Given the recent steps announced by Mayor Bill DeBlasio of New York City to increase the number of Black and Latino students at the city’s most elite public schools and the constitutional implications such a proposition brings, it might serve Brookline well to understand how it is addressing race in its own school district. Examining curriculum material on race and identity at Brookline High School, a common theme emerges: white vs. nonwhite. This article examines how attitudes of current and former teachers at Brookline High School can translate into a violation of students’ civil rights.
Local newspaper The Brookline Tab published an article last fall about “Race Reels,” a program offered to the community by Brookline High School that previews films addressing race and identity issues. Race Reels was developed in part by Abby Erdmann, a retired Brookline High School teacher. I first heard Abby Erdmann speak on public radio (WBUR) in the fall of 2016. The radio segment was about Ms. Erdmann’s experiences as a teacher at Brookline High School, and her progression into becoming the teacher of teachers on how to deal with race in the classroom. On the show, Erdmann can be heard reading from a task list on how educators can make sure all student voices are heard in the classroom: “I have number 6 being a message for privileged white kids, especially white boys, is that they’ve been taught that they’re the most important — and it’s not their fault; they’ve been taught by society, they’ve been taught by their parents, they’ve been taught by their teachers — and they’ve got to learn to listen.”
From a legal perspective, Ms. Erdmann’s statement is potentially problematic. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution generally prohibits state government from treating people differently based on their race or sex. State government includes the teachers of Brookline High School. When teachers treat students differently because they are white – or because they are boys – they may violate the Fourteenth Amendment. The U.S. Supreme Court has made clear that it does not matter whether the teacher’s intentions are good or bad; when government treats one race different than another, such treatment is presumptively invalid regardless of motivation, and can only be justified by the most compelling of reasons. One of those compelling reasons is the achievement of diversity in higher education; this is the justification for affirmative action. Labeling white children as a societal problem and constraining their class participation in an effort to ensure all voices are heard could conceivably be viewed as an effort to increase – not diversity among a student body – but diversity among student participation. The goal, however, must be broad diversification; classification based on white and nonwhite is too limited a notion of diversity to be compelling according to U.S. Supreme Court precedent.
Following Erdmann’s lead, Brookline High School staff have developed what is referred to as an “Identity Curriculum,” which is to be incorporated across departments in an effort to further the school’s mission “to cultivate students’ and faculty’s understanding of race, power, and identity as a basis for empathy, scholarship, and action.” A sample letter to faculty about the Identity Curriculum obtained from The Public Schools of Brookline Office of Teaching and Learning discusses the school’s aim to “work toward true inclusivity and empathy” through “recogniz[ing] the identities in and around us.”
In the same radio segment starring Ms. Erdmann, the reporting journalist sat in on a class offered to Brookline High School sophomores called “Race and Identity.” Brookline High teachers Malcolm Cawthorne and Kate Leslie led the class and can be heard on the segment asking the students who identify as white to stand on one side of the classroom, and students who identify as being of color to stand on the other side. Mr. Cawthorne can then be heard to say “we have asked that students who are bi- or multi-racial” to sit on the side with the students who have identified as those of color. It could simply be that forcing an identity upon multi-racial students makes the exercise easier for Mr. Cawthorne, or it could be intentional. Ms. Leslie, the other teacher leading the class, is quoted by the article as saying: “I completely believe that white people have to be involved in talking to other white people about race and racism. It’s really a white person’s problem.”
In analyzing equal protection claims, courts have distinguished between what is termed “benign” discrimination and “invidious.” Although under current U.S. Supreme Court precedent all forms of discrimination receive the same level of scrutiny regardless of motivation, there was a time when this was not so clear. Invidious discrimination was often defined by the stigmatization of a particular race. In 1977, in an effort to comply with the Voting Rights Act, the New York legislature redistricted parts of Kings County by increasing “the nonwhite majorities in certain districts in order to enhance the opportunity for election of nonwhite representatives from those districts.” Kings County includes Brooklyn, which had then and still does today a significant Hasidic Jewish population. The plan diluted the voting power of the Hasidic community, which took to the courts and challenged it as racially discriminatory. In analyzing the constitutionality of the legislature’s redistricting plan, the court determined that the “plan represented no racial slur or stigma with respect to whites or any other race,” and therefore, was not violative of the Equal Protection Clause; it was “benign” discrimination. Can the same be said for the Identity Curriculum at Brookline High School?
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You may access the WBUR radio segment discussed in this article here.
The issues discussed in this article are not limited to Brookline High School; according to the radio segment, Ms. Erdmann teaches educators across the state of Massachusetts on how to deal with race in the classroom.
The information contained herein should not be construed as legal advice or creating an attorney-client relationship. In order to receive legal advice or create an attorney-client relationship, a person must first enter a formal agreement.
Attorney Lucas Newbill 