As long as private afrocentric schools allow all students the opportunity to attend their schools on a nonracial basis, they do not violate federal civil rights laws. The constitutionality of a public school district that seeks to establish and operate an afrocentric school is a much more difficult question.
School districts that have established afrocentric schools normally have kept them formally open to any student who wishes to attend, on a racially neutral basis. Teachers and administrators are also normally selected on a racially neutral basis. Even though afrocentric schools involve conscious regard to race in establishing schools and organizing their educational programs, attendance at or employment in an afrocentric school is the result of individual choice, not government classification. School districts also continue to operate their ordinary schools. Students who do not choose to attend or are not admitted into an afrocentric school still receive a free public education.
The Supreme Court's 1995 opinion in miller v. johnson made it clear that strict scrutiny is triggered when government classifies its citizens based on their race or ethnicity. But an afrocentric school set up on a nonracial basis does not require government to classify and treat its citizens as members of a racial or ethinic group. In addition, it may be that afrocentric schools set up on a nonracial basis do not produce discriminatory effects. Therefore, the operation and establishment of an afrocentric school—on a racially neutral basis—does not necessarily trigger strict scrutiny.
There are additional reasons why strict scrutiny should not be applied to afrocentric schools. In United States v. Fordice (1992), the Supreme Court addressed the obligation of Mississippi to eradicate the vestiges of a segregated school system within the state's universities. One of the issues was the continued viability of historically black colleges that had been established as part of an earlier effort to maintain segregation. Ina concurring opinion Justice clarence thomas indicated that although Mississippi was not constitutionally required to maintain historically black colleges, there may exist sound educational justifications for operating a historically black college that is open to all on a nonracial basis. If so, the establishment of an afrocentric school could be a legitimate exercise of the school district's power to make educational judgments and not an exercise in racial discrimination warranting strict scrutiny. It should be noted, however, that no other Justice joined Thomas's opinion in Fordice and there are tensions between it and Justice sandra day o'connor'sopinion for the court.
If the decision to establish an afrocentric school triggers strict scrutiny, then the school will not likely survive a constitutional challenge. The Supreme Court has already rejected societal discrmination and the need for black students to have role models as compelling state interests. The only compelling state interest that a majority of the Justices have accepted is remedying the effects of identified racial discrimination. Even if a compelling interest could be provided, there would still be the hurdle of narrow tailoring to overcome.
Asante, Molefi Kete 1998 The Afrocentric Idea, revised and expanded edition. Philadelphia: Temple University Press.
Brown, Kevin 1993 Do African Americans Need Immersion Schools? The Paradoxes Created by the Conceptualization by Law of Race and Public Education. Iowa Law Review 78: 813–881.