In August, the Illinois school district that encompasses Evanston announced its plans for a limited opening in September. Expecting that, given the pandemic, not enough teachers would return to schools, the district superintendent said that priority for attending classes in person would go to “Black and Brown students,” and others he considered to “marginalized” or “oppressed.”
In other words, key educational opportunities would be granted and denied on the basis of race.
What was the justification for the school district’s racial discrimination? The superintendent, Devon Horton, explained:
We are in a pandemic. . .But there was a pandemic before this. That was inequity and racism, and classism and all of these other things.
The superintendent wasn’t talking about current racism by the school district. He didn’t cop to that, and it’s not plausible, given the decision to favor “Black and Brown students,” to believe that the school district currently discriminates against them. Nor is it likely that the district has discriminated in recent decades.
Superintendent Horton’s justification was “societal discrimination” and perhaps discrimination by his school district in the distant past. However, as I understand the law, these justifications have never been accepted by courts as grounds for discriminating on the basis of race.
The key case is Bakke, the 1970s decision in which the Supreme Court embraced “diversity” as a rationale for discrimination by educational institutions against white applicants. The Court might have used “societal discrimination” as a justification, but Justice Lewis Powell, the swing vote in the case, rejected this rationale. He correctly called it “an amorphous concept of injury that may be ageless in its reach into the past”.
“Diversity” was the rationale that appealed to Powell. Thus, we’ve been saddled with the diversity rationale ever since. Indeed, it has become a fetish, rather than the footnote it probably would have been, but for Lewis Powell.
Unfortunately for the school district in Evanston, “diversity” can’t justify excluding Whites from the classroom in favor of “Black and Brown” students. In fact, the diversity rationale cuts strongly against the school district’s policy. If minority group members gobble up all or a large part of the seats, classrooms won’t be racially diverse.
It goes to show that, deep down, few take diversity seriously as a rationale for racial preferences. White “guilt” over past injustices, and the ability of race hustlers to leverage it, is the real basis for these preferences. However, the law has not accepted guilt, i.e., the concept of past “societal discrimination,” as a justification under the Constitution for preferring Blacks over Whites.
The Illinois school district need not expressly grant racial preferences in order to favor Black and Brown applicants. It might achieve that general result by using facially neutral selection criteria, such as family income level or academic performance. In fact, this is what superintendent Horton’s defenders said he really had in mind.
However, focusing on income level and academic performance might mean including some White students at the expense of some Black students, despite the superintendent’s promise to give Blacks priority. And it would almost certainly mean the exclusion of some LGBT students, very possibly a large percentage of them. Yet, LGBT students are among those Horton considers “marginalized” or “oppressed.”
From what I can tell, the school district began the school year with remote learning only. Currently, it plans to bring back a limited number of students, giving priority to the following groups based on recommendations from the State Board of Education:
Special Education – Does the student have an IEP or 504 Plan?
Emerging Bilingual (EB) – Is the student an Emergent Bilingual?
Low Income: Is the student eligible for free or reduced price meals?
McKinney Vento: Is the student currently experiencing transitional living?
Age: Is the student in early childhood (0-5 yrs), K, 1st grade, or 2nd grade?
However, superintendent Horton has admitted that he views these criteria as surrogates for having “historically been marginalized [Note: Not discriminated against, but “marginalized”] in educational institutions both locally and across our country,” and that this is why he plans to prioritize them.
I would be surprised if Horton can point to evidence of recent marginalization (whatever that might mean) of members of the groups in question by his school district. I believe he is looking for ways to do what he initially said he would do — favor Blacks at the expense of Whites — without making the racial preference explicit.
Superintendent Horton, as you might suspect, is a piece of work. He’s a social justice warrior steeped in the dogma of critical race theory.
His plans include excusing students for failing in turn in homework (that standard is too tough for many minority kids to meet, don’t you know) and forcing students to endure classes on racism.
What to do when trapped in a school district like this? If you can afford it, you can send your kids to private school, assuming that in a university town like Evanston there is one that’s less in the thrall of race hustlers than the local public school. Move to another part of the country? That’s not a practical option for many parents. Home school your kids? That’s not always an option either.
It’s not an easy situation, and it’s going to become more and more difficult in the coming years. I do suspect, though, that we will end up with two tracks of schools — a sane track and a track like superintendent Horton’s.
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