It's the discrimination, stupid

May 04, 2012 | By RALPH KASARDA

After the Lower Merion School District in Pennsylvania finished spending millions of dollars to modernize its two high schools, it decided to “equalize” student attendance.  District planners intended to force the same number of students to enroll at each school by redistricting the school assignment zones.  Parents and students were outraged after learning that students within easy walking distance of one high school would have to be bused to another school miles away.  That’s not all.

By the time the district unveiled its redistricting options to the public, it was clear that equalizing student enrollment meant much more than having the same number of students at each school, it also meant having the same proportion of students by race.  To accomplish this “race-based redistricting,” the district identified the neighborhood with the highest concentration of African American students.  The district then divided the neighborhood into two attendance zones to force the desired number of minority students to attend each high school.   Although the district proposed many different redistricting options, they all involved dividing the one neighborhood with the most African American students.

Understandably, the district’s use of race was met with charges of racism.  Parents voiced their concerns at school board meetings, protested, and united.  When the school board approved the redistricting – in the name of diversity – parents must have felt like shouting, “it’s the discrimination, stupid!”  Parents of nine African American students sued the district alleging the racial balancing was unconstitutional.  The president of the local NAACP chapter recognized that the new assignment zones were discriminatory, and testified on behalf of the parents and students.

As I described in a prior post, the trial court ruled that the district had indeed considered race when making its decision, but upheld the redistricting anyway.  The students appealed to the Third Circuit Court of Appeals.

That led to an interesting twist.  More after the break.

Over the complaints of the president of the local NAACP chapter, the national NAACP Legal Defense and Education Fund filed a friend of the court brief in support of the school district!

That prompted this complaint letter from the local NAACP chapter pointing out, among other things, that the district specifically targeted the historically African American neighborhood because of its demographic profile.  It would have been unconstitutional for the district to single out African American students individually, so it targeted the African American community instead.

The NAACP Legal Defense Fund still refused to support the minority students or withdraw its amicus brief as requested by the local NAACP chapter.  Instead, it responded by arguing that the minority students’ lawsuit threatened to undermine the landmark case of Brown v. Board of Education.  In Brown, the Legal Defense Fund explained, it won the battle to end racial segregation.  In the case of Lower Merion, on the other hand, the district’s goal is racial integration, not segregation.  Therefore, the Legal Defense Fund’s position is essentially that the government may use race to accomplish objectives for the greater public good even though the chosen action may disadvantage, even discriminate against, minorities locally.

The Legal Defense Fund’s position is wrong on many levels.  First, the issues in Brown and in the Lower Merion School District case are the same:  trying to stop government discrimination on the basis of race.  It is true that the students in Brown achieved a tremendous victory in overturning the “separate but equal” doctrine from Plessy v. Ferguson.  The Legal Defense Fund is justifiably proud and protective of that important decision.  But the heart of the matter in Brown was that African American students fought against  discrimination that resulted in school segregation.  That is, the government assigned students to schools on the basis of their race.  In Brown, the Topeka Board of Education decided which schools African American students could attend, and which schools they could not.  The students demanded desegregation, which 42 U.S.C. Section 2000c(c) defines as the “assignment of students to public schools . . . without regard to their race.”  To be assigned to schools without regard to race is also the goal of minority students in the Lower Merion School District.

Second, the Legal Defense Fund’s position that the African American students in Lower Merion must suffer discrimination for the greater good is directly contrary to our understanding of individual rights.  The Declaration of Independence proclaims “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”  By arguing that the minority students in Lower Merion must sacrifice their rights to allow the school district to pursue its own understanding of diversity, the Legal Defense Fund confuses individual rights with individual privileges.  Our “unalienable” rights are not privileges that the government may take away whenever it decides that it is our duty to relinquish them.

Finally, even though it may not intend it, the Legal Defense Fund’s argument is an attack on the Rule of Law.  Let me explain.  Most everyone has heard the term “rule of law” and assumes that refers merely to the understanding that the government must obey the law.  But as Friedrich Hayek explained in The Road to Serfdom, the Rule of Law is the ideal that government is bound by fixed laws which make it possible to foresee with fair certainty how it will use its coercive powers.  Laws providing the government with wide discretion to act arbitrarily depending on each new situation violate the Rule of Law, because the people cannot predict how the government will use its power.  This not only leads to uncertainty, but allows public officials to use the power of the state to carry out discrimination against any particular people.  For instance, here, the Lower Merion School District contends that achieving its understanding of diversity justifies the use of race.

Laws and legal decisions that permit the government to determine when it may engage in racial balancing do not serve the principle of equality under the law, but allow the government to discriminate when it chooses.  The president of the local NAACP chapter understood this danger when he warned in his letter:

If this decision is upheld, governmental agencies nationwide will use it to target minority communities for unfair and unequal burdens without needing to provide any race-based rationale.

Discrimination on the basis of race is always wrong.  That is why PLF attorneys filed a brief in the Supreme Court siding with the local NAACP and supporting the minority students in Students Doe v Lower Merion School District.