the Supreme Court and “discrimination”

I think my friend and sometime colleague Deborah Hellman has the best response to the Supreme Court’s ruling last week on school desegregation. The Chief Justice, in his opinion that will block most efforts to integrate public schools, wrote, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Debbie notes that there are two meanings of the word “discriminate.” It can simply mean to make distinctions: “For example, insurers routinely discriminate between potential insurance customers on the basis of the risk each poses of making a claim against the insurer during the policy period.” Also, schools “discriminate” among kids by giving free school lunches only to poor children. Many conservatives seem to feel that it would be perfectly appropriate to mix students by economic class, which would require making discriminations by family income. The Census Bureau, as Debbie notes, “discriminates” by recording people’s race.

“Discrimination” can also mean an invidious bias: an expression of disrespect, an attempt to harm, or an unfair treatment. America has always discriminated against Black kids in this bad sense of the word. That was blatant in the days of segregation, but it is also obvious today. For instance, we would not allow large numbers of white children to attend schools like the ones that enroll the African American teenagers I’m working with this summer–huge institutions with rapid turnover of teachers, where frequent fights draw large crowds that the security guards cannot control.

Justice Roberts says that you cannot cure “discrimination” (which presumably means invidious bias) by “discriminating” as the schools in Seattle and Louisville have done (i.e., by making school assignments to increase integration). He could be making an empirical claim. In other words, he could mean that to pay any attention to race will reinforce racist stereotypes. This empirical theory is likely false; in any case, it doesn’t follow from the Constitution. Elected local school boards ought to be able to adopt other views and strategies.

Alternatively, Justice Roberts could mean that attempting to integrate schools racially is discriminatory in the invidious sense. State discrimination in that sense violates the 14th Amendment. But, as Hellman writes, “racial balancing policies do not express that some students are less morally worthy than others or that their concerns are less important. Rather a policy of racial balancing expresses that a racial mixed environment is educationally useful and an important public good.”

Brown v. Board of Education banned racial discrimination in schools, where “discrimination” meant policies that both expressed contempt for Black children and harmed them. Those policies were rooted in hatred and violated the 14th Amendment. Last week’s decision banned well-intentioned and plausible ways to improve the quality of public education by mixing kids of different races. To say that Parents Involved in Community Schools v. Seattle School District was confused about “discrimination” would be charitable.