05.06.19

By:  Richard A. Epstein
Source: Hoover

Brown V. Board Of Education, 65 Years Later

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 rateof 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 class room, 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.