Excerpted From: Ralph Richard Banks, The New Racial Segregation in Education, 96 New York University Law Review Online 144 (June, 2021) (90 Footnotes) (Full Document)


RalphRichardBanksThe killing of George Floyd prompted a racial reckoning throughout American society. That horrific event catalyzed a shift in consciousness, prompting policymakers and institutional leaders to recognize racial injustice throughout American society and to reconsider their role in perpetuating it.

Education is widely recognized as essential to racial progress. Black Americans have been oppressed by the denial of education, and they have fought for the opportunity to learn and achieve. But while the Supreme Court famously declared in Brown v. Board of Education that segregated education is inherently unequal, educational systems in the United States are far from fully integrated or racially equitable.

This brief Essay identifies a paradoxical and potent mechanism of contemporary racial segregation in selective secondary schools and higher education alike: the practice of allocating educational opportunity on the basis of students' prior academic achievement. The use of that admissions criterion results in schools that are segregated on the basis of academic achievement. Achievement segregation may seem innocuous, even laudable, but in fact it relegates lower-achieving students, who are disproportionately Black, to inferior educational opportunities. Achievement segregation thus functions as a racially exclusionary means of rationing access to the most sought after educational opportunities. Even aside from its racially deleterious consequences, the justifications for achievement segregation are not especially persuasive.

This Essay is organized as follows: Part I describes the centrality of education in the Black freedom struggle. Part II identifies the societal changes that have intensified achievement segregation and its racially segregative effects. Part III suggests that the most common justifications for achievement segregation either misconceive the role of education or rest on contestable empirical premises.

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This Essay has probed a paradox: while schools of all types should value academic achievement, according it primacy in the admissions process may lead to achievement segregation and, in turn, racial segregation as well. Compared to earlier eras, this dynamic is more likely and more extreme now that education has become so economically valuable. While the racially inequitable effects of achievement segregation constitute an argument against it, I have suggested in this Essay that even putting aside its racial consequences, achievement segregation may not be justifiable from a societal perspective. Secondary schools and universities alike should thus consider approaches to admissions that more equitably allocate the educational opportunities that such schools provide.

Our nation's aspiration for racial justice cannot be realized unless we provide greater educational opportunity for Black people. To do so, we need to confront difficult questions about how to allocate educational opportunity and to relinquish our reflexive embrace of established ways of doing things. Rethinking the admissions policies of selective schools--high schools and universities alike--is a good place to start.

Ralph Richard Banks, Jackson Eli Reynolds Professor of Law, Stanford Law School.