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The theft of education.

Some years ago in Chicago, I saw a local television report about a particularly poignant phenomenon labeled "theft of education." It bristled with middle-class anxiety that poor blacks were escaping from the inner city and invading schools where they did not belong. Domestic servants had apparently been using their employers' addresses to enroll their children in schools in suburbs like Winnetka. They were lying! was the gist of this report. They were stealing tax dollars! They were raiding the Chicken Coop of Knowledge! It was sad, the images of those children at the train station, their books scattered, their way blocked as guards demanding proof of residence pressed them back onto the trains.

Not long after that, I remember seeing news about a scandal in Rockford, Illinois, a mostly white working-class town just west of Chicago, where in recent times, black and Hispanic families have moved in search of better lives. The school board was accused of intentional systemic racial segregation. A lawsuit was filed, People Who Care v. Rockford Board of Education, and in 1993 a magistrate found that black students were assigned to separate, unequally equipped facilities; that regardless of test scores and grades, white students (some "below the national mean") had been tracked into separate "gifted" and honors programs and blacks (some "who scored in the ninety-ninth percentile") tracked into "remedial" and basic programs. Even ostensibly "integrated" schools maintained segregated classrooms, entrances, bathrooms and lunchtimes. The magistrate ordered a variety of remedies, including that schools be integrated; that gifted classes admit black students whose test scores qualify them; and that the racial composition of regular classes reflect that of the school at large.

The school board appealed and on this past April 15, the Seventh Circuit Court of Appeals reversed key parts of the magistrate's remedial order. The opinion, written by Judge Richard Posner, says a number of remarkable things: As for the order to desegregate, he writes that "making it more difficult to identify particular schools as `white'or `black' (or Hispanic)" is of but "conjectural benefit" to minority students. He throws out a study purporting to show that regardless of socioeconomic status, white students outperformed black students, ostensibly as a consequence of the board's discriminatory educational policies. Saying that the study failed to consider other salient variables -- "the well-documented scholastic achievements of the children of poor immigrants would have to be ascribed to discrimination in favor of immigrants," he writes with no apparent irony-posner goes on to rule that it has "no value as causal explanation and is therefore inadmissible." Indeed, he says that the study is "implausible."

His insistence on such objectivity breaks down completely, however, when he comes to that part of the decree forbidding the school district to "refer a higher percentage of minority students than of white students for discipline unless the district purges all `subjective' criteria from its disciplinary code." Posner declares that disciplinary criteria "are unavoidably judgmental" and that such constraints on subjectivity are "racial disciplinary quotas," teaching an unedifying lesson of racial entitlements."

As for the heart of the lawsuit, the racial tracking system, Posner puts it this way: "The decree also perversely limits minority enrollment in compensatory education (that is, remedial) programs to the percentage of minority students in the school as a whole. These programs are designed largely although not entirely for minority students, because they have on average more educational deficits. To forbid these students access to these programs on the ground that it would foster unfavorable stereotypes is the kind of `benign discrimination' thinking (illustrated by Bradwell v. Illinois ... ) that the courts have long rejected."

Talk about perverse: Bradwell v. Illinois is an 1873 case denying a woman admission to the Illinois bar on the grounds that the "civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman," and that it was not among Myra Bradwell's "fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications."

The upshot of all this is that Posner permits the board to engage in tracking that results in segregation and simultaneously disallows remediation for the victims of such policies -- when striking down that part of the decree mandating re-evaluation of black students shunted into rigidly inescapable (i.e., twelve-year) remedial tracks. Saying that "[f]orty-eight years after it had first been initiated," Brown v. Board of Eeducation was still "generating 100-page judicial opinions"' he complains that affirmative decrees are a formula for protraction." He counsels against "ambitious schemes of social engineering" and warns that "children, the most innocent of the innocent occasionally brushed by draconian decrees, should not be made subjects of utopian projects."

This last would be more touching if it weren't from a judge whose most controversial scholarship to date urges a "free" adoption market in which baby prices are aligned with pricing systems for "soybean futures" and in which "a racial ranking of these prices would be evident, with white baby prices higher than nonwhite baby prices.'" Draconian? Not according to the dystopian Judge Posner. "By obtaining exclusive control over the supply of both `first-quality' adoptive children and second-quality children residing in foster care but available for adoption, agencies are able to internalize the substitution possibilities between them."

One of the innocent children touched by the Rockford school board's policies was Clifford Williams, an A student who was nevertheless put in a mostly black program for those with "behavioral disorders." Luckily, his mother refused to accept that assessment and insisted that he be tested for the gifted program. Williams scored in the ninetieth percentile and became one of only two black children in the gifted class. He is a pre-med student these days. Observes his mother, "I wonder how many people just gave up."
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Title Annotation:racial discrimination lawsuit
Author:Williams, Patricia J.
Publication:The Nation
Article Type:Column
Date:May 19, 1997
Previous Article:The case of Richard Johnson.
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