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In Brown's Wake: Legacies of America's Educational Landmark
By Martha Minow
(Oxford University Press, 304 pp., $24.95)

Martha Minow was born in 1954, the same year that the Supreme Court issued its historic decision in Brown v. Board of Education, and, she tells us, has been trying to understand the implications of that decision “since I can remember.” She is well-qualified for the task of interpreting the legacy of that momentous decision. She clerked for Thurgood Marshall at the Supreme Court, taught at Harvard Law School (where one of her students was Barack Obama), and was short-listed for the Supreme Court seat that eventually went to Elena Kagan, her predecessor as dean of Harvard Law School.

Being a bit older than Minow, in 1954 I was attending a segregated high school in Houston, where I saw the effects of segregation in every aspect of life. Public buses were segregated. Drinking fountains in public places, even the supermarket, were labeled “white” and “colored.” Public and private accommodations were rigidly segregated by law and custom. When black people approached a house owned by whites, they always knocked at the back door, never at the front door. Racial deference was expected and customary.

Under pressure from the courts and the federal government, the school system eventually desegregated. The city changed, too, in profound ways. Every kind of statutory racial segregation disappeared. Houston elected a black mayor. Over time, the Brown decision transformed almost everything invidious in Houston’s culture by striking down the power of the state to mandate racial barriers. But white families abandoned the public schools, which became predominantly non-white. So the schools once again were segregatednot by law, but owing to residential patterns and the voluntary decisions of individuals.

American society as a whole was also dramatically transformed by Brown. It is almost impossible to imagine the election of a black president in 2008 without that decision, which opened doors on campus, in the workplace, in politics, and in the popular culture. And yet, as in Houston, there is a curious conundrum. The Brown decision was about the public schools, but it seems to have had a large impact upon every aspect of American life except the public schools. Racial isolation in the schools has intensified in the past generation, as the federal courts abandoned metropolitan desegregation orders, stepped away from imposing remedies on school districts, and even rebuked districts that pursued voluntary integration plans. Almost every large urban district is now majority black and Hispanic, while many smaller communities are mainly white.

Fifty-six years after Brown, its chronicler must not only recount the story of how civil rights groups won their day in court, but must also try to disentangle the complicated meaning of the decision for our own time. Minow dutifully describes the way Brown affected debates about religion and gender, and changed the legal status of people with disabilities and students who were English-language learners and anyone who had suffered discrimination or unfairness because of his or her race, ethnic origin, or gender. Its legal foundation has animated even supporters of gay marriage, who appeal to the same fundamental principles of equality before the law that the Brown decision reaffirmed.

This should be an enthralling story, but Minow’s book is not easy reading. Many chapters read like law review articles, with a citation attached to almost every sentence. Minow consulted experts of varying views and recapitulates different sides of every issue as she takes the reader through the reasoning of proponents and opponents. The reader occasionally struggles to find a coherent narrative in the thicket of argumentation about the evolution of cases and issues.

Inevitably, of course, Minow’s discussion of Brown concentrates on what it means for the nation’s public schools. In parsing its meaning for students today, she cites these passages from the decision and in them locates its central ideas:

1. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms.

2. To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community.

And:

3. We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

In 1954, those statements were clear and unambiguous. State-imposed racial segregation had to end. Districts and states where segregation was the law fought mightily to avoid complying, but eventually their resistance was broken by the consistent and vigorous actions of the federal courts, abetted by passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, along with the enforcement activities of the Johnson administration. Since the judicial, legislative, and executive branches acted in concert to correct a historic wrong, the nation’s historic pattern of state-sanctioned racial segregation was at last abolished.

But what did the decision mean for the nation’s public schools? Removing racial barriers did not change much, because most blacks and whites tended to remain in racially separate schools. When the federal courts required Southern districts to abandon racial segregation, Southern officials offered their students freedom of choice, saying that they were willing to “desegregate” but not to “integrate.” Under freedom-of-choice plans, most black and white students continued to attend racially identifiable schools, not only because it was customary but also because of the intimidation of blacks. In response, the courts became more assertive and demanded statistical mixing of the races, not just superficial compliance.

The era in which the three branches collaborated to enforce the Brown decision, to initiate preschool programs, to reduce class sizes, and to invest in children’s nutrition was also an era that narrowed the racial achievement gaps. A recent report from ETS called “The Black-White Achievement Gap: When Progress Stopped” tells us that the achievement gap between the races narrowed from the early 1970s to the late 1980s more than at any other time, ­a likely consequence of assertive governmental action to address the demands of the Brown decision.

Minow’s book does not compete with and cannot replace Richard Kluger’s Simple Justice, which appeared in 1976, a rich and powerful history of the Brown decision. Minow approaches the subject as a legal scholar, displaying a brilliant command of case law. Her goal is not to retell the history, but to show the broad and continuing impact of the decision on many different spheres, particularly in establishing rights for various categories of students.

If the intent of the Brown decision was clear in 1954to abolish state-imposed racial segregationits meaning today is a source of ongoing litigation and controversy. As Minow documents, the decision unquestionably improved the educational opportunities of students with disabilities, who in the past had often been excluded from regular schools or segregated into separate institutions. As a result of a generation of advocacy on their behalf, federal laws and court orders require the mainstreaming and the inclusion of students with disabilities. Yet complexities abound, as schools continue to contend with difficult decisions about how to provide appropriate services and under what circumstances students should not be mainstreamed. At the same time, school districts have borne a heavy financial burden as a result of the federal government’s persistent failure to fund the special education services that it mandates.

Similarly, Minow shows how the Brown decision encouraged litigation on behalf of gender equality. The Civil Rights Act forbade discrimination based on sex, followed in 1972 by legislation that included Title IX, which required that institutions receiving federal funding must equalize spending on programs for males and females. But abstract principles of fairness led advocates to different conclusions. Some sought to eliminate all gender distinctions, including single-sex institutions; but others insisted that enrollment in single-sex schools was voluntary and that such schools, unlike racially segregated schools, did not stigmatize students. Here Brown offers little guidance, because the courts have ruled against boys-only schools but not against girls-only schools. And at present, as more districts open single-sex schools, both boys’ schools and girls’ schools seem to be acceptable to the courts so long as they offer “separate but equal” facilities and resources.

Minow’s guidance on some current issues is surprising. Looking for the legacy of the Brown decision, she endorses school choice, despite its segregating effects. It is a peculiar conclusion, because Minow recognizes full well that choice was the preferred strategy of those who sought to evade the intent of Brown, and she recognizes that contemporary choice strategists are based in conservative think tanks and funded by conservative foundations. And yet she believes that school choice has somehow evolved into a strategy “endorsed by civil rights advocates, business leaders, and school reformers.” She is even persuaded that special-identity schools (such as schools based on ethnicity, language, or cultural heritage) may facilitate self-segregation yet also “promote integration across lines such as race, class, gender, immigrant status, language, and disability.” How or why this will happen is not clear.

Minow acknowledges that empirical evidence about the efficacy of choice is “limited and unreliable, given that studies are usually funded by politicized sources,” yet she believes that choice has unleashed school innovation and that parental choice itself will promote “greater family involvement, a strong factor in student achievement.” She seems persuaded by the choice movement’s efforts to frame its program as an evolutionary stage following the civil rights struggles of the twentieth century, the legatee of the Brown decision. Minow admits that “the actual effects of vouchers, charters, and other school choice efforts on student achievement are complex, unclear, and disputed.” Despite consistent evidence that charter schools and other schools of choice are often highly segregated, she contends that government officials might impose regulations to make them pluralistic. Vouchers and charter schools, she hopes, may advance integration and inclusion. She concludes that charter schools and parochial schools might even be “the heirs of the original common schools.”

Minow reaches her conclusions without referring to important contrary evidence. As she points out, the evidence on vouchers and charters is inconclusive, but she fails to mention some major studies that were available before she finished her book. For example, a national evaluation of charters by the Stanford economist Margaret Raymond in 2009 found that only 17 percent of charter schools outperformed matched public schools, while 46 percent produced gains that were no different, and 37 percent were worse. The study was funded largely by conservative foundations, so its findings run counter to what one might expect. Nor did Minow refer to results on the National Assessment of Educational Progress (NAEP), the federal test administered in every state and considered the gold standard of testing. Charters have been compared by NAEP to regular public schools since 2003, and have never outperformed them, whether one looks at scores of black students, Hispanic students, low-income students, or urban students. Behind the averages, which are none too promising, is this reality: some charter schools are excellent, some are abysmal, and most are somewhere in between. On the whole, students enrolled in charters do not outscore students in regular public schools on federal reading and math tests.

Moreover, charters are hardly models of integration and inclusion. Numerous studies have shown that they enroll disproportionately small numbers of students who are non-English-speaking and who have disabilities. There is also research, such as that by Tom Loveless and Katharyn Field of Brookings, showing that charters may promote racial segregation, since parents tend to choose schools with a racial profile matching their own. According to the Civil Rights Project at UCLA, the rapid growth of charter schools is expanding a sector that is even more segregated than the regular public schools. Gary Orfield, who directs the Project, remarked that “the charter movement has flourished in a period of retreat on civil rights.”

Minow might have also tempered her enthusiasm for choice had she looked more closely at the current status of academic achievement in Milwaukee and Cleveland, two of the cities where choice programsboth vouchers and chartershave been in effect the longest. For years, choice promoters claimed that competition would cause the public schools to get better, that it would act as a rising tide that lifts all boats. But this did not happen. Vouchers started in Milwaukee in 1990, with state legislative approval and support from local black leaders; and the program took off in 1998, after the Wisconsin Supreme Court ruled it constitutional. Today about twenty thousand students attend more than one hundred non-public voucher schools and another sixteen to seventeen thousand are enrolled in charter schools. Enrollment in public schools steadily declined after 1998 to about eighty-two thousand. The latest evaluations concluded that students in voucher schools make no greater gains than those in public schools. Black students in public schools (including those in charter schools) have NAEP scores that are below those of black students in Mississippi and Alabama. There was no rising tide in Milwaukee.

Cleveland has an equally dismal situation. Its voucher program was established in 1995, and scholars continue to debate whether students in the voucher schools have or have not made academic gains. But one thing is clear: the competition with schools of choice has not led to any improvement in the public schools. The Cleveland schools have taken the national tests since 2003, and they continue to be one of the nation’s lowest-performing urban districts.

A big problem with vouchers, as Minow notes, is that they are deeply unpopular. Academics debate their efficacy, and which group or subgroup benefits most by going to a non-public school, but whenever the issue is put to a vote, the idea of giving public money to sectarian schools is overwhelmingly defeated. Their supporters blame the teachers’ unions for defending public education, but even well-funded voucher campaigns have lost by large margins. The public seems to want to maintain a public school system.

Charters are a different issue. When asked by pollsters, most people do not understand what they are or how they function. Unlike vouchers, charters have never been put to a popular vote; instead they have advanced through state legislatures, where the charter movement’s ability to muster campaign contributions (dwarfing those of teachers’ unions) has made a significant difference. Charters, like all forms of school choice, have been a favorite policy of Republicans for many years. The triangulating President Clinton endorsed them, too. Now charters have the energetic support of President Obama, Secretary of Education Arne Duncan, business leaders, and major foundations, all of whom are convinced that private management will produce better outcomes than regular public schools. Charters enjoy the tremendous financial clout of the hedge-fund managers clustered around Democrats for Education Reform. This strange-bedfellows alliance of market-minded Democrats and Republicans has turned charters into the hottest “reform” idea of the moment, even though the quality of the schools varies dramatically.

There are now at least five thousand charter schools, enrolling 1.5 million students. Under pressure from the Obama administration, most states have pledged to create many more. Although the name “charter” does not represent any particular educational program or philosophy, the elixir of private management is supposed to be the cure that will transform the nation’s poorest neighborhoods and lift up its lowest-performing students. But what typically happens is that charters open in poor neighborhoods, hold a lottery, attract the most motivated families (who know enough to enter a lottery), and then have the freedom to remove students who are allegedly not a good fit. That leaves the regular public schools with a disproportionate share of the students who are most challenging to educate.

The present turn to the free market and deregulation represents a sense of hopelessness about our society’s capacity to provide educational opportunity to poor and minority children, especially those who live in racially isolated neighborhoods. The test scores in cities such as Detroit, Cleveland, and Chicago are persistently low. Something must be done. We are a can-do society. If government cannot do the job, then why not turn “those kids” over to corporations and entrepreneurs who can make their own rules, eliminate those troublesome teachers’ unions, hire teachers who will work a sixty-hour week, and establish stern discipline?

Unfortunately, education is a slow process, and not amenable to quick fixes. Children learn one day at a time. The results of schooling are influenced by the social and economic conditions of the families who send their children to school and the society in which they live. In all the talk about school reform these days, it has become reflexive to discount the significance of poverty and race. Our reformers tell us that any such references are just excuses. They want “no excuses” schools, where every student is prepared to go to a four-year college. We all want that. But it turns out to be a very elusive goal, because poverty and racial isolation are heavy burdens for children to bear.

If the problems of urban education were amenable to the current reform ideas, we would certainly look for answers to Chicago, where Arne Duncan was superintendent for seven years, or to New York City, where Joel Klein took charge in 2002. But according to a study in 2009, most of Chicago’s students drop out or fail to meet state standards. And in New York City, which had boasted of historic test-score gains since 2003, the gains shrank this past summer when a new state commissioner recalibrated the scores, admitting that those in previous years had been inflated.

It could not have been the intent of the Warren Court in 1954 to place full responsibility on the nation’s schools to undo generations of racial discrimination and subjugation. Yet here we are in 2010, castigating the schools, blaming teachers, firing school staffs, and closing schools, because the achievement gap persists between children of different races. This allows us to forget what used to be referred to as the “root causes” of low academic performance: poverty, racial isolation, and all the social ills associated with economic insecurity, poor nutrition, and inadequate living conditions.

Last year the Annals of the American Academy of Political and Social Science published a retrospective on the famous Moynihan report of 1965 called “The Negro Family: The Case for National Action.” Moynihan was bitterly denounced for calling attention to the issue of out-of-wedlock births, and he was accused of “blaming the victim.” At the time, the black illegitimacy rate was 25 percent; now it is nearly 70 percent. Unemployment rates among black men are higher now than when Moynihan wrote his report. Incarceration rates are astonishingly high: in the Annals’ collection of essays, the sociologists Bruce Western and Christopher Wildeman write that “by the early 2000s, more than a third of young black noncollege men were incarcerated. Among black men younger than forty, there were nearly twice as many prison records as bachelor’s degrees.” Moynihan’s report, writes Western, marked a fork in the road. Moynihan called for “increased social investment to avert the problems of crime and poverty,” but America decided instead to build more prisons to contain social disorder. Incarceration rates in the United States are far greater than in any European nation; blacks are eight times more likely to be incarcerated than whites.

What a tangle of social pathology developed as cities lost industries and jobs, as the middle class took flight, as crime and violence increased, and as the prospects for a decent life evaporated for those left behind. Nathan Glazer observed recently in The American Interest that we as a society seem to be unable to confront the problems of race and poverty. “There was a time not so long ago,” he said, “when we had trouble having a dispassionate, constructive discussion of these matters in public; now we seem unable to have any discussion at all.”

Now, instead of talking about rebuilding our cities, creating jobs for unskilled workers, retraining those whose jobs were lost to globalization, and reducing poverty, we blame the teachers and the schools for the conditions that limit their students’ lives and aspirations. Charter schools and vouchers provide an escape hatch for some students, but they are no replacement for a sturdy and reliable public school system. No high-performing school system in the world achieved its eminence by privatizing its public school system.

Our schools need to be improved. They need better-prepared teachers, better principals, better instruction, better curricula, better assessment, and more resources for schools that enroll students who are poor, disabled, homeless, and/or do not speak English. Yet if we want to improve the education of our children, we must look beyond the walls of the schools. According to Gary Orfield, who has been railing against segregation for years, black and Hispanic students are more segregated today than they have been at any time in the past four decades. About 40 percent of these students attend “intensely segregated” schools, where they seldom interact with white or Asian students. The typical black or Hispanic student, he says, attends a school in which nearly 60 percent of his or her classmates are poor.

The Brown decision wisely and bravely struck down state-imposed racial segregation. Martha Minow capably describes how that decision changed the lives of millions of people. What can it tell us today about the intense racial isolation and poverty that bind the lives of so many young Americans? Perhaps the lesson for us today is to look to that period in the late 1960s when the three branches of government worked together to design and to implement nothing less than a vision of a better society.

Diane Ravitch, a historian of education, is research professor of education at New York University. This article ran in the October 14, 2010, issue of the magazine.

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