Leftist hatred of selective schools still seething among British academics

The BBC has been criticised by Oxbridge academics for painting too rosy a picture of grammar schools.  In a formal complaint to the corporation, a group of 16 historians and educationalists accused it of using “manipulative rhetoric” on the subject.

With selective education a contentious political topic, the corporation has a “statutory obligation” to present it in an unbiased light, they argued.

The academics singled out a two-part BBC programme about grammar schools that aired in January, claiming it used “emotive and value-laden language …accompanied by romantic piano music” to provoke a positive response among viewers.

The programme, called The Grammar School: A Secret History, broadcast on BBC Four, was said to be “largely uncritical, factually careless and reliant upon unrepresentative personal testimony”.

Prof Richard Pring, an Oxford University research fellow who led the Nuffield Review of 14-19 education and training in 2009, was among those who complained about the documentary.

He accused it of ignoring research evidence that did not support the practice of dividing children at the age of 11.

“It gave a cosy picture of that division at a time when we have a government who wants to return to these ways, so we need to have balance in their broadcasts,” he told the Times Educational Supplement.

“If there’s going to be a reinvention of education, all possible arguments, views and recollections [must] get an airing and not just one kind. It’s these views that are shaping public opinion.”

The academics attacked other programmes too, accusing the broadcaster of displaying a general bias towards grammar schools across its channels.

The achievements of the comprehensive school system should be given a “fair crack of the whip”, they argued.

The grammar schools documentary was given three and a half stars out of five in a Daily Telegraph review that praised it for cutting through “much of the romanticised poppycock that is spoken about grammar schools as part of the never-ending education debate”.

In a response to the initial complaint from the academics, Nick Shearman, the BBC’s knowledge commissioning executive, defended the documentary as “an insightful and even-handed history of the grammar school”.

But the group made a further complaint to the BBC’s Editorial Complaints Unit, a response from which they say is 15 weeks overdue.

A BBC spokesman said: “We have written to the complainant directly to apologise for the delay.

“This matter is being dealt with, as a priority, by the BBC Editorial Complaints Unit, who will respond directly within the next seven days.”

Other academics to sign the letter of complaint included Prof Anne Edwards, the director of Oxford University’s department of education, and Diane Reay, professor of education at Cambridge University.

Boris Johnson, the London Mayor, last week added his voice to the education debate, backing a return to academic selection in state school entry.

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Public education going the way of the post office

Recent news of the United States Postal Service’s debt problems has brought the agency’s mounting business troubles back into the spotlight. Many post offices were shut down last year (20 in Missouri), as the USPS used one if its few tools to respond to changing business conditions.

This is an example of an industry where there are strong private alternatives to a government-provided service. USPS has a monopoly on first class mail, but UPS and FedEx provide consumers with many other options to meet shipping needs.

As I read James Shuls’ blog post “What is Public Education?” it occurred to me that traditional public schools and the postal service have more in common than one might expect.

Public schools and post offices obviously provide different services, but they are both trailing behind their private counterparts. These government services are highly regulated, in what I assume is an attempt to make them well-run. But the opposite is true. Under these conditions, the postal service cannot adapt to the changing marketplace as easily as UPS and FedEx. Similarly, public schools cannot respond to changing school and student needs as swiftly as private and charter schools.

The success of UPS, FedEx, charter schools, and private schools shows us that people often prefer non-government services and (gasp) receive a better product.

Traditional public schools are not always able to attract and retain the best teachers, nor can they remediate or remove the worst. Bad schools stay open when they should close. And regulations prevent students from using technology to learn at their own pace.

I am certainly no anarchist, but I am rational enough to see when markets are better than government. Businesses thrive when they are able to adapt and compete. Just as restrictive burdens on the USPS have hindered the organization’s performance, government regulations are stifling education. In Saint Louis, for example, it often takes more than 100 days to remove a low-performing teacher.

We need to take a clue from the postal service: freedom, not regulation, produces better results.

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Unbridled use of race in school admissions must be curtailed

In Fisher v. University of Texas at Austin, to be argued October 10, 2012, the US Supreme Court wades back into the affirmative action thicket, taking up the issue of the proper role, if any, of race in college admissions.

Abigail Fisher, who is white, was denied admission to University of Texas at Austin (UT-Austin) even though her academic credentials exceeded those of many admitted minority applicants. She challenged the school's use of race in selecting its incoming freshmen but lost before the US District Court for the Western District of Texas in light of the Supreme Court's 2003 ruling in Grutter v. Bollinger.

In Grutter, a divided Court held that using race as a factor (not policies tied to racial quotas or a racial point system) was justified in the name of "diversity." However, UT-Austin treats race in a different way, and gets different results, than did the admissions program Grutterupheld at the University of Michigan Law School. That is, Grutter upheld Michigan's racial preferences because the school showed that minority enrollment would have plummeted without them — an assertion itself belied by California's experience post-Proposition 209, which outlawed racial preferences in public education and employment — while UT-Austin had already achieved real diversity (beyond even that created by Michigan's preferences) with a race-neutral law that guarantees admission to anyone graduating in the top 10 percent of a Texas public high school.

A panel of the US Court of Appeals for the Fifth Circuit nevertheless affirmed the district court's ruling for the university. Judge Emilio Garza specially concurred, however, to say that while he was bound by Grutter, that decision seemed to conflict with other precedent and with the Fourteenth Amendment's Equal Protection Clause. The Fifth Circuit then voted 9-7 against rehearing the case en banc (before all judges on the court), over a sharp dissent from Chief Judge Edith Jones that emphasized how the ruling would allow states to play fast-and-loose with Grutter's narrow-tailoring requirement.

That is how the case got to the Supreme Court — where the Cato Institute filed an amicus brief supporting Fisher and arguing that the Fifth Circuit showed blind deference to UT-Austin's policy rather than utilizing the constitutionally demanded strict scrutiny test (a test mandating that a policy be struck down if it is not narrowly tailored to fit a compelling interest). Here, the Fifth Circuit explicitly declined to utilize the strict scrutiny test and evaluate the merits of the school's decision to consider race, instead assuming the institution's good faith. Under this rule, a public university's mere assertion of a diversity interest, irrespective of the university's precise circumstances or actual motivations, trumps an applicant's right to be treated as an individual rather than a racial specimen. The Fifth Circuit ignored the Supreme Court's requirement (from the 1989 case of City of Richmond v. J.A. Croson Co.) that reviewing courts must use the strict scrutiny test, where the challenged entity must demonstrate a "compelling interest" and "strong basis in evidence" for racial classifications in order to "smoke out" the illegitimate motivations that can underlie such schemes.

As the Court opined in Croson: "The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis." However, "blind deference" is the only possible characterization of the Fifth Circuit's decision to uphold UT-Austin's policy. While acknowledging that all racial classifications by government are subject to strict scrutiny, the Fifth Circuit declined to scrutinize "the merits of the University's decision" here.

Instead, the Fifth Circuit simply presumed the university's "good faith" in both choosing to discriminate among applicants based on race and implementing that choice through a "personal achievement score." A public university's mere assertion of a "diversity" interest, no matter the precise circumstances, thus trumps the applicant's right to be regarded as an individual rather than as a specimen of a particular race or ethnicity.

Grutter certainly does not compel that result. Contrary to popular belief, Grutter did not overrule the Supreme Court's settled precedent requiring a "strong basis in evidence" to support a governmental entity's use of racial classifications, even where its interest is one that the Court has recognized, in general terms, to be compelling. Absent such a showing, the Croson Court said, "there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Beyond serving to "smoke out" illegitimate motivations, a strong basis in evidence is essential to define the contours of the government's interest so as to make possible the narrow tailoring of racial preferences that is required even in the exceptional circumstances when such preferences are allowed. Only such specificity prevents general assertions of interest from being used to "justify race-based decisionmaking essentially limitless in scope and duration."

The importance of the strong-basis-in-evidence requirement is confirmed by UT-Austin's claim that its use of racial preferences was necessary to achieve a "critical mass" of underrepresented minorities. The (dubious, but accepted) evidence in Grutter demonstrated that, absent preferences, the University of Michigan Law School's minority student population would have dropped to almost nothing. However, as mentioned above, UT-Austin has achieved substantial racial diversity through its race-neutral "Top 10 Percent Law." For that reason, UT-Austin cannot demonstrate the necessity of its use of race or the scope of the preferences that it assigns to different minority groups. In reality, the UT-Austin's racial preferences have only a minimal effect on the composition of the student body, far from commensurate with the heavy toll that consideration of race exacts and hardly the "compelling" interest required to satisfy strict scrutiny.

Finally, even if UT-Austin could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, the school justifies preferences for Hispanics by pointing to the need for a "critical mass" of such students — even as it denies preferences to Asians, who comprise a smaller portion of the student body.

However, the result would be the same even if UT-Austin could demonstrate that racial references are necessary to achieve a "critical mass" of underrepresented minorities. The concept of "critical mass" is arbitrary in every respect, such that its use can be supported in every instance by manipulation of the racial groups for which a "critical mass" is sought or the level at which "critical mass" is applied. "Critical mass" is antithetical to individualized consideration and the true pluralism that is the hallmark of diversity. Far from necessary to realize any legitimate end, "critical mass" is a hindrance to achieving what Justice Anthony Kennedy called in his Grutter dissent, "the harmony and mutual respect among all citizens that our constitutional tradition has always sought."

The Supreme Court should reign in UT-Austin's unbridled use of race in admissions decisions and take an important step toward ensuring that young Americans are judged on their qualifications rather than their skin color.

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