Because of Race: How Americans Debate Harm and Opportunity in Our Schools [NOOK Book]

FOR THIS BOOK, I have analyzed hundreds of arguments over racial discrimination in public schools that I encountered while working at the U.S. Department of Education's Office for Civil Rights (OCR) from 1999 to 2001. I participated in most of these arguments, as I investigated cases and talked on the phone to local educators, parents, and advocates, or discussed office policies and practices with my colleagues. I overheard a few arguments in a fluorescent-lit office hallway or over the wall of my cubicle; I encountered others on the pages of circulating government documents. All centered on a longstanding, still-raging debate within American education: Which opportunity denials experienced by students of color should be remedied?

It is not suprising that the debate raged at OCR. Like other OCR employees, I was paid to determine which harms to children in their daily lives in public schools "count" in federal legal terms as harms demanding remedy. What surprised me at OCR, and during data analysis post facto, was to find just how often both educators and OCR people argued that fewer harms experienced by students of color should be remedied, rather than more. I wrote this book to examine this response empirically, and to examine how debates over serving students of color exposed conflicting American analyses of opportunity denial and harm worth remedying.

OCR was created originally in 1967 to enforce Title VI of the 1964 Civil Rights Act, which outlawed discrimination "on the ground of race, color, or national origin" in federally funded programs, including K-12 and postsecondary schools. Title VI, designed to counter legally enforced segregation, stated simply that "discrimination" meant denying people opportunities because of race: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Yet applying Title VI in education was anything but simple; it got more complex as time went on. By 2000, actually determining which policies, actions, and situations inside schools and districts "denied benefits" or "excluded" participants "on the ground of race," or "discriminated" against students of color in any other way, sparked fierce debate between local communities, local educators, OCR employees, and OCR administrators. These debates revealed the same key national tension soon to be debated in the Supreme Court: determining harm "because of race" to students in the nation's schools and districts.

In June 2007, the Supreme Court decided by the narrowest of margins that two districts' race-conscious voluntary desegregation policies denied white students opportunities to enroll in their schools of choice. Citing the Equal Protection Clause of the Fourteenth Amendment and Brown v. Board of Education, four of the justices turned the focus of analysis away from whether segregated schools still harmed students of color "because of race." Instead, their plurality opinion held that these districts' voluntary efforts to desegregate harmed white students "because of race." The Court's ruling capped off several decades of legal decisions restricting even voluntary efforts to increase opportunities for students of color in the nation's school districts via desegregation. This time, while one justice's concurring opinion left the door open for some forms of "race-conscious" desegregation, four of the justices held more bluntly than usual that such methods of increasing opportunity should no longer be allowed.

In the work I participated in at OCR, we typically debated which policies and practices denied opportunities "because of race" to students of color, not white students; allegations of harms to students of color made up the majority of race complaints brought to the agency. Along with other employees in my region, I also typically debated the ongoing provision of opportunity to students inside schools and districts, rather than their one-time assignment to particular schools. Yet we, too, often spent our days embroiled in the same American arguments central to the Supreme Court case. We debated which opportunity denials experienced by students of color actually now demanded remedy, and which remedies for harm would now actually be pursued.

At the time of Title VI's inception, civil rights law clearly contained at its core a concern to remedy the denial of opportunity to "subordinate groups": people of color. The core form of racial discrimination that lawmakers conceptualized at the time was districts intentionally segregating black students from white students. Over time, Title VI was extended to cover more opportunity denials "on the ground of race" within and between schools. "Programs" came to mean any of the activities of schools, districts, or universities, or state or local agencies, that were receiving any federal financial assistance. Around 2000, OCR's Web site informed the public that Title VI covers "aids, benefits, or services" in education that included "admissions, recruitment, financial aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment, grading, vocational education, recreation, physical education, athletics, housing, and employment." The Department of Education's Title VI regulations, as printed in 1980 in the thick Code of Federal Regulations book on my desk when I was at OCR, decreed that recipients of federal financial assistance in education could not, "directly or through contractual or other arrangements, on ground of race, color, or national origin,"

"deny" students services, financial aid, or benefits provided to others under the program; "provide" services, aid, or benefits that are "different" from those provided to others, or that are provided "in a different manner"; "subject" students to "segregation or separate treatment" in the program; "restrict" students in the "enjoyment of any advantage or privilege enjoyed by others" in the program; "treat" students "differently" in determining admission or eligibility for benefits, aid, and services in the program; "deny" a student "an opportunity to participate in the program ... or afford him an opportunity to do so which is different from that afforded others under the program."

Our Title VI regulations also stated directly that people in schools, districts, and universities, and people running federally funded educational programs, could not take actions regarding students that had indirectly discriminatory effects. OCR also interpreted "racially hostile environments" in schools and districts that were "created, encouraged, accepted, tolerated, or left uncorrected" by federal funding recipients to violate Title VI.

Title VI thus covered both policies and practices in the nation's schools and districts, whether those settings were segregated or desegregated. It covered not just student assignment but also the daily provision of resources and opportunities to learn in schools and districts, and social interactions between educators and the children and families they served. As this book shows, however, applying Title VI in real schools and districts prompted and revealed heated American debates over what it actually looks like today to deny opportunity "because of race" to students of color in the nation's schools-and who, if anyone, will or should step forward to remedy such denials. These debates raged daily within OCR, too, as colleagues confronted one another over investigations of complaints or over office policy. Much OCR work also revealed that educators, parents, and advocates in schools and districts had been debating these same contemporary questions of harm and opportunity regarding students of color long before OCR became involved.

With twelve regional offices across the country and headquarters in Washington, D.C., OCR circa 2000 primarily investigated complaints of educational discrimination filed by ordinary Americans and advocacy organizations. Starting in the 1970s, OCR's mission expanded as civil rights laws outlawed discrimination in federally funded public schools and educational programs on the bases of sex, disability, and language, so we investigated complaints about discrimination on all these grounds as well as race. At the national level in 2000, OCR also provided some policy guidance to the nation's educational institutions, telling them how the agency currently interpreted civil rights law. OCR could also undertake uninvited "compliance reviews" of entire districts and universities to assess their adherence to civil rights laws, though it was rarely doing so by the time I worked at OCR. Those higher up, as I will show here, often called such work too "proactive." Still, as administrators allowed, OCR employees could also propose and even develop new policy projects to improve the analysis or remediation of particular forms of discrimination in children's educational lives. I worked on one such project, the Early Learning Project, which envisioned examining how schools and districts provided key learning opportunities to children in kindergarten through third grade. In our days in our cubicles and offices, however, we spent most of our time investigating discrimination complaints we received from ordinary Americans regarding students' and families' experiences of injustice inside schools and districts with various demographics.

All this work had very important implications. It focused attention on one crucial, hotly debated aspect of opportunity in contemporary America: opportunity provided daily to students inside schools and districts. Complaints, like some policy projects within the agency, prompted explicit arguments over which acts toward students inside schools and districts, and which educational situations, should now be called discrimination. In legal terms, such harm "on the ground of" group membership could then be deemed impermissible, and could be remedied. By requesting OCR's judgments as to which acts and situations in educational settings constituted racial "discrimination," complainants and employees alike would find themselves shackled by OCR's politicized, legal definitions of the concept. Like the Supreme Court, we were more likely to deem as beyond remedy the harms experienced by students of color than we were to actively try to remedy those harms. But Americans bringing Title VI complaints to OCR, and OCR employees responding actively to complaints or developing office policy regarding Title VI, provocatively insisted that American equality logic still required analyzing equal opportunity for students of color. More provocatively, many demanded a version of opportunity analysis crucial for our time: they demanded discussion of how racial inequality of opportunity and outcome in education are produced, in part, through the accretion of everyday experiences of opportunity denial to students of color inside schools and districts.

These analyses did not propose that policies or activities outside schools and districts were irrelevant to opportunity. Rather, they named the everyday provision of opportunity inside schools and districts as another crucial opportunity domain, and analyzed concretely how specific opportunities were provided or denied students of color. Other observers examining the cumulative denial of life opportunities to children of color today importantly urge analysis of "cumulative racial disadvantage" across policy domains, like health and housing as well as education, and even across generations. In forcing debate on everyday opportunity provision inside schools and districts, complainants to OCR and proactive employees within the agency focused their analysis on a third crucial form of contemporary harm: the accretion of unequal opportunity over children's lifetimes through the aggregation of events within schools and districts themselves.

To those who filed K-12 complaints at OCR and to many OCR employees, the everyday experiences of children in schools and districts were crucial moments that provided or denied essential opportunity. They argued that when José was repeatedly searched, suspended, and ejected from school as punishment for "defiance," it marred his chances of academic success, and that when a school's black students were harassed and the school and district adults failed to act, those students were excluded from full participation in the school community. They also argued that if security guards gave the names of Latino hall wanderers to the police as potential "gang members," this mattered for their educational and life trajectories, and that if the academic needs of entire districts' populations of English-language learners went unassessed and unaddressed, this denied them equal access to the common curriculum and decreased their chances of school success. Similarly, the Early Learning Project contended that when schools or districts denied students of color early opportunities to learn to read or compute, those were essential moments of denying educational "benefits" that had fundamental consequences for the children's futures.

Whether they were describing opportunities denied to individual children of color or examining the treatment of many children at once, all these analyses proposed that children be offered a form of what I call everyday justice: they demanded detailed attention to the moment-to-moment provision of opportunity in children's daily educational lives. They contended that specific opportunities provided on a daily basis by people in schools and districts would help constitute fair treatment; they argued that children of color should be offered everyday opportunities to learn and thrive that were equal to white children's opportunities. Particular complainants went even beyond the legal logic of Title VI in demanding everyday justice. They argued that children of color should be offered opportunities that would be ideal for any child, and that if children experienced denials of opportunity to learn and thrive in their everyday lives inside schools and districts, this denial deserved some remedy, even if no one intended this denial or the denial could not be proved legally to have occurred "because of race."

Most important, all these efforts focused on describing, in detail, specific opportunities that students of color needed daily from schools and districts in order to have an equal opportunity to succeed inside educational settings. Analysts examining the provision of opportunities by superintendents or teachers or security guards noted specific ways that these specific actors distributed opportunity unequally and insufficiently to children of color, or accepted harm to students of color in school settings of various demographics as normal and unproblematic. They argued that these particular acts by particular actors inside schools and districts contributed to unequal opportunity for students of color and unequal outcomes.

This book is about these specific demands for equal opportunity in everyday educational life and the resistance they encountered. For as I show here, both local educators and colleagues at OCR-and sometimes, I, too-routinely rebutted external or internal proposals for everyday justice with arguments that the everyday opportunity denials experienced by students and families of color did not "count" as impermissible harms, that additional opportunities for children of color were not required, or that harms could not be remedied using OCR's politicized legal tools. Hearing claims for everyday justice, both educators and OCR employees often contended that perhaps the denials claimed had not actually occurred "because of race," that such denials were not substantial enough to constitute unequal opportunity, or that local people should not be pressed to equalize opportunity for students of color in specific ways. Our work thus exposed an ongoing American battle between two opposing contemporary arguments: specified demands for equal opportunity for students of color in schools and districts, and pervasive resistance to these very demands.

(Continues...)

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Excerpted from Because of Race by Mica Pollock
Copyright © 2008 by Princeton University Press . Excerpted by permission.
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