Forbidden conversations: on race, privacy, and community (a continuing conversation with John Ely on racism and democracy).

• Author: Lawrence, III, Charles R.
• Position: On Democratic Ground: New Perspectives on John Hart Ely

CONTENTS INTRODUCTION I. A STORY ABOUT TRYING TO TALK TO NEIGHBORS ABOUT SCHOOL INTEGRATION A. An Integrated Neighborhood, a Segregated School B. A Dream and a Plan C. "Nobody's Business but My Own": Talking with Friends and Neighbors and the Unspoken Subtext of Race D. Who Said It Would Be Easy? II. WHAT ARE WE AFRAID OF?: THE UNSPOKEN RACIAL TEXT OF CONTEMPORARY WHITE AND UPPER-MIDDLE-CLASS BLACK FLIGHT A. The Fear of Blackness B. The Fear of Having One's Children Treated like Black Children C. The Fear That One's Child Will Not Fully Develop Her Gifts or Will Lose the Race for Privilege D. The Fear of Loneliness in the Hard Work of Raising Children III. UNDERSTANDING AND MISUNDERSTANDING BROWN AND PIERCE: ON COMMUNITY AND PRIVACY A. Brown v. Board of Education: A Case About Public Education and Community B. Brown and Ely's Process-Defect Theory 1. Unconscious Racism Revisited 2. The False Distinction Between Participation as Process and Participation as Substance C. Pierce v. Society of Sisters: The Limits of Liberty and Equality 1. The State Action Doctrine as Process Defect 2. Forbidden Conversations as Process Defect IV. THE LONELINESS OF THE LOTTERY AND ALTERNATIVES THAT ENCOURAGE COLLECTIVE ACTION V. BEYOND A THEORY OF JUDICIAL REVIEW: WE ARE THE CONSTITUTION'S FRAMERS CONCLUSION INTRODUCTION

"Hey Chuck! You're on the school board. I need to ask you about which schools are the good ones here in D.C. We're in the market for a house. Can you recommend a good public school?" The question comes from a young colleague, a liberal Democrat who supports integration and affirmative action. His child is still less than a year old, and it strikes me as a little early to be worrying about elementary schools, but I'm not surprised. Today young urban professionals start worrying about where they will send their children to school well before their first child is conceived. Perhaps parents have always been concerned about their children's education, but my colleague knows the stakes are different now. He has read the New York Times story describing a rapidly growing industry of consultants with names like "Ivy Wise Kids" who will coach parents on how to prepare four-and five-year-olds for preschool tests and interviews. (1) He is positioning his child in a competitive market, and his choices will determine that child's future (or at least his chances to get into Harvard or Yale). What parent wouldn't use every asset at his disposal to maximize his children's options?

I answer with a list of four or five elementary schools that I assure him are as good as any private school in the city. All of them are located in white neighborhoods west of Rock Creek Park. I do not mention the school that my children attend. I know that theirs is not the school he envisions when he asks me about "good schools." For one thing, it's too black, (2) but it's much more complicated than that. There are huge silences in this apparently casual, good-natured, informational conversation between colleagues. Not really silence, but things left unsaid, which I experience as my silence. I am thinking about what the good schools look like, about what the children at the good schools look like and who their parents are. I'm thinking about the not-so-good schools in the city--there are many more than four or five of these--about the terrible schools and the children in those schools and their parents. (3) I'm thinking about what caused these conditions. Part of me is resenting my colleague's question and judging his reason for asking, but I am a parent and I understand a parent's honorable motive. I do not speak of these things because there is an unspoken agreement that we will not speak of racism and its consequences when our friends, neighbors, or colleagues must make choices about the lives of their children. If I speak of the racism that has created these conditions, I will likely be heard to call my colleague racist. I would be misunderstood, and I do not want to offend. I tell myself that I just do not have the time or energy for this complicated conversation, but I feel guilt for my silence. I am participating in the taboo against the conversations that must be had.

This article considers the subject of my silence, the relationship between the constitutional injury of racial segregation and the privatization of education. When I speak of privatization here I do not only mean the flight to private schools or the corporatization of school systems or the politics of school vouchers, (4) although these are all symptoms of the larger problem I wish to explore. The larger problem is something I call the privatization of care and concern for and conversation about the education of our children. I believe that public policymakers and individual parents increasingly think and speak about children's right to equal educational opportunity as if that project were primarily about giving parents the "liberty" to be consumers in the education market on behalf of their own children. The decisions about how to educate our children (meaning the children in our nuclear family)--where we will school them, who their classmates will be, what curriculum they will be taught--are thought of as private, and part of our constitutionally protected liberty to raise our children as we see fit. (5) When my colleague asks about a good school for his son, he is not engaging me in a conversation about what school is best for his children and mine, much less for the poor black children who live in D.C. When parents search for a good school for their children, they do not see the project as collective, as about how we will engage the political process as a community to determine what is best for all our children and see to it that they get it.

How is this privatized view of education related to the segregation of urban schools? An obvious answer is that private schools have often been a haven for whites resisting school desegregation. (6) But I want to explore a more complex story about this relationship. It is not the relatively straightforward story of Prince Edward County, a Virginia school district that closed all of its public schools from 1959 to 1964 and provided tuition grants to private white academies, (7) but the story's impact on poor black children is not entirely different. In the nation's capital, only 4.6% of the children attending public schools are white. (8) By the time they reach their senior year in high school, less than 1% of the graduating class is white. (9) More than 60% of D.C.'s public school students are eligible for free or reduced-price lunch. (10) The race and class segregation within the District is even more extreme. The schools east of the Anacostia River in Wards Seven and Eight are more than 99% black. (11) More than 90% of the school district's white elementary students go to a few schools in the white neighborhoods west of Rock Creek Park and on Capitol Hill. (12)

Just over fifty years ago Washington, D.C. schools were segregated by law. (13) In 1967, a federal court found that while the District had desegregated its schools, it had maintained segregated classrooms within its schools through a system of tracking students that perpetuated the inequalities of the old de jure system. (14) But today's segregation is not the product of intentional government decisions. Rather, it is what the courts have called de facto segregation. De facto segregation does not constitute a cognizable constitutional injury because it is caused not by actions traceable to the state (15) but by the private acts of individuals who "choose" to live in a segregated neighborhood or to send their children to a segregated school. (16) In the years immediately following Brown v. Board of Education, we spoke of de facto segregation with the understanding that despite the absence of legal injury there was still an injury in fact, an injury we could see and measure, an injury caused by our private acts, a moral injury for which we were personally and collectively responsible.

However, this lay understanding of de facto segregation has changed in recent years. We have come to think of de facto segregation not simply as the absence of judicially cognizable constitutional injury, but as the absence of any injury at all. If poor black children in Washington, D.C. are injured, it is not by their racial and economic isolation but by dysfunctional public schools. Fifty years after Brown and Bolling v. Sharpe, the word "segregation" is rarely spoken in public policy discussions or private conversations. Almost no one talks about racism, stigma, or white flight or about what whites are running from and what they are taking with them. There is a great deal of talk about the disastrous state of our public schools--in think tanks, on editorial pages, and at dinner parties where the invited guests all send their children to private schools. The Washington Post sees a bloated bureaucracy, a corrupt teachers' union, incompetent school administrators, and ineffective school board members. (17) President Bush's No Child Left Behind Act requires "standards" and "assessment" to be sure "low-performing" schools are held "accountable." (18) But no one talks about who has left whom behind. No one measures the enormous divestment in social and political capital that has accompanied white flight. No one holds accountable the parents who have fled to the manicured lawns of private schools.

This silence on the subjects of race, racism, and segregation and their relationship to the increasingly privatized view of education is the more complicated story that must be understood. It is a story of people of good will who are nonetheless responsible for the segregation of the public schools--white parents with black friends, colleagues, and neighbors who are afraid to send their children to public schools where most of the children are black, and middle-class black parents who are also...