting the wrong definition of disparate impact. The Obama policy only compared discipline rates by the number of black and white students. It made no effort to correct for the rate of disciplinary infractions by race. Yet the evidence on this point suggests that minority students commit on average more rule infractions than white students. The correct test for disparate impact sets punishment proportionate to the number of infractions, as measured by race. Each school district presents its own empirical issues.

    Dandy post. Imagine if the test was disparate impact on the rate of victims across the races. This would be a flip to focus on the victims instead of the offenders. The goal should be equal safety, not equal punishment. 

    Obama’s policies also got us the Broward County situation, where the improving the discipline metrics lead to ignoring red flag behavior and the deadly Parkwood school shooting.

    • #1
    • May 6, 2019, at 5:56 PM PDT
    • 1 like
  2. Thatcher

    It might also be instructive to point out that the common way to refer to the case “Brown vs Board of Education” leaves out which board of education. Nope, not some city in the Deep South like Birmingham, Al, but Topeka, Kansas.

    • #2
    • May 6, 2019, at 5:56 PM PDT
    • 1 like
  3. Member

    Richard Epstein: For example, assume that 10 percent of the student population in a school district is black, and those students commit 20 percent of the violations, while the 90 percent of the students who are white commit the other 60 percent. That means that black students are three times more likely to commit an offense. The correct numerical analysis therefore yields, with due allowance for statistical error, a clear operational test. If the ratio of punishments for black students is less than one-third of that for white students, the disparate impact test reveals discrimination in their favor. If it is more than a three-fold difference, then the discrimination runs the other way.

    I think that the math in this is incorrect. In this hypothetical, blacks commit 20% of violations and whites commit 60% of violations, a total of 80%, failing to account for 20% of violations (and there are no other students in this hypothetical to account for this error). Also, the rate calculations are wrong — in this hypothetical, the black-white violation ratio is 2.25:1, not 3:1.

    Prof. Epstein’s example would be correct if we assumed that 10% of students were black and 90% were white, and further assumed that black students committed 25% of the violations while white students committed the remaining 75%. This would give the black-white violation ratio of 3:1 that Prof. Epstein later discusses.

    Richard Epstein: The 2014 Obama ruling badly erred when it keyed the disparate impact test not to the relative frequency of offenses, but to the number of students of each race, regardless of the offensives committed. On the numbers given, the Obama guidance finds a system to be fair only if there are nine punishments administered to white students for each one imposed on black students. On this view, white students should be punished nine times as often as black students, when in fact the correct ratio is 3 to 1 the other way, leading to a 27-fold overenforcement rate against white students.

    I think that the math in this is also incorrect. In the hypothetical (as corrected above), the correct ratio of punishments is not 3:1 — though the correct ratio of the rate of punishment is 3:1. The correct ratio of punishments is in accordance with the percentages of violation: i.e. 25% of those punished should be black and 75% should be white, because 25% of violations are committed by blacks and 75% by whites. So the correct ratio of punishments is 1:3 (black:white). If enforcement is 1:9 (in accordance with population percentages), then the rate of overenforcement against whites would be 3, not 27. 

    • #3
    • May 7, 2019, at 9:05 AM PDT
    • 1 like
  4. Coolidge

    Now, if this isn’t bad enough for you, imagine if the same, “disparate impact“ reasoning were to be applied to the criminal justice system.

    Blacks commit violent offenses at seven or eight times the rate of whites, as I recall. Thus, the only way to get the racial numbers “right” would be to throw the book at white nonviolent offenders while giving black violent criminals just a slap on the wrist. 

    Actually, prosecutors may already be trying to do this. When I was at Columbia, a world famous law professor was murdered on the street near where I lived at the time. I recently learned that the two black men who killed him served only five years in prison. (The sentence was “15 years to life”, I’m guessing.)

    Meanwhile, Jeffrey Skilling, whom Michael Moore had used as an example of how rich white guys get away with everything, served 12 years of a 24-year sentence for financial crimes related to the Enron scandal. 

    • #4
    • May 7, 2019, at 9:30 AM PDT
    • Like
  5. Coolidge

    More than a decade ago, I remember reading in the San Francisco Chronicle about a group of school kids who were bused from where they lived over to a white neighborhood some hour and 45 minutes away. And at the end of the day, the same commute home again. Kids need to be kids. Growing up on a school bus has to be seen for the harsh remedy that it is, and not as any type of solution.

    Yet government bureaucrats probably are hoping for more of the same. To me this is one of the instances where the solution seems beyond FUBAR.

    • #5
    • May 10, 2019, at 12:38 PM PDT
    • 1 like
  6. Coolidge

    CarolJoy, Above Top Secret (View Comment):

    More than a decade ago, I remember reading in the San Francisco Chronicle about a group of school kids who were bused from where they lived over to a white neighborhood some hour and 45 minutes away. And at the end of the day, the same commute home again. Kids need to be kids. Growing up on a school bus has to be seen for the harsh remedy that it is, and not as any type of solution.

    Yet government bureaucrats probably are hoping for more of the same. To me this is one of the instances where the solution seems beyond FUBAR.

    They were operating under the preposterous hypothesis that it was segregation that made black kids do poorly in school. Thus, all they had to do to remedy the situation was bus the black kids to a white school and the black kids would miraculously become good students.

    In reality, what was at the end of that hour and 45 minute bus ride was something like total demoralization. This was discussed in City Journal a couple of months ago. They quoted a contemporary report about school busing in Westchester County, New York, which wondered exactly what lessons we were teaching the kids. Because after busing, in some classrooms the worst white student was better than the best black student.

    From which the black students learned that trying to do well in school was “acting white“. I prefer not to say what the white students learned.

    • #6
    • May 10, 2019, at 8:59 PM PDT
    • 1 like