Ask the Author: Interview with Martha Minow, part II

7. You’re very upfront in the book that you think that allowing parents to choose their children’s schools will probably lead to self-segregated schools.  Does that undermine Brown?

The movement toward school choice is one of the most intriguing and paradoxical consequences of Brown.  School choice emerged very early on as a technique for avoiding integration in the South, as individual parents pursued private schools as an alternative – and some states authorized funding for private schooling.  But then in some states and communities – like Boston, like Cambridge – school choice became a technique of racial integration itself, as part of a program of developing magnet schools and other kinds of attractive programs in a citywide or system-wide context.  In the current climate, school choice has become possible within the public school system across the diversity of public school options and charter schools – and in some communities with private schools through voucher options.  I’ve been intrigued by and trying to follow the creation of “special identity” schools, though I am concerned that one of the consequences of school choice may be to depress not only the mixing of students of different backgrounds but even the ideals behind it.

8. Let’s turn to your chapter on the international effects of Brown.  You say that, for segregated communities abroad, Brown was a symbol of equal opportunity and an inspiration for their own legal battles.  But as we said before you also believe that Brown has been undermined in the United States by re-segregation.  Has the perception of Brown changed abroad, too?

I think that Brown continues to have resonance in many parts of the world for its aspirational qualities even more than for its disappointing results in terms of actual racial integration.  Take for example the education of Roma children in the Czech Republic, as well as the continuing separate education of Protestant and Catholic students in North Ireland and of black South Africans and white South Africans.  When it’s invoked in those contexts, Brown does seem to inspire lawyers and advocates to pursue integration.  It also has inspired social scientists studying communities in each of those contexts.

I was intrigued a great deal that the repercussions of Brown in the U.S. for the treatment of students with disabilities and for students who speak a different language at home than the language spoken in schools recur in the advocacy effort in contexts like the Czech Republic, South Africa, and Northern Ireland.  So the complicated legacies of Brown across many of these dimensions recur in the international context.  One reason they recur is that the debate about whether equal educational opportunity is best served by integration or instead by separate instruction is particularly acute in the context of students with disabilities and language differences.

9. You say at the very end of the book that one legacy of Brown is that everyone claims the case as their own.  It is used to support an array of even contradictory positions on civil rights issues because everyone agrees it’s right.  Do you think any views wrongfully claim Brown as their foundation?

I think that Brown has acquired iconic status, and therefore people who disagree about particular policy issues all try to take advantage of that status.  The abstract claim that equal treatment means identical treatment sometimes leads, in my view, to unfortunate results because identical treatment of people who are differently situated doesn’t always mean equal opportunity.  There are debates, therefore, about integrating students with severe disabilities in mainstream classrooms, for example, where people on both sides of the debate invoke Brown.  There are debates about whether there should be a public high school for students who identify as gay, lesbian, or transgender—as there is in New York City – the Harvey Milk School.  People who think that there shouldn’t be such a school say it violates the ideal of integration in Brown.  And yet the advocates of that school argue that it advances the ideal of equal opportunity.  So I’m not suggesting that there’s a wrong use of Brown as much as identifying the dilemmas presented by the ideal of equality captured in Brown.

10. Five Supreme Court Justices in the most recent school racial integration case, Parents Involved, affirmed that school diversity is a legitimate government interest.  But then one of those five – Justice Kennedy, the only one of them who voted to strike down the racial integration policy – limited the means of achieving diversity in his controlling concurrence.  After Parents Involved, what is the legal future of the diversity rationale?

It’s been fascinating to watch community groups and lawyers work in the shadow of the Parents Involved decision.  The Berkeley school system plan that uses neighborhoods as the basis for school assignment has been upheld in courts. There the racial disparity in the neighborhoods is clearly animating the use of the neighborhoods for school assignment.  This approach comports with one of the opportunities identified by Justice Kennedy in his concurring opinion.  And so the diversity rationale is still available to school systems.  Deliberate efforts to achieve racial mixing can be pursued as long as individual students are not assigned to schools based on their race except in very limited circumstances. There are other school systems struggling to comply with the Court’s decision in Parents Involved, but the critical opinion by Justice Kennedy left open the possibility of even explicit use of race in particular cases.  So I don’t think we’ve seen the end of that case and its repercussions for local school systems.

11. Which big issues concerning school integration – racial or otherwise – do you think are likely to come before the Court next?

I think that the treatment of gender separation in schools is on its way to the Court.  There are an escalating number of single-sex classrooms and single-sex schools operated by public school systems or with public dollars.  And there’s confusion, even among advocates, about what is the best interpretation of statutory as well as constitutional law with regard to those programs, including whether there must be a comparable alternative offered to people of the other sex.  That was a question that was left open in the Virginia Military Institute case [United States v. Virginia (1996)], and I think that there will be further litigation on that question in the federal courts.  It may well make its way up to the Supreme Court.