Separate is still not equal

Image from ABC 8 News.

Recent educational trends focusing on anti-racism have raised eyebrows and sparked debates, particularly in more progressive areas of the country. In far too many cases, schools are employing policies and practices that overtly treat students differently simply on the basis of their ethnicity or skin color. 

While ostensibly attempting to correct race-based oppression, these initiatives have come under increasing scrutiny for creating racially hostile learning environments. In exploring this issue, we find that the real problem lies not in combating racism but in certain methods used to combat racism. We hope these methods, which have become troublingly widespread in recent years, will soon be forced to reckon with a new judicial review standard that proves their illegality.

Take for example, Evanston, Illinois public schools. Last spring, Evanston Township High School published course descriptions for various classes that expressly segregated students: one class for Black students, one for Latino students, and another for all other students (one precalculus class for black students was further restricted for males only). As the Wall Street Journal recently highlighted, those course descriptions no longer include overt skin color or ethnicity-based restrictions, but merely state, for example “[t]his course will emphasize examples that some individuals in the Black community identify as shared experiences.” Evanston/Skokie School District 65 utilizes the Black Lives Matter Action Week curriculum, which is “interwoven into [the District’s] curriculum including new units in the K-8 social studies curriculum framework.” Throughout the curriculum, there are many instances of instructional materials that assign traits and characteristics to students based solely on their skin color. For example, Evanston teaches 5th graders using a handout titled, “Some Aspects of Whiteness that Perpetuate Racism.” Another 5th grade lesson titled, “Black Women & Unapologetically Black” teaches students: 

In the same way that the systems and the government are controlled by White people and racism being a result of it, so is it with men controlling systems and government and messages about women being dumb, weak, and inferior being a result. Because Black women cannot separate being Black from being a woman or their intersectionality,  they experience something like a double oppression. 

Existing American case law governing racially hostile learning environments most often stems from fact patterns involving students lodging racial slurs against one another at school, amounting to unlawful bullying and harassment. In those cases, the analysis employed by the courts comes from a 1994 Department of Education Notice of Investigative Guidance. The Guidance states that for a school to be liable, it must be established, in looking at the totality of the circumstances, that: 

(1) A racially hostile environment existed; 

(2) the school had actual or constructive notice of the racially hostile environment; and 

(3) the school failed to respond adequately to redress the racially hostile environment. 

This analysis relies on one important, long-standing assumption in Civil Rights law—that differential treatment of students based on race equates with racial hostility, and that it’s always bad, no matter the intention. Since the 1960s, there have been two competing camps. The first camp believes that racial discrimination is immoral across the board, the second believes that racial discrimination is morally permissible (or even morally necessary) when used to rectify past injustices. The first camp has been dominant in our culture and institutions until very recently, but now the second camp is ascendant. But, crucially, the law has not changed.   

Folks in the late 1900’s would likely find it unbelievable to imagine that our society would evolve to a place where racial discrimination would be touted as a virtue. Yet, here we are. Today we find our children experiencing educational environments that are sometimes deliberately and overtly discriminatory, yet commonly described as well-intentioned and helpful. Merely offering students the “voluntary” opportunity to take algebra with only other students who look like them is celebrated as a useful tool in boosting academic achievement for historically marginalized students. But what’s called “voluntary” often is far from that in reality. Students from historically marginalized groups can face peer pressure to join the rest of the kids in their group; to go against this pressure requires a strength of conviction that few teenagers can be expected to possess. These classes are also not voluntary because white students are effectively banned from attending them. Indeed, the Evanston Township High School superintendent was quoted saying "The courses are open to everyone. If push came to shove and you look at the master schedule, and a kid needs calculus that period and nothing else works and that kid is white, of course we'll put them in the affinity class." 

Another assumption behind racially segregated classes is that white kids, because of their skin color, permanently harbor such strong biases that they risk inadvertently harming non-white students simply by being in the same classroom. Advocates of racially segregated classes claim that this practice is so beneficial to non-white students that reasonable people should accept the notion that maybe separate really is equal.

No. No, it is not.  

Teachers and administrators may convince themselves they are doing right by students when they create segregated opportunities for them or emphasize their skin color as paramount to their individuality. They might even find studies or statistics to support their reasons for doing so. But, ultimately, none of that matters. As it stands now, and has for a very long time in our country, separate can never be equal, and schools that create or allow racially hostile environments to persist are breaking the law. 

This is what makes the clashes we’ve seen between parents and teachers on either side of this issue so perplexing. The two sides clearly see things very differently, but in truth the entire conflict between them is based on a fundamental misunderstanding. The Americans who support racially segregated classrooms shouldn’t direct their displeasure at the parents who oppose it, they should instead be focused on appealing to their representatives in Congress to push for an amendment to the Constitution, which would be the only way to make racial segregation—in any form—legal in our country. 

FAIR is driven by the conviction that our elected representatives got it right when they passed the Civil Rights Act of 1964. We hope to defend the legacy of this monumental achievement by helping plaintiffs who have been aggrieved by neo-racist policies.  Our government’s ability to uphold non-discrimination laws has certainly never been perfect, but we believe the law as it stands today is our best shot at a harmonious and unified society, where people of all skin colors and backgrounds are treated equally under the law.