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Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1993 Do African-Americans Need Immersion Schools? The aP radoxes Created by Legal Conceptualization of Race and Public Education Kevin D. Brown Indiana University Maurer School of Law, [email protected] Follow this and additional works at: http://www.repository.law.indiana.edu/facpub Part of the Civil Rights and Discrimination Commons, and the Education Law Commons Recommended Citation Brown, Kevin D., "Do African-Americans Need Immersion Schools? The aP radoxes Created by Legal Conceptualization of Race and Public Education" (1993). Articles by Maurer Faculty. Paper 642. http://www.repository.law.indiana.edu/facpub/642 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education Kevin Brown* Table of Contents Introduction .......................................... 816 I. The Need for Alternative Education ..................... 821 A. The Social Construction of African-Americans in Dominant American Culture ...................... 822 1. Enculturation of Individuals in our Society .......... 822 2. The Connotations Attached to African-Americans ..... 824 3. Impact on the Level of the Individual African- American ................................... 830 B. The History of Public Education ...................... 834 1. The History of the Traditional (Assimilationist) Model of Public Education ...................... 834 2. Application of the Traditional Model of Public Education to African-Americans ............. 837 3. Why the Assimilationist Model of Public Education Does Not Work ....................... 839 a. Comparison of voluntary immigrants and involuntary minorities .................... 841 b. Cultural conflict between African-American culture and public school culture ............... 843 *Associate Professor of Law, Indiana University School of Law. B.S., 1978, Indiana University; J.D., 1982, Yale University. I would like to acknowledge and express my appreciation to many colleagues and other friends whose support and suggestions have been so valuable to this Article. Special thanks to Professors Alexander Aleinikoff, Craig Bradley, Dan Conkle, Anthony Cook, John Dayton, Don Gjerdingen, Dwight Greene, Linda Greene, Carol Greenhouse, Lynne Henderson, Douglas Laycock, David Rabbain, Lauren Robel, John Scanlan, Leland Ware, and David Williams. In addition, I would like to thankJohn Pratter. An earlier draft of this Article was delivered at the Law and Society Workshop at Indiana University in December 1991 and at the Midwestern People of Color Legal Research Conference in March 1992. I would like to thank the participants of both conferences for their helpful suggestions. I would also like to thank Krystie Herndon for her exceptional secretarial assistance. I would like to thank Scott Gilchrist, Olivia Phillips, Alex Sharma, and Glenda Alexander for their exceptional research assistance, and the Indiana University School of Law and the University of Texas School of Law for the financial support they provided for this Article. I want to also thank my extraordinary wife, Danielle Brown, for the tireless support, love, and care she provided. Finally, I would like to dedicate this Article to the memory of the late Professor Dwight Greene of Hofstra Law School. Through numerous conversations with him over the past few years, he has been an inspiration and a motivator to me. He has forced me to push myself beyond what my limits would otherwise have been. Dwight, thanks!! 78 IOWA LAW REVIEW [1993] II. Proposals for Immersion Schools ........................ 846 A. The Arguments Made by Proponents of Immersion Schools ................................ 847 B. Genesis of Immersion Schools ........................ 847 C. The Significance of Immersion Schools ................. 852 D. Purpose of Afrocentric Curriculum .................... 852 III. Legal Conceptualization of Immersion Schools and Paradoxes Created by these Conceptions .................. 857 A. The Model of Education Implied by the Law ............. 858 1. Public Schools as Academic Institutions ............. 862 2. Public Schools as Socializing Institutions ............ 865 B. Legal Conceptualizations of Challenges to Immersion Schools ................................ 867 1. Immersion Schools as Schools of Choice ............ 868 a. Establishment of immersion schools as an academic decision .......................... 868 b. Impact of allowing students to choose immersion schools .......................... 869 2. Colorblindness Analysis of Immersion Schools ........ 872 3. Immersion Schools Failing Strict Scrutiny ........... 873 a. Providing a compelling state interest ............ 874 b. Failing the narrowly tailored requirement ........ 876 4. Surviving Strict Scrutiny ........................ 877 C. Implications Resulting from United States v. Fordice for the Conception of Immersion Schools ..................... 877 Conclusion-The Paradoxes Resulting from the Legal Analysis of Immersion Schools .................... 880 Every time I think about public education,1 my own experience during the 1960s and the early 1970s is never far from my mind. I attended integrated public schools in a northern suburb of Indianapolis, Indiana from fifth grade through high school. During the early 1970s, I was one of the so-called "lucky blacks" (although many of us still considered ourselves Negroes at the time) who attended the prestigious North Central High- School. Blacks comprised approximately ten percent of the four thousand students enrolled at North Central. With the exception of the tracked courses-English literature, math, and science-my classes reflected the overall racial composition of the student body. Even though I was unaware of it at the time, many aspects of my education embodied cultural conflicts between dominant American culture and African-American culture. As a child, I accepted and believed in the underlying desegregation era assumption that only skin color differentiated blacks and whites. I recount the following incident for the purpose of highlighting the existence of a cultural conflict between dominant Ameri- can culture-which the traditional educational program incorporates-and 1. The scope of this Article is limited to elementary and secondary education. Unless otherwise noted, the terms "public school" and "public education" refer only to public elementary and secondary schools or public elementary and secondary education, respectively. PARADOXES OF LEGAL CONCEPTUALIZATION African-American culture. The incident occurred shortly after my sixteenth birthday, approximately eight weeks into the fall semester of the 1972-1973 academic year. My junior year literature class was a tracked course. The purpose of the class was to expose students to a portion of the canon of sacred literary classics that someone like Alan Bloom or E.D. Hirsch 2 thought all red- blooded Americans, regardless of hue, should read. We read many of the classic literary works including Charles Dickens's Great Expectations, William Shakespeare's Julius Caesar, and Nathaniel Hawthorne's The Scarlet Letter. I was one of two black students in a class of approximately thirty students. The teacher was a venerable lady. She was much like one would imagine a female literature instructor. Tall and slender like a willow, she had a kind countenance that confirmed genuine concern for her students. The class was about to commence reading The Adventures of Huck- leberry Finn by Mark Twain. Although my parents3 were avid readers, I was not familiar with the name Mark Twain at the time. The teacher announced that the class would read portions of Huck Finn out loud. She said something to the effect that, "Mark Twain wrote this book almost 120 years ago and used a unique writing style. I realize that some of you may be offended by the use of certain terminology in the book. I believe, however, that we must read the book the way it was written in order to get the true flavor of Mark Twain's literary style." The way she said "some of you" captured my attention. I knew through my studies in American history that my ancestors had once been held as slaves by good intentioned, albeit misguided, whites who lived in the Antebellum South. However, compassionate whites residing in the North rectified their hapless condition a century ago. The Yankees, so incensed over this flagrant breach of morality, took up arms against their own brothers to liberate my ancestors. I wondered, "If this Mark Twain wrote his book 120 years ago, what did he think of my ancestors? And, if he were alive, what would he think of me?" I quickly flipped through some of the pages of the book and my worst fears were realized. This man, this Mark Twain, had used the unforgivable insult "nigger," and his book was deemed a literary classic. Twain used the term so flippantly that it was obvious he did not consider the term an insult to me, my parents, my ancestors, or my race. At that moment, the full realization of my predicament in this classroom struck me like a left hook 2. See generally Allan Bloom, The Closing of the American Mind (1987) (discussing higher

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