Excerpted From: Paige Sferrazza, Separate and Unequal: Promoting Racial Equity in Public Schools in the United States and South Africa, 95 Saint John's Law Review 1101 (2021) (161 Footnotes) (Full Document)


PaigeSferrazzaOn January 24, 2022, the Supreme Court of the United States announced that it will hear two cases, against Harvard College and the University of North Carolina, which “rais[e] serious doubts about the future of affirmative action in higher education.” The plaintiff in both cases, Students for Fair Admissions, Inc. (“SFFA”), is a non-profit organization devoted to eradicating affirmative action programs nationwide. Described as the “culmination of a years-long strategy by conservative activists,” these cases represent the first affirmative action challenges to be argued before the Court's new conservative majority, where they “pose the gravest threats yet” to over forty years of judicial precedent approving the use of race as a non-determinative factor in undergraduate admissions.

The United States is divided over how and whether public schools may legally consider race when seeking equity in access to public education. Though the Supreme Court declared de jure racial segregation in public schools unconstitutional under the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education, the United States' public school system today remains “largely separate and unequal.” Students of color “are more racially and socioeconomically isolated today than at any time since data have been available,” and “nonwhite” school districts receive $23 billion less in funding than white school districts that serve the same number of students. Racially-concentrated minority schools have lower levels of academic achievement, inferior resources, higher teacher turnover rates, and less rigorous curricular opportunities. Moreover, racially isolated schools severely limit interaction between students from different backgrounds.

In attempting to remedy these disparities--which stem from the United States' slow redress of slavery, segregation, and discrimination the United States has grappled with whether institutions should explicitly consider students' race in their integration and diversity policies. In Brown, the Court analyzed racial discrimination and segregation's social effects on Black students and prohibited state practices that reinforced the inferiority of historically oppressed populations, thereby explicitly addressing remedy in relation to race. In cases immediately subsequent to Brown, the Court upheld race-conscious desegregation efforts, remedies, and public school policies, affirmatively embedding antisubordination principles into the law.

During the 1970s, in response to rising social tension and backlash to racial integration, President Nixon appointed three new Justices to the Court who were critical of Brown and supportive of a color-blind constitution. Through a series of reverse discrimination cases, this new Court “used Brown's formal equality principle to equate race-conscious government decisions that seek to develop an integrated society with the evils of de jure segregation,” leading to a “reorientation of equal protection doctrine.” Under this reorientation, the Court shifted from prohibiting government consideration of race for the purpose of eradicating “invidious” discrimination to a blanket prohibition on race-based classification--a “color blind” approach--even when such classification intended to right history's wrongs. When evaluating integration and diversity policies in these cases, the Court declined to consider the context faced by each school in question, leading some scholars to assert that the shift ultimately forbade government actors from remedying discrimination. In fact, as of one of the Court's most recent rulings on the issue in Parents Involved in Community Schools v. Seattle School District No. 1 (PIICS), four Justices, three of whom still sit on the Court today, advocated for this color-blind approach. In effect, PIICS obstructs schools from implementing policies that might both survive judicial scrutiny and address deep inequities in access to quality education across racial lines.

Similar to the United States, South Africa's history of institutionalized racism, white supremacy, and racial segregation remain entrenched in its education system: schools are sharply segregated and people of color disproportionately struggle to achieve access to quality education. Much like the U.S. Supreme Court post-Brown, the South African Constitutional Court has confronted the issue of how and whether schools may constitutionally implement diversity-enhancing initiatives and policies to increase equitable access to quality education across racial lines. Contrary to the United States' color-blind approach, the Constitutional Court has explicitly adopted a color-conscious approach rooted in reconciliation and redress.

This Note argues that the Constitutional Court's color-conscious and context-specific approach more honestly confronts the lasting inequities and disadvantages that Black communities face as a result of historical oppression. Further, this approach more readily creates real opportunities for post-segregationist schools to become inclusive of Black learners than the Supreme Court's color-blind approach. By permitting schools to affirmatively address race when evaluating educational disparities across racial-linguistic lines, and considering the specific context of each school's program and the surrounding community's needs, the Constitutional Court has empowered schools to flexibly and actively enhance equitable access to quality education for Black South Africans and non-Afrikaans speakers. However, the Constitutional Court's prioritization of inclusion and integration by approving single- or dual-medium English programs has diminished Afrikaans instruction in public schools, thereby posing a constitutional dilemma over Afrikaans-speakers' ability to receive education in their language of choice.

Part I of this Note provides a historical background of the South African apartheid system and its impact on public education, the transformative 1996 South African Constitution and South African Schools Act, and the evolution of language into a proxy for race in South African society. Part II examines recent Constitutional Court jurisprudence regarding newly implemented English-dominated language policies. Additionally, it analyzes the facts of PIICS through the lens of Constitutional Court jurisprudence, and argues that the Constitutional Court's color-conscious, context-specific approach empowers schools to increase equitable access to education. Part III first evaluates the consequences of such a view by exploring the constitutional price of equality borne by South African Afrikaans speakers and impoverished students and then parallels that reality with the inaccessibility of quality education to students experiencing poverty in the United States.

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No system is perfect, and inequalities that disparately disadvantage people of color remain entrenched in both South African and American school systems. However, by requiring schools to actively assess accessibility to education across color lines, prioritize the redress of history's wrongs when generating policy, and consistently evaluate how that policy affects social reality, the South African Constitutional Court has empowered schools to enhance equity in public education in a way that the United States' color-blind approach precludes. In doing so,

South African jurists treat South African whites as having it within themselves to find wholly curative satisfaction--as opposed to 'little comfort'--in the thought that the deprivations they suffer in consequence of race-conscious, transformation-minded measures are entailments of their own project of uplifting others--the project having become theirs by the virtue of its adoption by the political community in which they claim membership.

To enhance access to quality education for students of all ethnicities and socio-economic status, the United States must first prioritize equitable education for all, elevating redress for the nation's history of race-based oppression over color-blind equal treatment under the law.


Articles Editor, St. John's Law Review, J.D. Candidate, 2022, St. John's University School of Law; B.A., 2015, University of North Carolina at Chapel Hill.