The "Acceptability" of Race/Gender/Sexuality-Based Discrimination in Democratic Schools

Article excerpt

Since the end of the Civil War, the U.S. Constitution has made it quite explicit that equality is central to a democratic society. As stated in the "equal protection clause" of the Fourteenth Amendment, "No state shall...deny to any person within its jurisdiction the equal protection of the laws." In the time since, the U.S. Supreme Court and Congress have extended the equal protection clause to racially marginalized groups in schools, such as by prohibiting some forms of segregation (Brown v. Board of Education, 1954) and discrimination: "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" (Civil Rights Act of 1964, Title IV). The U.S. Congress has also prohibited some forms of discrimination in schools based on gender/sex: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance" (Education Amendments of 1972, Title IX). The U.S. Congress even legislates equality in schools at the state level: "No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin" (Equal Education Opportunity Act of 1974). Legally and ideally, members of "democratic" schools should be able to enjoy equal protection of the laws and freedom from discrimination.

However, educational research has long illustrated and continues to illustrate ways in which inequities exist in schools, and ways in which many groups are not equally protected from discrimination (Kumashiro, 2000b). Research has also noted that many school personnel often seem unwilling or unable to recognize and address these inequities and forms of discrimination (Kumashiro, 2000a). Such individuals disagree with the notion that the status quo of schools is oppressive, and instead assume that it is a level playing field, neutral, and equal. They insist that attempts to establish equality -- such as affirmative action -- bestow on some in society privileges not already enjoyed by the mainstream, and thus, are antithetical to a democracy. Discrimination, according to this view, is not already in play, and results only from observable, individualized acts that deviate from the supposedly neutral norm.

The U.S. Supreme Court has complicated such definitions of discrimination in schools in at least two ways. First, along with actions, discrimination can result from inaction or the failure to act:

...recipients of federal funding [such as schools] may be liable for `subject[ing]' their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school's disciplinary authority. (Davis v. Monroe County Board of Education, 1999)

Schools can be held liable for violating federal civil rights laws if they knowingly and willfully ignore sexual harassment of one student by another. Second, the Court tells us that, along with deviations from the norm, discrimination can result from normal, everyday practices, and this can happen in at least two ways. Discriminatory practices can involve treating different groups differently, such as when requiring students from different racial groups to attend separate schools, which historically have been unequal (Brown v. Board of Education, 1954). Discriminatory practices can also involve treating different groups the same, such as when not taking affirmative steps to enable students with limited English-language proficiency to participate meaningfully in schools (Lau v. Nichols, 1974). Schools can be held liable for violating federal civil rights laws if they fail to change a status quo that itself is racially unequal. …