Should we empower different groups within separated structures? Or should we strive for some mixture of these approaches? And should we constitutionalize our choice, so that it is principled, applies everywhere, and is possibly enforceable by the courts? Or should we leave the determination of these questions to individual communities and the regular play and give-and-take of politics?
From its inception, Israel has committed itself to the ideal of full political and social equality among all its citizens, irrespective of their religious or ethnic affiliations. Even The Israeli government itself concedes that it has not yet succeeded fully in meeting this ideal. In this paper, I shall not go into the fascinating and complex questions of whether Israel can foster full equality in view of its self-definition as a Jewish state and the inter-Jewish debate concerning the meaning of this term. Rather, I shall assume the wish to attain equality, and ask which is the best way to do so. More specifically, Israel is a state that on the whole went the separatist way. Recent challenges of this framework, especially in the courts, help us see the issues more clearly.
Like many other questions of principle, this question was never comprehensively debated and decided in Israel. Instead, problems were solved on an ad hoc basis, often under the heavy constraints of military and other kinds of emergency. These solutions were based on the fact that from the beginning of the Zionist settlement in Israel, and throughout the British mandate, the residential, and especially educational, arrangements for the Jewish and Arab communities, and among different types of Jewish communities, have been primarily separated. The separatist reality helped mitigate some of the immanent tensions in the way different segments of Israeli society perceive themselves within it, which are now in turn highlighted by the public challenges being made. These challenges thus help us see more dramatically some of the ambiguities in Israeli collective identity and its sense of citizenship, as well as the fragility of attempts to create a basis of civic coherence against the background of conflicted pluralism.
In a world made more aware of its multiethnicism and multiculturalism, seeking ways to accommodate these facts into political ideologies and forms of government, Israel’s predicament is widely shared. The immense volume of literature on these subjects suffices to attest to this fact. On the other hand, Israel is quite special in the combination of its rifts, and in the way these rifts combine with Israel’s history and situation in the Middle-East. Scholars of Israel can thus learn from the experience and the insight of others, and may be able to enrich them from their own vantage point.
Against this background, the choice of building such a paper around a particular test case calls for some explanation, since the disadvantages of such an approach are obvious. On the other hand, the more general approach has its own disadvantages, which I wish to avoid: It often results in generalities and principles, both evaluative and factual, which are not very helpful in the treatment of real-life situations. This is not only a problem for those with a practical mind-set, because it may well lead us as decision-makers into solutions which are not suited to the situation at hand. It may also mean that our theoretical framing of the issue is incomplete or inadequate, because important aspects of relevant situations tend to be ignored or belittled. Such a misguided framework of thought may thus affect negatively all levels of relevant discourse, possibly contaminating and impoverishing public discussion as well as the powers needed for public action.
Anyway, I will start from a case in which a policy seeking to reinforce separation in the educational system of the mixed Jewish-Arab town of Jaffa was successfully challenged in the Israeli High Court of Justice. In the first section I explain and analyze the outcome of this case against the background of Arab-Jewish relations in Israel, the structure of the educational system in Israel, and the uniqueness of Jaffa. In the second section I provide a summary reminder of some highlights in the way the United States has dealt with the segregation of blacks in the public educational system. In the third section I try to draw some lessons from the test case and the background information supplied about Israel and the United States concerning ways to approach the question of integration v. separation as modes for achieving equality.
I: Analysis of the Abu-Shamis Case
1. The case
In Spring 1996 Adam Abu-Shamis, a 4 year old Arab child living in Jaffa, had to enroll in a preschool. His parents wanted to enroll him in a Jewish public preschool in his area of residence, to which most of his friends went. The registrar refused to enroll him in the preschool of his choice, claiming that he had a choice only between an Arab preschool and a bilingual one. Under his parents’ protest, Adam was assigned to the bilingual preschool.
Adam’s mother, Alia, used to work in the Arab sector educational project of the Association of Civil Rights in Israel (ACRI). ACRI took up the case, and had a hard time ascertaining what the actual policy really was. It turned out that changes had been introduced into the policy due to developments in the patterns of enrollment in public schools in Jaffa (see below). The policy was aimed at restricting the registration of Arab children in Jewish schools through the neutral factor of preschool and kindergarten attendance. Consequently, the attempt to limit the registration of Arab children in “Jewish” preschools was a way of reducing the number of Arab children who would be eligible to register in Jewish elementary schools.
In view of these findings, ACRI took the case to court. It argued that these policies constituted illegal discrimination, and asked that Adam be registered in the school of his first choice, and that the policy of registration be made ”ethnic-blind”. As is often the case in such matters, the municipality preferred to avoid the general issue by granting petitioner’s request. Adam went to his preferred preschool, and the petition lay dormant for a year. However, the problem re-emerged a year later, when additional children were affected by the same policy. This time it was harder to solve the problem by granting all their petitions. At the end of May 1997 the High Court of Justice asked the municipality to prepare a new, nondiscriminatory set of registration guidelines. On July 15th the municipality indeed proposed such guidelines, and they became a part of the Court’s decision.
2. Some Background
a. Arabs in Israel
The last decade has seen a great development in the research of the Arab community in Israel, by both Arab and Jewish scholars. As a result, it is now possible to invoke a substantial body of scholarship that makes the factual picture clear and non-controversial, where the main debates concern analysis of the data and its interpretation.
Israel was founded in 1948 as a Jewish state, under the U.N. resolution determining that there should be two states in Mandatory Palestine: a Jewish one and a Palestinian one. Under the U.N. resolution, Arabs would have been about 40% of the population in the Jewish state. The U.N. resolution demanded, and Israel accordingly provided in its Declaration of Independence, a commitment to protect the equal rights of all under Israeli jurisdiction. Jews in Israel united in feeling that the foundation of the state was the culmination of the Zionist movement, and that this state should be a haven for all Jews persecuted for being Jewish.
During the 1948 war, Israel captured some parts of the would-be Palestinian state, and a large number of Arab residents left the area under Israeli rule. There is still some controversy on the question of how this fact came to come, but it should not concern us here. As a result, 1949 Israel had a large Jewish majority, which was increased by extensive waves of Jewish immigration which doubled the number of Jews in Israel between 1948 and 1951. In the 1950’s Israel consolidated its control over the land, removing more than 90% of it to public ownership and to the administration of the Israel Land Administration (ILA).
The Israeli population today is about 6 million (in pre 1967 Israel), of whom about 78% are Jewish, 17% Arab, the balance belonging to neither group. The Arab population is divided according to religion (Muslim: about 73%, Christian: about 16%, and Druze: a stable 9%) and way of life (urbanites, villagers, and nomads), and maintains close ties with the Palestinian community in the occupied territories. In the fifty years of Israel’s existence, hundreds of Jewish settlements of various sorts were established. In the same fifty years, the only Arab settlements founded by the state were a small number of Bedouin development towns, built to house those who were not allowed to continue their nomadic way of life. Of the Arab citizens of Israel, 85% live in all-Arab settlements, mainly villages. The level of infrastructure and industry in the Arab sector is far inferior to that in the Jewish one. And there is a significant gap between Jews and Arabs in income levels and in representation at high echelon positions within the public or the private sector.
There is some controversy regarding the attitudes of Israeli Arabs to Israel. While Smooha finds that the level of willingness to live within Israel is high and rising, Ghanem and Rouhana report a feeling of growing crisis in civic identification. These findings may in fact be consistent with each other: Israeli Arabs do concede that they are better off, in many ways, material and nonmaterial, than their brethren in the Arab countries. On the other hand, with the strengthening of political awareness and education, the feelings of exclusion and the anger at the inequality between Jews and Arabs grow.
The centrality of the Jewish-Arab rift both within Israel and in the region is not reflected, however, in its visibility or treatment by Israel and Israeli Jews. Israel’s political system is and has always been dominated by Jews, with the Arab segment of the population being left, sometimes pushed, into the periphery of the decision-making processes and public spaces in Israel. Decision-making is carried out primarily without the active participation of the Arabs, even where the decisions clearly affect their interests and needs. The Jewishness of the state of Israel is reflected in certain national symbols and institutions, such as the flag, which includes the Star of David at its center, the national anthem, which speaks of Jewish yearning for a national homeland, Jewish religious holidays; which have official status in Israel, public culture, Sabbath laws, and so on. Israel also celebrates Independence Day, and commemorates the victims of the Holocaust on Holocaust Day.
Some argue that, even without any additional features, the symbolic primacy of Jews in the characterization of the state makes Arabs in Israel second-class citizens, suffering from immanent discrimination. These voices are strengthened by the existence of the Law of Return, and by the fact that the law bans from participation in the political game parties which deny or negate the Jewish character of the State. However, in addition to these serious symbolic and expressive matters, a close study of social and legal reality discloses intricate patterns of inequality and discrimination. This is true notwithstanding the fact that there is slow but consistent progress in the quest of the Arabic citizens of Israel for equality. They now enjoy a strong and vocal representation in Israel’s Parliament, candidly expressing their national aspirations. Recently, an Arab MP was allowed into the prestigious Committee of Foreign Affairs and Security. The first Arab joined the Supreme Court last year, and a petition to the Court generated the election of the first Arab representative on the board of ILA.
A number of Israeli scholars, both Arab and Jewish, have described the predicament of the Arab citizens of Israel as involving ‘a double marginality’: On the one hand, they are not a part of Israel with its national ethos and symbols. On the other hand, they do not participate fully in the nation-building and institutional development in the Palestinian community in either the territories occupied by Israel or in the Palestinian Diaspora.
b. The Educational System in Israel
Public education systems are an extremely important vehicle for the acculturation and integration of individuals and groups into their societies. One of the important elements in the French idea of nation-building is its extensive French public school system. In Israel, however, the educational system reflects the rifted nature of society, and in fact reinforces it.The public education system in Israel has three branches: Jewish-general, Jewish-religious, and Arab. In both Jewish branches Hebrew is the language of instruction, and Arabic is used in the Arab schools. The Jewish-general and the Arab schools are governed, administratively and pedagogically, by the Ministry of Education. The public religious schools enjoy pedagogical autonomy. Arab public schools are required to teach Hebrew, as well as Jewish history and Hebrew literature. Jewish schools teach Arabic as an optional third language (after English), with no study of Arab culture or history.
Private education in Israel is almost exclusively of a religious nature. Jewish private religious education, i.e., the haredi education systems, is financed by the state, but not supervised by it. In these communities, girls and boys study in different institutions, and are taught different subjects: boys are taught almost only religious material, whereas girls learn some Jewish studies, but mainly skills having to do with housekeeping. Women are the primary breadwinners in the haredi communities. Private education in the Arab sector is mainly Christian religious. The language of instruction may be Arabic, English, or French, depending on the body running the school. The schools admit non-Christian students as well.
There is no Arab university in Israel, although there are a few in the territories, but all Jewish universities admit Arabs. However, ethnic division is very apparent in all universities,, with social activities and organizations most often defined along national, religious, and ethnic lines.
A recent study distinguishes between three main periods in the development of the frameworks of Arab education in Israel. Without following Abu-Asba’s analysis, there clearly has been some development in the status of the Arab educational system and in the attitudes of both Jews and Arabs towards it. Initially, until 1966, most of the Arab population in Israel was subjected to military rule, involving serious limitations on their freedom of movement and work. In general, this was the period in which the Arabs living in Israel were treated almost exclusively as a potential security threat, and all policies regarding them were subject to the control of the defense authorities. During that period there was no sensitivity to the special needs of Arab education, and the choice of teachers and supervisors was completely controlled by the General Security Services (GSS), to insure that no ‘subversive’ elements found their way into the public educational system. The Arab population, at this stage, was preoccupied with existential issues such as survival and land, and getting over the shock of the massive relocation in the aftermath of the 1948 war. There was consequently no serious pressure from the Arab sector concerning the level or the content of education.
While the attitude towards Arabs at this stage clearly belonged to the model of ‘control’, the possibility of integrating the Arab population into a unified public school system was never seriously discussed. The continued autonomy of the Arab system was in part the result of inertia, partly the result of the fact that there was no time then to restructure the whole educational system, and partly the result of the clear Jewish preference to continue to use their educational system as a Zionist socializing agent. In fact, there were some among the Jewish elites who toyed with the idea of assimilating the Arab population by creating a unified, integrated system of public education in Israel. Be that as it may, the systems remained separated in fact and in administrative structure. A special unit within the Ministry of Education dealt with “Education and Culture for Arabs,” but the unit’s personnel consisted only of Jews. There were also attempts, not very successful, to make Jewish teachers teach in Arab schools, primarily in order to create the presence of a core of teachers whose loyalty to the state would not be doubted.
It should be remembered that this is the period during which the legal framework of public education was established. In 1949 the law establishing mandatory education was passed, first applying only to elementary schools, and then extending from age 5 to 16. The application of this law to the Arab sector created a significant change, since the reach of the schools in that sector was far from being universal. Nonetheless, then and to this day, school attendance is enforced with less vigor in the Arab sector. More relevant to our purposes is the 1953 Public Education Law. Section 2 of this law defines the goals of public education in terms of loyalty to the Jewish People and to its aspirations. Section 4 of the same law specifies that, in non-Jewish schools, the curriculum should be adapted to the special needs of the students.
The second period is that of the 1970s and ‘80s. With some relaxation of the dominance of security issues (in the wake of the ‘67 war and the occupation by Israel of most of Palestine, plus the acceptance that Israeli Arabs have been consistently non militant and non subversive towards Israel), the educational system started looking more seriously into the question of the special content of Arab public education. Labor Minister of Education Aharon Yadlin issued a document suggesting that these needs should be accommodated, and a special committee headed by Elad Peled, which included Arab members, published a report in the same spirit. Nonetheless, this activity and awareness were slow to produce real changes.
Since the beginning of the 1980s, two related processes have occurred. On the one hand, there is more documentation of the great disparity in both achievements and budgetary allocations between the Jewish and Arab educational systems. On the other, modernization and changes within the Israeli Arab population have led to a more intense interest on their part in the quality of education received by their children.
The third stage identified by Abu-Asba relates to an attempt to change the administrative structure of the whole educational system in Israel, in a direction of growing decentralization. It was hoped that this move, combined with the growing presence of Arabs in high echelons of the Ministry of Education unit dealing with the Arab sector, will contribute to equality. But while some changes must be noted (for example, the appointment of an Arab to head that unit, the publication of regulations establishing an advisory council for Arab education, the preparation of a five-year plan for developing it, and a noticeable decrease in the involvement of the GSS in the appointment of teachers and supervisors), the general problems within the Arab educational system persist.
These problems may be classified into a number of distinct groups. First is the general quality of education in the Arab sector. While the levels of education within the Arab sector in Israel have improved considerably since 1948, the gap between them and the Jewish population is growing. In part, these differences may be due to lower allocations of resources. Such different allocations are responsible for the fact that Arab classes are on the whole larger than classes in Jewish schools, that the ratio of student-teacher and student-counselors is much higher in the Arab sector, and that the schools are less well equipped with libraries and computers than schools in the Jewish sector. The differences may also partly be related to social structures, to the importance attributed to education in the two societies, to styles of teaching (it is said that in Arab schools there is more emphasis on rote, less on critical thinking and conceptualization), and to the authority structures in schools. A second set of problems relate to the issues of ideology, culture and narrative. The Arab school system operates within a Jewish and Zionist state. As indicated above, there is a growing awareness within both populations in Israel that this is a serious issue that needs to be addressed. Nonetheless, the facts of the matter have not changed much. Arab schools are required to study under an Israeli flag, to learn Hebrew, Jewish history and Zionist literature, and to ”celebrate” Holocaust Day, Memorial Day and the Day of Independence. Jews learn next to nothing about Islam, Christianity, or the Arab culture, do not celebrate any holidays other than their own. Most Jews do not gain any serious level of fluency in Arabic. The history of the last hundred years, with the development of the Jewish-Palestinian conflict over Israel, is mainly disregarded.
In 1977, an Arab MK proposed a bill that would give the Arab educational system the same pedagogical autonomy granted by law to the Jewish public religious system. If such autonomy were to be achieved, we could expect some serious changes in the curriculum in the Arab schools, but not in the Jewish ones. But it is not likely that the proposal will be enacted. It is interesting to compare the status of the Arab educational system with that of the Jewish-religious one (PRE). The PRE system is explicitly recognized in the 1953 law asa distinct system of public education whose schools are religious by their way of life, curricula, and teachers. The PRE is governed by a special statutory board. All members are orthodox, with the exception of two representatives of the Minister of Education. Often, these representatives are also orthodox. School curricula for these schools can only be adopted with the consent of that board, and it has the power to fire educational workers for religious reasons. In contrast, the law merely opens the possibility of adaptation of the law to the needs of non-Jewish students, and authorizes the minister for education to implement such adaptations and establish commissions for this purpose. In 1996 an advisory commission for the Arab sector was established. All of its members are appointed by the Minister, with no guarantee that any of the members, or any part of them, be Arab.
It is an interesting reminder of the low visibility of Arabs in Israel that the problems of their school system are only now reaching the courts and Jewish public awareness. Israel has more experience with issues of enforced integration in the educational system within the Jewish public system. Before 1948 Jewish education in Palestine was organized within four different “streams”, all semi-private and under communal curricular control. There were two secular Jewish streams, one liberal and one Labor-oriented, in addition to the present National Religious and haredi streams. Enrollment was voluntary, and the educational system was an integral part of community life, explicitly used to promote the distinctive goals of the groups controlling the schools. At that stage, most of the new immigrants who needed Jewish education were of European origin. All this changed radically in the 1950s, with waves of immigration coming primarily from Asia and North Africa. In part, the development policies of the government sent these groups into development towns on the periphery. They were also directed into special neighborhoods within the cities, usually enjoying lower standards of living and lower-status employment. By the early 1960s, this situation developed into a combination of resentment and frustration, leading to riots. An investigation revealed that there were significant gaps between the educational achievements of the two groups, closely related to their representation in decision making forums, higher education, and high-status employment. In June 1966 a special parliamentary commission is convened to discuss elementary and high school education in Israel.
The commission concluded that the problem was serious, and that it should be addressed by a radical structural change in the educational system which will improve education overall, and will achieve better integration between various groups in the Jewish population. These conclusions were not enacted, but they were adopted as a parliamentary decision in 1968. The “reform” was implemented gradually, and affected various parts of the country in different ways. The reform consisted of two complementary elements: restructuring the internal division and the conditions of passage between the different stages of education in a way that will increase integration in the schools. The commission explained that integration was the way to achieve better education for all as well as a necessary strengthening of equality, familiarity, and solidarity between the various segments of the Jewish population in Israel.
To date, the educational reality in Israel is far from simple. Some settlements have not integrated at all (for example, moshavim, settlements in the occupied territories, and Kibbutzim have their own elementary schools. Even their regional schools tend to be pretty homogenous). In others, the picture is mixed. Where the reform was implemented and integration was enforced, and where ”weak” children form a substantial part of the classes, a variety of avoidance mechanisms by “strong” parents and groups has developed.
The courts’ position on this issue was extremely low key. Until the integration reform, courts were quite sympathetic to the attempts parents made to improve their children’s educational opportunities, such as sending them to live with relatives in a better schooling region. In the first years after the Reform was adopted, courts refused to help parents who invoked their right to choose their child’s school in order to defeat decisions aimed at integrating the middle schools. However, the experience with integration was not always a happy one, and there have been political pressures to dismantle it. While in some communities attempts at integration continue, in others the political tides go the other way. The courts continue in their usual deference, but they seem to be less supportive now of attempts at integration.
The tensions between Ashkenazi and Sephardi communities in the educational system have become serious enough for the legislature to prohibit discrimination explicitly. Nonetheless, the social reality defies this prohibition in many places. Moreover, it seems that the inequality in allocations and manpower, and the differences in achievements between the two groups and their schools, are increasing over time. The appearance of immigrants from Ethiopia, with the combination of doubts about their Jewishness and the visual obviousness of their difference, has made the issue very painful indeed. Schools and municipalities all over the country refuse to let substantial numbers of Ethiopian youngsters into their schools. The haredi schools, while financed by the state, are not supervised in any serious way. Their schools have always been separated along gender lines. Currently, they are also separated on the basis of origin.
For the purposes of this paper, it is important to repeat that from the inception of Israel, the educational systems were separated, and that the separation is the choice of all relevant communities. This separation is a social reality, and it is institutionalized in administrative structures. On the whole, laws and courts do not explicitly address these issues.
c. Jaffa
Prior to the 1948 war, Jaffa was an important urban Palestinian center, with a population of 70,000. After that war, Jaffa was ”annexed” to Tel-Aviv, the largest Jewish City. Jaffa now has a population of 50,000, 15,000 of whom are Arabs. Of these, two thirds are Muslims, and a third are Christian. These facts make Jaffa one of the mixed cities of Israel (together with Ramla, Haifa, Acre, and Jerusalem). However, Jaffa is different from the other mixed cities in that it is relatively far from Arab population centers, and does not have the kinds of possibilities for a ”holistic” existence enjoyed by Arabs in larger and more self-sufficient communities such as Nazareth or Jerusalem. In fact, it seems that the Arabs of Jaffa are weaker, on a variety of indications, than those of other parts of Israel. The Jewish population of Jaffa is also mixed, with a minority of affluent Jews living near the beach, and a majority of lower middle-class families.
Jaffa’s educational system consists of public Jewish and Arab education, and a system of private Arab church schools. Although the private schools are prestigious and expensive, preventing many Arab families from sending their children to them, it seems that the quality of education they provide is not substantially higher than that offered by the public Arab schools. Both suffer from the problems of the Arab system noted above, and are weak even when compared to other Arab schools in the country.
In recent years, and especially after the Oslo Accords, Jaffa has become the focus of another debate: Israel tried to relocate there a large number of Arab collaborators from the occupied territories. The residents of Jaffa, especially the Arab ones, resented this move and tried to reduce the number of such collaborators in their city. More specifically, Arab parents held a school strike arguing that collaborators’ children were swamping their schools. The strike ended after then Minister of Education Amnon Rubinstein promised that these children would not amount to more than 25% in any one school.
Jaffa is unique in the sense that while it maintains some administrative and municipal distinctness, it is in fact a part of the large municipality of Tel Aviv. This fact gives the Jewish population of Jaffa easy escape routes from some of the consequences of living in a mixed town, and further dilutes the possible political power of the Arab residents in making decisions concerning their lives and education.
3. Back to the Abu-Shamis Decision
The policy challenged in Abu-Shamis was the result of some of the facts and processes described above. The extreme weakness of the Arab educational system, and the growing interest of Jaffa’s Arab residents in quality education for their children, slowly generated an imbalance and instability within the Jaffa educational system. While Jewish children had no need or interest in attending Arab schools or preschools, there was a growing tendency among educated Arab families in Jaffa to seek an escape from the Arab educational system, and send their children to the Jewish schools and preschools. Preschools are usually quite small, and over the years this process meant that some Jewish preschools became popular with Arab children; when the number of Arab students increased and reached about 45 or 50 percent of the total student body, Jewish parents started to withdraw their children from the preschool, so that it eventually became an Arab preschool. In other preschools the mixture is morstable, and the preschool continues to operate as a Jewish school despite a high percentage of Arab students. Only one of the mixed preschools has a real commitment to a multicultural education, reflected in the presence of Arabic books and the celebration of Muslim and Christian holidays. But even in this preschool, as in all the others, the language of tuition is exclusively Hebrew.
Parents and authorities in Jaffa did not feel the need to do much about the preschool situation per se. Arab parents who sent their kids to the Jewish preschools knowingly made a sacrifice in terms of language and culture, in order to gain quality of education and a better fluency in Hebrew - and their decision was voluntary. When questioned, all of the Arab parents expressed a preference to send their children to an Arabic speaking school, where they would be initiated into their own culture, and would not face the social hostility generated by inter-group tensions. However, since an acceptable Arab educational framework was not available, they preferred the ”Jewish” option to the public Arab schools. Some Jewish parents did not mind, a small number even welcomed this opportunity for their youngsters to meet with Arab children. Those who objected had an easy route of escape, which did not require the busing of young children far away from their homes. Registration policy was, conveniently, blind to the affiliations of the children.
All this changed when these trends started to affect the school system. The social problem occurred only in one part of Jaffa, an area called ”the heart of Jaffa”, where most of the Arab population of the city is concentrated. The number of Arab students in the main Jewish elementary school of the region, Weitzman, rose steadily, until it got to more than 50% of the first grade at the beginning of 1997. This process led to a Jewish withdrawal, which further increased the percentage of Arab children in the school, and also to an attempt by Jewish parents to limit Arab enrollment at the school. To avoid charges of illegal discrimination on the basis of religion or ethnic origin, the attempt to limit enrollment was based on language. Similarly, the wish to avoid blatantly discriminatory criteria to limit access to the Jewish school, the policy sought to limit eligibility to Jewish schools to children who had attended Jewish preschools (since most Arab families preferred their children to go to Arabic preschools, transferring them to the Jewish school only in the first grade).
Thus, Adam Abu-Shamis discovered that he was the victim of social processes that he neither understood nor controlled. The Court prevented the implementation of the new admission policy. The new guidelines dealt only with preschools, but it was quite clear that the same rationale would be applied to all public schools, all over Israel. The result of Abu-Shamis is that Arab kids cannot be excluded from the secular part of the public education system in Israel. Furthermore, the guidelines do not give the authorities any discretion in seeking to maintain the character of a Jewish school by limiting the number of Arab youngsters who will be admitted into it. Indeed, most observers predict that within a short period, Weitzman School will have a majority of Arab students, with only the weaker Jewish population sending their children to it.
It is important to see what the Court, and the guidelines, did not do: The fact that schools are separated and distinctive in their cultural orientation was not challenged. To the contrary, the separateness and the distinctness of the systems, based on language, are emphasized. As a result, the Court did not address the question, raised by the parties, whether separated educational systems can, in principle, be equal. Also, the guidelines approved by the court do not address the question of the actual populations in the schools. While there is nothing in the guidelines that suggests hostility to integration, there is also nothing in them that suggests a commitment to it. All the guidelines affirm is that the religious, ethnic, and linguistic affiliation of children cannot determine the preschool in the residential area in which they are entitled to enroll.
The Court’s insistence thus precluded overtly discriminatory guidelines. If preferences yield an acceptable mixture-so be it. If they yield separation-that’s fine too. And note the fact that the system maintains its power to amend the consequences of parents’ choice by dealing with applications for transfer. This part of the guidelines seems neutral, but it is probably designed to help Jewish students, who find themselves ”stuck” in a mixed preschool or school to get transferred into a less integrated school.
Another interesting dimension of the guidelines (and the Court’s decision) is the fact that the two systems are identified by their language of teaching. While the linguistic element is of course significant, it clearly does not exhaust the important differences between the systems in terms of values and culture. Arab families may well agree to send their children to a school that teaches in Hebrew. It is much more difficult for them to accept that this school will be one that imparts a particularistic culture and heritage, especially when this culture and heritage are in some conflict with their own.
In short, the Court prevented the situation encountered by the petitioners. It did not address the processes and the facts that generated their problem, and expressed no position on them. Adam Abu-Shamis himself ended up outside the regular Jewish public education system, in the only Jaffa school that is open and experimental and truly bicultural. Naturally, this is a very small school. Most educated Arab families, and most Jaffa Jewish families who want their children to attend ”simple” Jewish schools, are left with the dilemma.
II: Some Lessons from the United States:
Plessy, Brown and Beyond
Many countries and cultures now face the problem of educational systems which are not integrated. In many of them, two conflicting social pressures exist: on the one hand there is a strong voice suggesting that integration is required for full equality of opportunity. On the other hand, people invoke rights to freedom of association and rights to culture and distinctness in support of continued separation. In the history of Western democracies, the most obvious such a case, with the most dramatic judicial involvement, has been that of the blacks in the United States. I will provide here an extremely sketchy description of some of the highlights of that story. The issues discussed here are still among the most charged in the United States. Inevitably, it is impossible to give even a description that will not raise controversies. The literature on these subjects is immense, from a variety of normative and disciplinary perspectives. Obviously, I am not seeking here to state a definitive version of the story. I hope, however, that my sketch can be read as a fruitful framework in which the question can be analyzed and discussed.
The story starts in postbellum America, after the 14th amendment with its commitment to equality (or equal treatment of the laws) was enacted, and after the explicit abolition of slavery. Nonetheless, the legal systems of States within the Union differed greatly, as did the social reality of blacks in the various regions. Many of the Southern states had explicit laws seeking to make commingling between whites and blacks illegal - an apartheid regime of sorts. These laws included laws requiring separate public transportation, prohibiting mixed marriages, and establishing segregated schools and universities.
Plessy was a non-white from Louisiana who refused to vacate his seat on a white-only coach, breaking a 1890 law. Among other things, Plessy argued that the 1890 law was unconstitutional (he also argued that he was not really black, since he was 90% white). The Supreme Court rejected his argument. The decision in Plessy has become a symbol: It was controversial when it was handed down, grew to be a paradigm of judicial failures, and is now having a revival of sorts. To understand the fate of this decision, we should read some extracts from the judgment of the court and from the powerful dissent.
Justice Brown, for the Court, reasoned that the 14th amendment meant to mandate civil and political equality, but was not introduced to, and could not, erase all distinctions on the basis of race, or to enforce an integration that was unwanted by either of the groups. To support this interpretation of legislative intent he invoked the practice of separation in schools, accepted in Northern states as well, and of laws prohibiting mixed marriages. Brown cautioned that not all separate arrangements would be acceptable. They must be reasonable and not offensive. But separation in public transportation seemed to him to meet these criteria. He says:
[We] consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. [The] argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. [Legislation] is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the [Constitution] cannot put them upon the same plane.
Justice Harlan, in his powerful dissent, thought all laws should be ”race-blind”. He thought there was hypocrisy in stating that the arrangement, on the face of it, was equal: it was not aimed to bar whites from black coaches, but to permit whites not to travel with blacks. For our purposes, however, it is illuminating to read how he concludes his dissent:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste there. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. [It] is, therefore, to be regretted that this high tribunal [has] reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made [in] the Dred Scott case. The present decision [will] encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the [people] had in view when they adopted the recent amendments of the [Constitution]. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races [are] indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of Law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? [We] boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations [will] not mislead any one, nor atone for the wrong this day done.
It took more than fifty years, and two world wars in which black people fought for the United States and died for it, for the Court to overrule Plessy and decide, in Brown v. Board of Education, that the doctrine of ”separate but equal” was constitutionally unacceptable. On the way, the Court decided that segregated public universities were unconstitutional. The unconstitutionality was not the result of tangible differences, but of the mere fact that the races were separated. On some occasions it decided that special arrangements were not equal, and therefore did not meet the constitutional requirements even under Plessy. In the wake of World War II, Truman and Eisenhower took steps to integrate the army, public transportation and residential patterns. The country was ready for change.
All the lower courts in the Brown cluster of cases accepted Plessy, but the court in Delaware granted the petition finding that the schools were not in fact equal. There was quite a debate in the NAACP about how to argue Brown in the Supreme Court. Some wanted to leave the Plessy decision intact, and argue that in fact the black schools in Kansas, South Carolina, Virginia and Delaware were not in fact equal to the white schools in the same communities. Others, headed by Marshall, wanted to attack Plessy directly. They wanted to argue that a segregated system cannot be equal, since the very fact of segregation prevented it from providing students with an equal educational experience and opportunity.
Chief Justice Earl Warren delivered a unanimous decision by the Court, accepting this argument. It was not an easy decision for the Court to make. It asked the parties for more data, more argument on key issues. It took two years to deliver the first part of the decision, relating to the principle, another year to come to the remedies. Warren makes a deliberate effort to explain and ju
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