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| Thurgood Marshall, appointed by Kennedy to the United States Court of Appeals for the Second Circuit. (Photo credit: Wikipedia) |
Jim Castagnera: Remembering “Brown v. Board of Education”
[Jim Castagnera is the associate provost/associate counsel at Rider University and a 2007-08 Fellow of the Foundation for Defense of Democracy.]
Last week the U.S. Supreme Court announced its decisions in Parents Involved in Community Schools v. Seattle School District No.1. Yes, I said decisions, plural. No fewer than four separate opinions were filed in this 5-4 decision in which the bare majority struck down attempts by school-district defendants to assign students on the basis of race. The split decision is part of a pattern of disagreement and dissent on the nation’s highest judicial bench. If my count is correct, the nine justices have divided 5-4 on about one third of the cases they decided during this term. More precisely, my count is 22 decisions in which the vote was 5-4 in 19 cases, plus two 6-3 decisions and one 5-3 ruling… all these out of a total of some 60-plus cases.
More troubling still is the fact that 5-4 on the face of this highly significant school desegregation case masks the actual depth of the disagreements among the Supremes. The four-justice conservative clique --- Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito --- would allow no consideration of race whatsoever in assigning children to particular public schools. Never mind that the defendants’ purpose was to prevent de facto segregation along black-white lines. Justice Anthony Kennedy, increasingly the swing vote on the divided court, agreed with his four neo-con colleagues that the defendants’ approach was unconstitutional. But his separate, concurring opinion held that diversity remains a valid goal of our educational institutions and, therefore, some consideration of race in the assignment of school children may be permissible.
In dissent were Justices Stevens, Souter, Ginsberg and Breyer. Not satisfied simply to join the dissent penned by Breyer, Justice Stevens wrote a separate dissent of his own as well. Perhaps the most remarkable aspect of all these 185 pages of judicial pronouncements and pontifications is that both sides cited 1954’s landmark Brown v. Board of Education of Topeka, Kansas for their positions.
Chief Justice Roberts wrote for the bare majority, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons.” Justice Stevens sadly retorted, “There is a cruel irony in the Chief Justice's reliance on our decision in Brown v. Board of Education…. The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France's observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’”
What a contrast this case makes to the Brown opinion, penned by Chief Justice Earl Warren. The former California governor, who during WWII signed the order evicting 110,000 Japanese Americans from their homes, did not look like the man who would lead the fight to overturn separate-but-equal as the law of the land. Certainly, President Dwight Eisenhower, who appointed him to head a court as badly fragmented as the one we have today, did not expect this of the man who had said, “If the Japs are released, no one will be able to tell a saboteur from any other Jap.” (Talk about profiling!)
Shortly after appointing Warren, Ike seated him at a White House dinner next to the chief counsel for the segregationists in the consolidated cases collectively called Brown. Ike told Warren the attorney was “a great man.” As for his clients, said Ike, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.” To quote the late, great journalist David Halberstam, “If Dwight Eisenhower had decided… that the two of them shared similar attitudes and values, then he was wrong.”
In the months that followed his confirmation, Warren achieved the impossible, bringing liberals and conservatives, included segregationists, on the high court together in a unanimous opinion that is one of the truly eloquent pieces of literature in the annals of the common law. Its eloquence is enhanced by its brevity.
What should sadden all of us, liberals and conservatives alike, as we review the vast, unwieldy tome of Seattle School District No.1, is the apparent inability of our newest chief justice to bring together his eight colleagues on the big issues… this at a time when national elections are decided by the narrowest of majorities, if not mere pluralities, and we are in desperate need of the law’s guiding beacon in the dark days ahead.
Last week the U.S. Supreme Court announced its decisions in Parents Involved in Community Schools v. Seattle School District No.1. Yes, I said decisions, plural. No fewer than four separate opinions were filed in this 5-4 decision in which the bare majority struck down attempts by school-district defendants to assign students on the basis of race. The split decision is part of a pattern of disagreement and dissent on the nation’s highest judicial bench. If my count is correct, the nine justices have divided 5-4 on about one third of the cases they decided during this term. More precisely, my count is 22 decisions in which the vote was 5-4 in 19 cases, plus two 6-3 decisions and one 5-3 ruling… all these out of a total of some 60-plus cases.
More troubling still is the fact that 5-4 on the face of this highly significant school desegregation case masks the actual depth of the disagreements among the Supremes. The four-justice conservative clique --- Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito --- would allow no consideration of race whatsoever in assigning children to particular public schools. Never mind that the defendants’ purpose was to prevent de facto segregation along black-white lines. Justice Anthony Kennedy, increasingly the swing vote on the divided court, agreed with his four neo-con colleagues that the defendants’ approach was unconstitutional. But his separate, concurring opinion held that diversity remains a valid goal of our educational institutions and, therefore, some consideration of race in the assignment of school children may be permissible.
In dissent were Justices Stevens, Souter, Ginsberg and Breyer. Not satisfied simply to join the dissent penned by Breyer, Justice Stevens wrote a separate dissent of his own as well. Perhaps the most remarkable aspect of all these 185 pages of judicial pronouncements and pontifications is that both sides cited 1954’s landmark Brown v. Board of Education of Topeka, Kansas for their positions.
Chief Justice Roberts wrote for the bare majority, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons.” Justice Stevens sadly retorted, “There is a cruel irony in the Chief Justice's reliance on our decision in Brown v. Board of Education…. The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France's observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’”
What a contrast this case makes to the Brown opinion, penned by Chief Justice Earl Warren. The former California governor, who during WWII signed the order evicting 110,000 Japanese Americans from their homes, did not look like the man who would lead the fight to overturn separate-but-equal as the law of the land. Certainly, President Dwight Eisenhower, who appointed him to head a court as badly fragmented as the one we have today, did not expect this of the man who had said, “If the Japs are released, no one will be able to tell a saboteur from any other Jap.” (Talk about profiling!)
Shortly after appointing Warren, Ike seated him at a White House dinner next to the chief counsel for the segregationists in the consolidated cases collectively called Brown. Ike told Warren the attorney was “a great man.” As for his clients, said Ike, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.” To quote the late, great journalist David Halberstam, “If Dwight Eisenhower had decided… that the two of them shared similar attitudes and values, then he was wrong.”
In the months that followed his confirmation, Warren achieved the impossible, bringing liberals and conservatives, included segregationists, on the high court together in a unanimous opinion that is one of the truly eloquent pieces of literature in the annals of the common law. Its eloquence is enhanced by its brevity.
What should sadden all of us, liberals and conservatives alike, as we review the vast, unwieldy tome of Seattle School District No.1, is the apparent inability of our newest chief justice to bring together his eight colleagues on the big issues… this at a time when national elections are decided by the narrowest of majorities, if not mere pluralities, and we are in desperate need of the law’s guiding beacon in the dark days ahead.
*******************************************************************************
So why are we so willing, even eager, to gut them now?
CPS Statement on Boston District-Charter Compact
To: The Boston School Committee
From: Citizens for Public Schools (CPS)
Date: September 19, 2011
Re: The Proposed District-Charter Compact
From: Citizens for Public Schools (CPS)
Date: September 19, 2011
Re: The Proposed District-Charter Compact
Citizens for Public Schools has reviewed the proposed District-Charter Compact. It is not at all clear to us what is in it for the city of Boston and the district’s students. We are deeply concerned that this compact, modeled on a national initiative of the private Gates Foundation, is being implemented without appropriate discussion and input from Boston parents, students, teachers, or the broader community.
First, we cannot determine who or what is the Boston Alliance of Charter Schools. The Secretary of State’s office has no record of the organization’s existence. If and when it is formed, will it have authority over all of the current and future charter schools in Boston, superseding the Board of Directors of each of the charter schools? Will it have paid staff and who will pay them? Will it be subject to the open meeting law?
The document gives equal weight to a large urban school system under a superintendent of all district schools and a network of individual school districts (charter schools) designed to be in competition with the public school district and one another. Hardly a level playing field when charter schools are able to cap their enrollment while the district schools must take all comers at any time of the year, or when charter schools are able to limit their enrollment of English Language Learners and students with moderate to severe disabilities, or when charter schools can say to a family and student that the school is not a good fit for them and thereby counsel them out.
This looks like a one-sided agreement benefiting charter schools at the expense of the district students. The public needs to know what financial arrangements have been made in order for these changes to take place. The Gates Foundation has given grants to other school systems in exchange for similar compacts. Is this the case in Boston? How much money has been promised? And for what purposes? Where is the public oversight and accountability?
The proposed “Office of Compact Agreement” is to be a “non-profit” with five representatives from the Boston Public Schools and five from the Boston Alliance of Charter Schools. Again, this is a creation without input of parents, community organizations, teachers and students. In fact, the Compact proposal fails to mention parents at all. Will this office be subject to the open meeting law? Will it have a budget and staff? Who will pay for it? The Compact allows the School Committee to cede some strategic planning to this new Office of Compact Agreement. This includes school assignment and enrollment issues, always contentious in Boston.
We are especially concerned about the leasing of vacant and under-utilized buildings to charter schools. New York City’s experience should raise a red flag about the potential for children to be displaced and poor neighborhoods hurt when charter schools move in. Clear winners in New York include “edupreneurs” who make millions “managing” public education dollars, real estate moguls, hedge fund managers, and million-dollar charter school “directors” (CETF Responds to RCSD/Charter Compact and School Closings). Parents, meanwhile, are suing the city, taking away resources and energy from teaching and learning.
Will charter schools pay fair market value for leasing schools–what does “charter assistance with transportation” mean?
Charter schools already enroll a significantly lower percent of students with moderate to severe disabilities. Why would the district agree to serve even more of these students, letting charter schools “off the hook” for serving an important group of students who also happen to be more expensive to educate? Beyond “lip service,” what firm commitments are charter schools making to be held accountable for enrolling and serving a representative share of English Language Learners?
The Compact makes no mention of solving the most vexing problem associated with Boston charter schools–their high attrition rate. For years district schools have complained about the disruption caused to students and classrooms when charter school students are sent back mid-year (and often just before MCAS tests are given) to district schools. What commitments are charter schools going to make to substantially reduce their attrition rates?
Why should charter schools have a say in evaluating the efficacy of district schools? Boston has a school department and a school committee as well as the Department of Elementary and Secondary Education and the Board of Elementary and Secondary Education, whose mandated responsibilities could now be taken over by private entrepreneurs whose interest is to have schools close so they can take them over.
At least nine cities have been operating on such Gates Foundation plans, has anyone looked at the results to date?
Ultimately, this proposed compact does little to benefit the Boston Public Schools by addressing the key challenges that charter schools present – high attrition rates which send students and families back into district schools throughout each school year, the substantial under-enrollment of English Language Learners and students with special needs which places a disproportionate burden on the school district to serve these students, and the significant transportation costs for transporting Boston students to and from charter schools across the city. Any agreement with charter schools should be tied to firm and measurable commitments to which charter schools and the district can be held accountable.
Marilyn J. Segal, Executive Director
Citizens for Public Schools
Citizens for Public Schools
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