Raises The Stakes
Appeals Court Considering Rejection Of a Virginia School Board’s Kindergarten Lottery
By Eric St. John
RICHMOND, Va. — The assault continues. The first target was race-sensitive admissions programs in higher education — focusing on test-score differences between racial groups. Then the sights were shifted to secondary education, and the focus remained the same — test-score meritocracy. Now, opponents of affirmative action are taking aim at elementary education.But this time, there is no testing on which to focus. This time, the complaint is about a game of chance designed to ensure that the school’s racial population mirrors the community’s racial population.Last month, the U.S. 4th Circuit Court of Appeals heard arguments concerning a lower court ruling by U.S. District Judge Albert V. Bryan Jr. In May 1997, Bryan ruled that Virginia’s Arlington County school system was violating the U.S. Constitution by using racial preferences to admit students to its three magnet schools. He rejected the school district’s argument that its admissions system was justified by its duty to promote racial and ethnic diversity.A decision from the appeals panel could take up to a year.“We want them to take all the time they need to come back with a ruling in our favor,” says Lisa Farbstein, a spokesperson for the Arlington County School Board.The case was brought by the parents of three White preschoolers who were denied admission to the fall 1997 kindergarten class at the Arlington Traditional School, a countywide magnet school serving about 300 students from kindergarten through the fifth grade. The school was established in 1978 in response to parents who wanted high standards, an emphasis on phonics, and a dress code.
Reshaping a ‘Public Private School’The school became known, according to Frank Wilson, who is the only African American and the only male on the Arlington County School Board, as a “public private school” — a school for the privileged. So the school board met with school administrators, teachers, and parents, and came up with an enrollment solution that was designed to reflect the demographic makeup of the county as opposed to that of the neighborhood.“Being a minority, I know the test that we are put to in everyday life and I think it is so important to have the opportunity to start as youngsters to see that the only differences between us are skin color,” says Wilson, explaining why he believes in the importance of diversity.The solution was a lottery for selecting prospective students. The lottery was divided into two pools, says Wilson, one for minority students and one for majority students. For every majority applicant selected, a minority applicant would be selected.For the kindergarten class that entered in fall 1997, there were 185 applicants for 46 slots, according to The Washington Post. However, the proportion of White applicants was larger than their percentage of district enrollment overall. As a result, White students had less of a chance than minorities to get accepted.In his original decision, Bryan directed the 17,900-student district to stop using race as a factor in the admissions process.After that decision, Wilson says he wanted to appeal immediately, but was voted down 4-to-1. The board decided instead to take recommendations from the community about what to do with the admissions policy. The community group suggested adding language and financial criteria to the lottery’s racial component.Calling it a “transparent attempt to circumvent” his ruling, Bryan ordered yet another lottery — this one completely random. This time, the board voted unanimously to appeal.At the appeals hearing, attorneys for the Arlington County School Board expressed their dismay with Bryan’s rulings, according to Farbstein.“Judge Bryan usurped the school board’s role,” she says. “We think the judge went too far by telling us how we should run our lottery. We held a weighted lottery that used three factors — family income, the home language of the student, and race. Those are things that have been allowed before. A good example is the federal free lunch program, which uses family income as a factor in deciding eligibility. So for the judge to say we couldn’t use that factor — well, we just think he went too far.”Additionally, the county attorneys complained that Bryan refused to allow evidence that the county had a legitimate interest in diversity.“We don’t have a diversity policy, per se,” says Farbstein. “But our school board and superintendent are firmly committed to diversity. Forty-one percent of the county is White, 42 percent is Hispanic, 17 percent is Black, and 10 percent is Asian. But the lower court judge refused to allow any compelling evidence that we have a legitimate interest in diversity. We wanted to provide that evidence, but he said, in effect, ‘I don’t want to hear it.'”
Conflicting Opinions “The court affirmed in no uncertain terms that the process the county was using wasn’t legal and it wasn’t fair,” says Steven M. Levine, a lawyer who represented his own child and two others as plaintiffs in the case, referring to Bryan’s ruling.Dr. Robert L. Crain, an associate professor of statistics and education in the department of human development at Columbia University’s Teachers College, feels compelled to agree with part of Levine’s analysis.“The school board doesn’t have a chance if this case should get to the [U.S.] Supreme Court,” he says. “Any form of choice based on race, including what [the Arlington school board] did, is going to be considered illegal by the Supreme Court.”However, Crain doesn’t agree with Levine’s assessment about what is fair.“We have tons of information — going back more than 30 years — that in terms of later life success, going to school in a diverse classroom is beneficial for Blacks,” he says. “And Whites have less prejudice if they were schooled in diverse classrooms. In fact, Whites, Blacks, and Hispanics all demonstrate less prejudice [if they attended schools with diverse classrooms].”“We should applaud the virtues of a magnet school like [Arlington Traditional], he adds. “But whether there is a way around [the Supreme Court’s distaste for race-based choice], I don’t know.”But William Taylor, a civil rights lawyer based in Washington, D.C., believes there isn’t any need to look for a way around the U.S. Supreme Court. He calls the Bryan ruling a setback, arguing that it conflicted with the Supreme Court’s 1971 decision in Swann v. Charlotte-Mecklenberg Board of Education.“He’s hopelessly confused,” Mr. Taylor says of the judge. “At the elementary and secondary level, school districts have the right to promote diversity.”However, Donald Wadrip, founder of Houston-based Magnet Schools of America recently told The Washington Post: “It appears that the suits will do away with race-based selection. People are concerned, very much so, because some systems have been working beautifully for many, many years. The changes could be abrupt.”In response to Bryan’s rulings, the Arlington County School Board has increased the enrollment at Arlington Traditional School. By 2002, the school will have 450 students. Currently, the school is 61 percent White, 18 percent Asian, 11 percent Hispanic, and 10 percent Black.A number of school systems around the country are facing similar legal challenges. In November, a three-judge panel ended the affirmative action policies at Boston Latin School. The ruling against the city’s most prestigious public high school was the first such appeals court decision in the nation directed at the K-12 education system (see Black Issues, Dec. 10, 1998).And later this year, the U.S. 4th Circuit Court of Appeals will hear another case with vast implications for affirmative action. In that case, a White first-grader in Maryland’s Montgomery County was denied a transfer to a math and science magnet program because it would have left his neighborhood school with too few White students.
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