Unnatural Selection 

An uneasy mix for Metro schools

An uneasy mix for Metro schools

Murray Philip, whose son Christopher lost out this past weekend in his bid to attend one of Metro’s magnet schools, is asking other parents whose children are in the same boat to consider joining him in a lawsuit.

Philip and other disgruntled parents may not be able to challenge the 60-percent non-black/40-percent black quota (give or take 10 percent) for Metro’s magnets right now, since those percentages are court-ordered. But, several local legal experts say, the parents could challenge the quota system once the 40-year-old desegregation order is lifted in federal court and Metro is once again given control of the system.

Metro could soon be free of the court order, provided Metro Council this summer passes Mayor Phil Bredesen’s 12-cent tax increase to fund millions in school improvements. Both the majority of the school board and the plaintiffs in the continuing desegregation case are pushing for the improvements.

In a lottery drawing last Saturday, about 1,000 students were selected, from a pool of 2,500 applicants, to fill Metro’s magnet schools. Christopher Philip wasn’t one of the lucky ones. Murray Philip, who has been an outspoken critic of racial quotas in magnet schools, has distributed a letter to parents to do something about the controversial method of selection.

”Today, like you, my own son’s educational future is dependent on the luck of the draw. I think this is wrong,“ Murray Philip says in the letter, adding, ”there are some things that we can do to correct this situation...even file a lawsuit.“

Philip has called on those ”concerned“ and ”willing to take a stand“ to pass their names and phone numbers along to him.

Criticizing the quota system, Philip told the Scene, ”Diversity in Nashville is determined by the plaintiffs in the desegregation suit and only measured in terms of creating opportunities for blacks.“

Philip also insists it’s not just whites who are being kept out of magnet schools. In some instances, he says, blacks are also kept out of magnets housed within predominantly black schools. ”In either case, it’s wrong,“ Philip says.

Independent legal experts say a successful challenge could be mounted against Metro’s system of using race to help determine who attends its magnet schools. But the same experts also say the quota system could be easily rectified. ”If the magnet school plan is challenged, fine,“ says one local attorney familiar with the desegregation case. ”The city could just use [test] scores or geographics to determine who gets in.“

Indeed, the Metro school board has more to worry about than the racial balance in its magnet schools. Some lawyers and Metro officials say the real issue is the possible unconstitutionality of the student assignment pattern that the school board and the plaintiffs in the desegregation case have developed. If Nashville implements a voluntary desegregation plan, one that has been proposed by the school board and the plaintiffs, the entire system might find itself back in court, facing charges that it still uses race to help determine where students attend school.

Assuming the 12-cent tax increase passes, the school system would not only get new schools. It would also get a new school zoning pattern. The new zoning would eliminate the most egregious cases of crosstown busing, but it would still use busing to assure diverse student bodies. It would also allow busing for magnet-school students, who currently must provide their own transportation.

In short, the school system would still be using race to help determine which students attend which schools. Attorneys for the school system and the plaintiffs in the desegregation case have contended—based on past court rulings—that their proposal would pass judicial review.

Marian Harrison, attorney for the school board, cites the 1971 Swann vs. Charlotte-Mecklenburg Board of Education ruling to defend the constitutionality of the board’s desegregation plan. In that case, the U.S. Supreme Court ruled it was within the ”broad, discretionary powers of school boards“ to have a ”prescribed ratio“ of blacks and whites in the schools.

Beyond that, Harrison says, diversity is not the only criterion used to determine school assignments. ”There are a whole lot of other factors that cause the assignment plan to look like it does,“ she says. Among those factors, Harrison says, is a desire to let students attend schools that are as close as possible to their home neighborhoods. Taken together with the discretion that the Swann case gave school boards, Harrison says, those factors are ”really the basis of our feeling that this is a constitutional plan.“

But it’s still not entirely clear. More recent U.S. Supreme Court cases make it more difficult for government to use race as a determining factor, whether the issue is affirmative action or education. In several cases, the nation’s highest court has said racial classifications can only be used if they survive ”strict scrutiny,“ the court’s toughest level of review.

Bredesen is concerned enough about the possible illegality of the plan that he has qualified his proposed funding for schools predicated on ”a legal opinion from either the Metro Legal Department or a disinterested outside attorney with suitable expertise that the proposed assignment plan is legal.“

Neither Metro legal director Jim Murphy nor a ”disinterested“ outside attorney has issued a formal opinion about the plan’s legality. Murphy says he’s ”still looking at it.“ Meanwhile, lawyers without a dog in the fight tell the Scene they aren’t so sure the student-assignment pattern is constitutional. They warn there is little legal precedent that specifically governs what school systems can do after courts have lifted desegregation orders.

One high-profile local attorney wonders, ”Can racial diversity be a factor in your decision-making in things like student assignment and magnet schools after“ the court order is lifted? ”There’s no guidance on any of this. There are no good, clear definitive cases.“

No easy answers

In 1971 the U.S. Supreme Court ruled in the Swann vs. Charlotte-Mecklenburg case that busing is an appropriate means to achieve school desegregation. In more recent years, the high court has resisted continuing judicial oversight of school systems, even when blacks remain relatively isolated from whites and even when minority students continue to demonstrate poor achievement levels.

In the Missouri vs. Jenkins case in 1995, Chief Justice William Rehnquist chastised a federal judge who had allowed the Kansas City school system to remain under judicial control for 18 years. Rehnquist wrote in the majority opinion that ”the end purpose“ of a desegregation order ”is not only to remedy the violation to the extent practicable, but also to restore state and local authorities to the control of the school system.“

Justice Clarence Thomas, a black conservative, concurred with Rehnquist, writing, ”It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.“ Thomas added that the theory that ”black students suffer an unspecified psychological harm from segregation that retards their mental and educational development“ depends on the flawed idea that blacks are somehow inferior.

In the Kansas City case, the justices were split 5-4. In dissent, Justice Ruth Bader Ginsburg wrote, ”Given the deep, inglorious history of segregation in Missouri, to curtail desegregation at this time and in this manner is an action at once too swift and too soon.“

Watching and waiting

Murray Philip and other Nashvillians are keeping a close eye on a federal court case in Boston because its ultimate resolution could have an impact on Metro.

As a result of efforts to get his daughter admitted to an advanced school last year, Boston attorney Michael McLaughlin forced the local school system to throw out an admissions policy that reserved 35 percent of the enrollment for blacks and Hispanics. Boston abandoned the policy, replacing it with one that selects the first 50 percent of students on the basis of academic qualification and the remaining 50 percent according to the proportion of their racial group in the top half of the applicant pool. In other words, if blacks and Hispanics make up 60 percent of all applicants, the second half of the student body will be 60 percent black and Hispanic.

As a result of the revised system, McLaughlin says, all races try to stack the deck to get as many students as possible to show up to apply, whether or not the students actually want to be admitted.

Now McLaughlin is challenging the new policy. He is suing on behalf of ninth-grader Sarah Wessmann, who was denied admission to an advanced school, although her test scores were higher than those of 10 minority students who were admitted to the school. The school system defends the quota system, arguing that diversity is vital to education.

”We are not arguing that diversity is not a good thing,“ McLaughlin said during a phone interview. ”I live in a city, in a neighborhood that’s 40-percent black. My children have always gone to schools that are a high percentage black, and I do agree they need to be brought up in a way that they can understand people of different backgrounds.

”But to come to the decision for Nashville or anyone that diversity, in and of itself, achieves something for every race—and therefore we can deny individuals access—is fundamentally unsound.“

McLaughlin says Boston’s superintendent of schools testified in court that excellence in education can only be achieved ”through“ diversity. ”When I asked what was the percentage of blacks and Hispanics at Harvard University—which is only about 11 percent—the judge wouldn’t allow him to answer the question because the judge knew where I was going,“ McLaughlin says.

The Boston attorney, who expects a ruling within about eight weeks, predicts that Nashville may soon be stepping onto a ”slippery slope,“ and he warns that if the Metro school board’s policy ”has a racial component, it will ultimately fail the students, and it will ultimately hide the lack of performance of the idiots who run the public schools.

”These are fundamental constitutional issues that are being confused with politically correct issues, and they cannot coexist.“

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