S3 E9: Separate Schools, Separate Worlds

BRING TEASE MUSIC IN (Audioblocks - “Searching for Hope”)

THURGOOD MARSHALL AND BROWN V BOARD OF EDUCATION

REPORTER: Shortly after noon, Earl Warren, the chief justice of the United States, began to read a unanimous opinion of the Supreme Court ...

LESLIE KENDRICK: In 1954, the Supreme Court issued a decision that redefined equality in education.

REPORTER: Ruling in five cases in which five negro children sought the right to go to the same schools as white children ...

RISA GOLUBOFF: In Brown versus Board of Education, the court declared racial segregation had no place in the public school system. 

REPORTER: The court said, “separate educational facilities are inherently unequal.”

LESLIE KENDRICK: That decision opened the door to integrated schools, and was a victory for civil rights.  

RISA GOLUBOFF: But today — nearly 70 years later — educational inequities are still pervasive in our nation’s schools.

LESLIE KENDRICK: Why? And what can the law do to help?

RISA GOLUBOFF: That’s what we’re discussing in this episode of Common Law. 

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RISA GOLUBOFF: Welcome back to Common Law, a podcast from the University of Virginia School of Law. I'm Risa Goluboff, the dean.

LESLIE KENDRICK: And I'm Leslie Kendrick, the vice dean. 

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RISA GOLUBOFF: Throughout this season of Common Law, we've been exploring issues of law and equity.

LESLIE KENDRICK: In our previous episode, we talked about gender inequality on the soccer field with the director of our International Human Rights Clinic Camilo Sánchez and UVA Law student Jolena Zabel.

JOLENA ZABEL: The Women’s U.S. National Team has by far been the most successful women's team in the entire world and is looked to as a leader, and so it's really interesting and kind of a shame that they're paid and compensated so much less than the Men’s National Team. 

RISA GOLUBOFF: If you missed that episode, we hope you’ll go back and listen.

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LESLIE KENDRICK: Today, for our final episode of the season, we're sitting down with education expert and University of Virginia President Jim Ryan. He’s written extensively about equity and education and is the author of “Five Miles Away, a World Apart,” and co-author of “Educational Policy and the Law.” Before taking the reins at UVA, he also served as dean of the Harvard Graduate School of Education.

RISA GOLUBOFF: He’s also one of our own, not just a graduate of UVA Law School, but a professor and former vice dean here. Jim, thanks so much for joining us.

JIM RYAN: Leslie and Risa, it's totally my pleasure. Thanks for having me.

LESLIE KENDRICK: Jim, how did you become interested in education as your life's work and in particular equity and education?

JIM RYAN: My interest stems from my own experience, really. 

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JIM RYAN: I grew up in a small blue-collar town in Northern New Jersey and neither of my parents went to college. Um, but they were intensely interested in education. And I went to local public schools and had some teachers who took an interest in me and with their help and with my parents' encouragement, ended up going to Yale as an undergraduate and it totally changed my life. I mean, it completely changed my life, opened up doors that I didn't even know existed. And it got me thinking, even in college, why did the system work for me? I mean, I went to public schools my whole life and was a first-generation college student. And it sort of worked exactly as we would hope it would work, but I knew it was obvious to me then, and even more obvious now that the system works very imperfectly and not everyone has the same experience or the same opportunities. 

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JIM RYAN: Then when I got to law school, I went to law school thinking I would be a civil rights attorney, and realized in Constitutional Law that there were a lot of cases about education, and so I married my interest in civil rights with my interest in educational opportunity and one thing led to another and I ended up back at UVA as a law professor. And that was the field that was of interest to me. 

RISA GOLUBOFF: You taught a — I would call it a legendary class — called Schools, Race and Money, which I think married all of these interests, and introduced generations of UVA Law students to them as well. There's usually this narrative told about education in the United States in the 20th century that kind of starts and ends with Brown versus Board of Education, right? The 1954 Supreme Court ruling that treats it as kind of the watershed, that segregated schools end and all is good. But in reality, you know better than anyone, after Brown, there was massive resistance, there were protests against busing.

DALLAS SCHOOL BUSING PROTESTS - JULY 1971

PROTESTORS: No! We won’t bus! No! We won’t bus! No! We won’t bus! 

RISA GOLUBOFF: And then the work of district lines, which is something you write a lot about and talk a lot about. So why do we still largely have segregated schools in the United States more than 70 years after Brown?

JIM RYAN: We never fully integrated schools. We still have a great deal of residential segregation and most school systems assign students to neighborhood schools. So to the extent neighborhoods are segregated, schools will be segregated. So you could fix that by increasing residential integration and that's happening in some places, slowly, or you could allow students to go to schools outside of their neighborhood through school choice, or through a voluntary integration plan. Neither one is that popular. And the Supreme Court and the Parents Involved decision, made it complicated for districts that want to integrate voluntarily based on race.

PARENTS INVOLVED IN COMMUNITY SCHOOLS V. SEATTLE SCHOOL DISTRICT NO. 1 - OYEZ

CHIEF JUSTICE JOHN ROBERTS: I have the announcement in case No. 05-908, Parents Involved in Community Schools versus Seattle School District number one …

RISA GOLUBOFF: Right, this was a 2006 Supreme Court case where Seattle had allowed students to apply to schools outside of their neighborhoods, which meant that the most popular schools were often oversubscribed. And in order to determine who would get into which schools, the city used race as one factor in thinking about the racial makeup of its various schools. And a group of parents sued — “Parents Involved in Community Schools” —  saying that this was a violation of the Equal Protection Clause of the 14th Amendment. And the court ultimately agreed with them in a 5 to 4 decision.

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JUSTICE STEPHEN BREYER: In this court’s finest hour, Brown versus Board of Education challenged that history and helped to change it.

LESLIE KENDRICK: So, this is actually a clip from the dissent, delivered by Justice Stephen Breyer.

JUSTICE STEPHEN BREYER: The last half century has witnessed great strides towards racial equality. But we have not yet realized the promise of Brown. To invalidate the plans under review here is to threaten the promise of Brown. 

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JIM RYAN: Brown did not have an immediate effect. I mean, it was 10 years really before there was much action in terms of actually desegregating the schools. By that point, the demographics in a lot of urban areas had shifted and there was a lot of movement from whites, from central cities to the suburbs. So by the time school desegregation really took hold and the court became aggressive about it, in some places it was too late, because the districts themselves were either predominantly white or predominantly African American. So that then raised the question which came to the court in the 1970s: Could you integrate, could you desegregate across school district lines? 

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JIM RYAN: If you had city schools that were primarily African American and suburban schools that were primarily white, the only way to effectively integrate those schools is to cross school district lines. And the court in a case that is not nearly as well known as Brown, but just as important in some respects, Milliken versus Bradley in 1974, the court said, basically you cannot cross school district lines in order to desegregate schools. 

RISA GOLUBOFF: Right, in that case, 20 years after Brown versus Board of Education, Detroit’s public schools were still so segregated that a lower court had ordered the state to adopt a very wide-ranging desegregation plan that would have included not just the city schools, but also 53 school districts that surrounded the city. And here is what Chief Justice Warren Burger said when he delivered the 5 to 4 majority opinion.

MILLIKEN V BRADLEY - OYEZ.ORG 

CHIEF JUSTICE WARREN BURGER: To approve the remedy ordered by the court in these circumstances would impose on the 53 outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy and one based on a standard not even hinted at in Brown I or Brown II or in any holding of this court since those cases. 

JIM RYAN: That made court-ordered desegregation useless in many metropolitan areas. And I think that was the beginning of the end of meaningful school desegregation. 

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JUSTICE THURGOOD MARSHALL: The very evil that Brown was aimed at will not be cured, but will be perpetuated.

LESLIE KENDRICK: Thurgood Marshall issued a memorable dissent.

JUSTICE THURGOOD MARSHALL: We deal here with the rights of all of our children, whatever their race, they have a right to an equal start in life, to an equal opportunity to reach their full potential as citizens. The children who have been denied that right in the past deserve better than to see fences thrown up to deny them the right in the future. Our nation, I fear, will be ill-served by this court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together and understand each other.

JIM RYAN: School desegregation was never really given a chance. 

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JIM RYAN: There's this myth out there that we tried really hard to desegregate the schools, I mean, we gave it our all, but it wasn't successful. And so it's a classic example of the limits of the law. That's not actually the truth. We — if you think about the judicial system — did not give it our all. We delayed for 10 years after Brown, then got serious for a few years, and then put this enormous obstacle to desegregation.

RISA GOLUBOFF: The Milliken case both crystallized the existing segregation and it also, I think, propelled yet additional white flight, right, because it said to white families, if you move out of cities into the suburbs, you'll be protected from further desegregation.

JIM RYAN: Yeah, that's exactly right. The court — unintentionally, I think — created incentives for those who did not want to participate in school desegregation to leave central cities.

LESLIE KENDRICK: Your book “Five Miles Away, a World Apart” talks about these and other inequities and how they manifest in two schools in Richmond, Virginia — schools that are only five miles apart from each other. And you give kind of a case study of what modern segregation looks like. Could you tell us a little bit about what you found?

JIM RYAN: Yeah, it was fascinating. So I wanted to write a book about law and educational opportunity from Brown forward. And I thought it would be deadly boring if I were just talking about court cases and data and trends. So I thought, OK, I'm going to try to bring this story to life by talking about two schools, and I tried to find a suburban school and a city school that were close together in order to illustrate the divide that I think is among the most important dividing lines in education. 

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JIM RYAN: So I went down to Richmond and talked to a bunch of principals and finally landed on T.J., which is in the city of Richmond, and Freeman, which is literally five miles away in Henrico County. I spent a lot of time in the schools talking to students, talking to teachers. I didn't intend it to be, you know, a straightforward case study, but as an illustration of the broader trends that I was talking about, like, how did we get there? What does it look like now? And, you know, some of the things that you find in T.J. and in Freeman, which I think is emblematic of what you see elsewhere, is unequal resources, not necessarily absolute inequality, but unequal compared to the need of students. What you also see, and, and, — was really jarring to me — these students literally lived in completely separate worlds. Aside from sporting events, their paths never crossed. They knew very little about each other. Each time I talked to students in one school, they would say, I bet the kids in this other school have stereotypical views of us. Both sides thought that. And sometimes they did. And so it was this lack of interaction and lack of knowledge or understanding of the lives of students who went to school five miles down the road that to me was the most eye-opening.

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RISA GOLUBOFF:  There are real consequences in terms of the educational opportunities that the students in these two schools experience. Could you talk a little bit about what were those consequences? What were their prospects for college like? How did they access education compared to one another?

JIM RYAN: Yeah. What you would see in those schools, you would see in schools across the country. In schools that are under-resourced, you will see fewer AP classes, which are obviously helpful to getting into school. You'll see a higher ratio of students to counselors. And if you're talking about a student population where there are a lot of potential first-generation college students, counseling is critical. So the opportunities for higher education, along with a host of other issues, are also unequal in the schools. But it's also the case that lack of interaction means that a lot of kids come to college — whether they’re white or black or LatinX — never having experienced diversity before. That creates a lot of complications for colleges and universities, if you think about it.

LESLIE KENDRICK: We've been talking this whole season about equality and about equity. And in talking about the difference between equality and equity, somehow I find myself falling back on education as a ready example of the difference between, say, formal equality of some kind and what we might term equity. So you could imagine a system where you say, well, every school district is funded by property taxes, and that's an equal rule, right? That's a form of formal equality. The same rule applies to everybody. You could even imagine a rule that says, well, we're not going to do it that way. Every school is going to get an equal amount of resources, and that's another form of equality, but might not produce equity. So I'm curious about what inequities you see within the education system and how do you think we address them?

JIM RYAN: Honestly, you see evidence of both instincts in school policy. 

 A lot of school funding formulas will give extra weight if a school population has a certain percentage of kids on free and reduced-price lunch, or other special needs. Special education provides additional services so that students have an opportunity to receive a free, appropriate public education to use the language of the statute. 

RISA GOLUBOFF: All of which seems to point in the direction of greater resources where there’s greater need.

JIM RYAN: But at the same time, you know, you see both formal approaches to equality in school financing formulas and then you also see — and this is the unfortunate part — you see great inequities. And I think that's what you see when you look at the divide between urban and suburban schools. You know, this is a generalization, but when I say urban schools are often under-resourced, I don't mean in a formally equal way. A lot of times urban schools have more funding per pupil than the state average, but compared to the needs of their students, the funding that they're getting is often woefully short. And in fact, the funding formula that's being used is not even designed to take seriously the idea that schools that are educating a high percentage of kids who are on free and reduced-price lunch, a high percentage of kids who have difficult home circumstances, a high percentage of kids who are food-insecure, a high percentage of kids who have special needs, are going to need more funding. That often doesn't enter into the equation.

LESLIE KENDRICK: I'm curious about — in addition to school funding — what major levers you see. Whether it's housing policy or teacher training, what else do you think needs to happen, or is the most urgent in addressing these issues?

JIM RYAN: So it's much easier to answer the second question than the first in terms of what's most urgent because what's needed, I mean, there are an awful lot of things that are needed, some very basic. Making sure that teachers receive the preparation required to teach and that those teachers are in every classroom. But if you talk about most urgent, I tend to think about it in terms of what would be the best investments we could make. And there are a few. The first is universal access to pre-K. So I think one of the smartest investments this country could make is ensuring that all 4-year-olds — ideally all 3- and 4-year-olds — have access to high-quality pre-K. There are all sorts of studies that document the great return on investment. And it's not that surprising, right? I mean, in some respects, it's an illustration of ‘an ounce of prevention is worth a pound of cure.’ 

RISA GOLUBOFF: You, Jim, have been on the leading edge of the universal pre-K movement. You’ve been writing about this for more than 15 years and now it’s starting to get some political traction. The Biden administration recently included it as part of their massive “American Families Plan.”

PRESIDENT BIDEN DELIVERS FIRST ADDRESS TO A JOINT SESSION OF CONGRESS - 4/28/2021

PRESIDENT BIDEN: Research shows, when a young child goes to school — not day care — they’re far more likely to graduate from high school and go to college.

JIM RYAN: I think this is not about pedagogy per se, but in some respects it's about politics and resources. 

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JIM RYAN: The more we can do to reduce the number of schools of concentrated poverty, the better off we'll be. Those schools are incredibly difficult because students come with so many different needs that it's difficult to meet all those needs without extraordinary resources. And in this country, people who are poor don't tend to have a lot of political power. So it's really difficult politically to get a lot of traction to get those schools the resources that they need. So you have a combination of very high need and not enough resources. 

LESLIE KENDRICK: You’ve also said that you think we need to take a more “holistic” view of students. What do you mean by that?

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JIM RYAN: An awful lot of the inequality that manifests itself in school is actually caused by what's happening outside of school. How do students spend their summers? What do students do after school? And the spending that middle-income and upper-income parents devote to those activities is extraordinary and extraordinary compared to what poor families are able to do. And that has an impact on what happens in school. So thinking about the student as a child and thinking about the services — and many of these services exist already — making sure that you take a holistic view of providing a student with everything that the student needs — whether it is access to medical care, whether it's access to an afterschool program — I think that would be a really wise investment. And you're seeing that happen in some districts across the country. 

RISA GOLUBOFF: So universal pre-K, and access to services outside of school are, in your view, two worthwhile investments. What about higher education? 

JIM RYAN: Right now, you know, our country tends to be obsessed with four-year colleges. But only about a third of students who graduate from high school end up in four-year colleges. We need to be talking much more about multiple pathways for students after high school. There's been an awful lot of focus on being college-ready, very little on career-ready. And I think there's an awful lot we could do to boost enrollment in community college, to boost enrollment in post-secondary training programs that can actually start in high school. But if we just acknowledge that the majority of students who are graduating from high school today do not go to four-year colleges, but they need additional training and preparation beyond the 12th grade, I think you can have enormous benefits.

LESLIE KENDRICK: And you’ve said that the benefits of opening up community college and post-high school training programs can also sort of trickle back down, right?  

JIM RYAN: So if you start these programs in high school, it's a way of keeping students engaged because they can then see, oh, OK, if I'm in school, then that's going to prepare me to go to this program and then I'm going to be able to get a job. As opposed to sitting there thinking, like, I'm not sure I'm going to be able to go to college, and if I'm not going to go to college, I don't know why I'm sitting in a trigonometry class.

RISA GOLUBOFF: You've got your education law and policy scholar hat on, but you're also now president of a major public university. And thinking about the students holistically and their needs in school, you can't assume that all students who arrive at college have had the same preparation, had the same resources, so what does that look like from your seat as a university president? How do you make sure that when those students transition to college, they have what they need to succeed and thrive at a place like UVA?

JIM RYAN: It's a great question. One of the hopes I have for UVA is that we become known as one of the very best places for first-generation students in particular. We're blessed at UVA that UVA faculty take a real interest in students. One of the key elements to student success and student retention is having a relationship with a faculty member, which sounds simple, but sometimes that's difficult to accomplish in universities. The other is making sure that there are peer networks. Having peer mentors can be an incredible way to support students. So there's a peer network of first-generation students at UVA, which I think is incredibly effective because those students have experienced what incoming students are experiencing, and they've learned how to navigate UVA. In addition to that, I think it's providing academic support as well and making sure that students know if they need extra help, there’s a place to get it.

LESLIE KENDRICK: How about getting students into UVA and into higher education in the first place? You talked a little bit about the need for this. How is that working at UVA? What types of access programs do you have and what types of prescriptions do you have for existing institutions on that front?

JIM RYAN: So I think it's a combination of things: pipeline programs, recruiting, and financial support. And UVA has each of these components. In an ideal world, you would see pipeline programs that brings students starting in late middle school, early high school to college campuses so that they can actually familiarize themselves with this is what college looks like and that gets them starting to think, OK, well maybe this is for me, maybe I can actually do this. Then the recruitment piece is really important as well, and making sure that you're giving to counselors, to families, to students, information that is useful to them when they're making a choice about where to attend school. So I think that there are an awful lot of students — I know that there are an awful lot of students — who are qualified to attend competitive schools like UVA, that don't believe they are. That should be the easiest problem of all to fix. When you have students who are qualified, really what you need to do is to make them aware that no, absolutely you're qualified and absolutely you should attend. 

LESLIE KENDRICK: You’ve also helped ensure that those students can afford to attend, right? 

JIM RYAN: One of the things that we've done in that realm is made it clear that any student in Virginia who comes from a family earning less than $80,000 a year, will get free tuition. And any student coming from a family earning less than $30,000 a year will get free tuition, room and board.

RISA GOLUBOFF: It's all very exciting and I think it is a model for other schools, for how to bring people in, identify people, and support them.

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RISA GOLUBOFF: So we have one last question. Randall Kennedy was our first guest and he has a paper called “Racial Promised Lands,” question mark. And so he was talking about the different ways that activists, scholars, lawyers, judges have thought about what is the goal? What is the promised land? Where are we trying to get in very, very different ways. And so we've been asking all of our guests, you know, what is your promised land? 

JIM RYAN: I think the promised land in education, honestly, is a system where everyone figures out when they’re in high school or in college, what they're good at, what they like to do, and that they have an opportunity to pursue it.

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RISA GOLUBOFF: Well, this has been really an amazing conversation and we're so happy and thrilled that you took the time to have it with us. So thank you for being here, Jim.

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JIM RYAN: Oh no, it's totally my pleasure. Thank you.

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RISA GOLUBOFF: That was Jim Ryan, president of the University of Virginia, and an expert in educational equity.

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LESLIE KENDRICK: Well, that was great. And it's always wonderful to talk to Jim, but to get to talk to him about educational equity and to talk with him in the context of this season is just …

RISA GOLUBOFF: It was great.

LESLIE KENDRICK: It was just great.

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RISA GOLUBOFF: When you think about the arc from Brown versus Board of Education today, and what Jim was talking about in terms of educational opportunity and equity, you know, there's a reason he called his class “Schools, Race and Money,” right? Because there are all these complicated interactions between race and money. And Brown was about race, but Derrick Bell, who's this famous African American legal scholar and former professor, he talked about green following white and how the litigation strategy that led to Brown ended up focusing on racial desegregation, but when he thought about what did Black families in the South want, when they thought about education, they were less focused on racial desegregation and much more focused on resources and on money, and on going to good schools that was going to enable them to have success and to have educational opportunity. And I think we're still learning more, as Jim says, about what high-concentrated-poverty schools look like and why it is that it’s hard to get educational opportunity in those schools and how to get the funding and the opportunity that's necessary for students to thrive.

LESLIE KENDRICK: This leads into conversations we've had across the season about conceptions of equality or equity. You could imagine, formal equality conceptions that say no, everything has to be integrated, and that means no women's colleges and no historically Black colleges and universities, you know, what we're after is kind of formal equality and that all schools service all people. But it might be that actually, what was at the bottom of a lot of the drive for integration was, you know, twofold: one, that clearly the message of Jim Crow, the message of segregation in that context was one of inherent inequality; and two, that functionally there was resource inequality there. And so your question kind of splits apart the different components of educational inequality to think, well, what's really doing the work here? And it's interesting to think about the conflation between green and white in the history of the litigation and of the policymaking.

RISA GOLUBOFF: In the Brown litigation itself, the court really wants to get at — and the NAACP Legal Defense Fund really wants to get at — the question that you touched on a second ago: Was segregation itself inherently problematic for the equal protection clause of the Constitution? Did it stigmatize? Was it inherently suggesting inferiority? But the — I don't know if irony is the right word — but in order for them to get at that question, they stipulated away the resource inequalities. They stipulated away the material inequalities in the educational opportunities students were getting. I mean, literally in the litigation, the attorneys stipulated let's pretend that these schools are equal in every other sense and that the only difference is the racial segregation. And I think that was incredibly important because, you know, you had Plessy versus Ferguson, this 1896 case out there that said, ‘segregation isn’t inherently stigmatizing and if Black Americans feel stigmatized, that's their problem. It's not because anyone means to stigmatize them.’ So the court really needed to articulate that in fact, segregation was inherently stigmatizing. That was its purpose and its plan, and overrule Plessy. And yet it cramped the way one then thought for a long time about what was the root of the problem, because it hid that problem of unequal resources. And then of course, as Jim describes, when they come back to it 20 years later, they answer the questions in ways that make it really, really hard, to enable schools to get the resources that they need as well as enable schools to desegregate in really significant ways.

LESLIE KENDRICK: That's a really interesting history of the litigation and, you know, I'm a splitter, and I think that it is important to distinguish between concepts. And we see today in conversations about public accommodations and, for example, provision of services for gay couples from wedding vendors, these same concepts coming out about discrimination having both a component of economic harm and also a component of dignitary harm. So it’s a problem if you can't get service anywhere or in the education context, if the education being provided is not sufficiently resourced. It's also a dignitary harm to be denied service in the context of public accommodations. So, you know, I think it is really important to distinguish these aspects of discrimination, but also recognize that functionally they tangle and work together in really complex ways.

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RISA GOLUBOFF: That wraps up this episode of Common Law — and our third season. If you’d like to learn more about Jim Ryan’s work on equity in education, or the work of any of the other fantastic experts we’ve interviewed about equity and the law, visit our website, Common Law Podcast Dot Com. There, you’ll find all three seasons of our podcast, along with transcripts, resources, links to our Twitter feed and more. I’m Risa Goluboff.

LESLIE KENDRICK: And I’m Leslie Kendrick. Thanks so much for joining us this season.

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CREDITS: Do you enjoy Common Law? If so, please leave us a review on Apple Podcasts, Stitcher — or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law, and is produced by Emily Richardson-Lorente and Mary Wood.