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Affirmative Action

Source: Grey Villet/Time Life/Getty

African-American students being bused to another high school, due to integration

life, liberty + the pursuit of the same

Do We Have a Fundamental Right to Education?

Why you should care

Because when the cause of a problem is messy and complicated, the solution has to untangle the spaghetti of it all.

This OZY encore pick was originally published on May 1, 2014. This version has been slightly edited to mention the 50th anniversary of Brown v. Board of Education.

Not long ago, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court voted 6-2 to uphold Michigan voters’ determination to ban “preferential treatment” in public education, government contracting and public employment. It was the shot heard ’round the country — straight to the heart of affirmative action.

But education as a racial battleground is nothing new. And on today, the 50th anniversary of Brown v. Board of Education, it’s worth remembering this all over again. In the 1970s, communities were in anguish, sometimes in flames, over busing. And as children traveled miles and miles from home to get a primary or secondary education, parents, school boards and the courts were embroiled in litigation.

We have allowed our attention to wander from where the real trick is taking place: in our struggling and unequal public school systems.

Yet now as then, we find ourselves obsessing over the remedy without sufficiently considering the real problem. Neither busing nor affirmative action can compensate for the reality and the consequences of separate and unequal schools in America. Which means it’s time to dig into the question: What are the myriad complicated factors tying into education as a “fundamental right”?

The Real Problem

As if mesmerized by a conjuror, we have allowed our attention to wander from where the real trick is taking place: in our struggling and unequal public school systems. Instead of keeping our eyes on the magician’s hands, we have become distracted by the smoke and mirrors of “merit” and “reverse discrimination.” (As Justice Antonin Scalia wrote in a 1979 brief, affirmative action ‘is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need’ and is thus ‘racist.’”)

A quarter of high schools with the highest percentage of black and Latino students do not offer any Algebra II courses, according to a recent report by the U.S. Department of Education.

Scalia — and last week’s court decision — is wrong. Critics of affirmative action rest their arguments too heavily on merit: They note the disparity between the test scores of aggrieved whites, who were denied admission to some of the most prestigious universities in the United States, and blacks and Latinos, who were accepted.

Yet how can we equate “merit” with test scores when we know how lacking minority school districts are in the courses necessary to do well on standardized exams? A recent report by the U.S. Department of Education noted, “A quarter of high schools with the highest percentage of black and Latino students do not offer any Algebra II courses.” And still more: “While 81 percent of Asian-American students and 71 percent of white students had access to a full range of math and science courses … only 57 percent of black students had access to a full range of courses. Less than half of Native American students had full access.”

The Fundamental Right

Merit cannot be measured simply by how well you perform on tests. We need to ask what contributes to a student’s showing of merit? Schools, in large part, which are grossly unequal because of marked discrepancies in property taxes, which provide the lion’s share of funding for our public school system. Which all goes to show that cause-and-effect, when it comes to education and affirmative action, is a squishy and confusing concept.

And the courts have grappled with — and acted on — the complex causes of educational inequality before. In the 1990s, Ohio’s Supreme Court ruled that the state’s reliance on property taxes to finance K-12 had created major disparities, violating the “fundamental right” to an education.

History tells us that from property taxes to busing, progress requires more than a few early interventions.

The issue, of course, is that property values in predominately African-American neighborhoods are often lower than those in white areas and, consequently, generate fewer dollars to support the schools. Those lowered property values, unfortunately, have been the result of a range of pernicious but supposedly race-neutral public policies. One of the most devastating was the decision concerning where to place undesirable goods and services. In Houston, for example, zoning laws put one toxic waste dump after the next in African-American communities.

How It Adds Up

What we are seeing today is a cumulative effect, built over years of slavery, Jim Crow laws and discriminatory public policy — which together create massive disparities in economic resources and, hence, our schools. In the aftermath of the 1954 Brown decision, it took a series of four Supreme Court decisions (1964, 1968, 1969 and 1971) to finally break the back and subterfuge of Southern resistance to the decision to integrate schools. When busing finally came, though, 17 years of legal wrangling and racial chicanery dressed up in the neutral language of “pupil placement” had left black children and their educational needs out in the cold.

Which means that today, we are left trying to roll back a centuries-old legacy. History tells us that from property taxes to busing, progress requires more than a few early interventions. It takes repeated action from the legislature and courts to address the profound inequality in our public school systems. And if the discussion continues over “merit” in today’s terms, the rancor over affirmative action will remain a tale full of sound and fury signifying nothing.

Carol Anderson is associate professor of African-American Studies and History at Emory University and a Public Voices Fellow with the Op-Ed Project. She is the author of Eyes Off the Prize: The United Nations and the African-American Struggle for Human Rights (Cambridge, 2003).

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