Wednesday, November 27, 2013
Derek and Danielle Holley-Walker discussed the Ohio and Tulsa hair cases last week, and yesterday, blogs were buzzing about Orlando's Faith Christian Academy threat to expel a 12-year-old for having long natural hair. The student, Vanessa VanDyke (pictured left) was given one week to decide to whether cut her hair or leave Faith Christian Academy, a school that she has attended since third grade. VanDyke's hair has been long and natural all year, but recently became an issue when she complained about students bullying about her hair. School administrators turned the complaint back on the student by saying that her natural hair was a distraction that violated the school's dress code. The school dress code has the following statement about hair: “Hair must be a natural color and must not be a distraction," and cites "mohawks, shaved designs and rat tails" as prohibited hair styles. The problem with African-American natural hair is that it is just that--it is not a "style," unlike the critiques of braided and locked styles that courts have made in employment cases.
UPDATE: 12/4/2013: The school has withdrawn its threat to expel the student, but school administrators told a local tv station that it was standing by its request for the student to change her hairstyle, saying “we’re not asking her to put products in her hair or cut her hair. We’re asking her to style her hair within the guidelines according to the school handbook.”
In July, a group filed a lawsuit challenging the constitutionality of Washington's charter law. The complaint included the standard arguments about funding and uniformity, but also included the relatively unique claim that the charter school structure moved the control of those schools outside of the authority of the state superintendent, violating the constitutional provision that provides:
The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.
Wash. Const. Art. 3, § 22.
Late last week, the trial court heard oral arguments in the case. A local media outlet, Kumo News, summarized the proceeding:
The state attorney general's office, representing the people of Washington, argued the charter law enhances education in Washington and does not circumvent anything in the state Constitution or the court decisions that have clarified sections on education.
. . .
Charter school opponents, represented by Attorney Paul Lawrence, say the law passed by voters last year is unconstitutional because it interferes with the state's obligation to pay for public schools, set a uniform curriculum and establish other rules. Lawrence also argued the law takes authority granted by the Constitution away from the superintendent of public instruction and from the Legislature.
However Assistant Attorney General Dave Stolier said the charter does exactly what the Supreme Court has ordered the Legislature to do: continue to innovate and change to meet the needs of Washington children.
"There's just not enough here to overturn the voters' will in this case," Stolier said. The state is asking the court to grant a motion for summary judgment and stop the lawsuit from going forward.
Both attorneys - and a third lawyer representing the sponsors of the charter school initiative - quoted extensively from recent Supreme Court decisions on education, with a major focus on what's known as the McCleary decision, in which the court ruled that the way the state pays for education is unconstitutional.
One would assume that plaintiffs' primary concerns are the funding shifts and lack of uniformity, but as noted in my earlier posts their strongest claim may be the one in regard to the superintendent. Unlike other school financing claims, there is a technical hook here and the charter school statute seems to explicitly violate it.
The ACLU of Pennsylvania released its new report on school discipline in the state, Beyond Zero Tolerance. It found that about 10 out of school suspensions “were issued for every 100 students in the 2011–2012 school year. During 2009–2010, 1 out of every 15 students was suspended from school at least once.” Black students were “almost five times more likely to be suspended than White students,” and Latinos three times more likely than whites. African Americans with disabilities were at the highest risk, with 22 out of 100 receiving a suspension. The report's website page also includes helpful information for local communities, posting the discipline and law enforcement data for each district.
The report’s recommendations for reform were:
1. Conduct school-level and district-level reviews of out-of-school suspension as well as law enforcement referral practices. Such reviews should identify which students are most likely to be impacted as well as specific schools where the differences in suspension rates for different types of students (the “suspension gap”) is greatest. Pay special attention to disciplinary actions for broad and vague behavioral categories such as disruption, disorderly conduct, and defiant behavior. Investigate disparities, and adopt corrective measures.
2. Remove students from school only when there is a real and immediate safety threat to the school community. School removal should not be permitted for minor misbehavior (such as dress-code violations).
3. Revise district codes and school-level rules to minimize the disruption in students’ continued access to education. When students must be removed from a classroom or school, establish a learning plan for them.
Tuesday, November 26, 2013
The picture below by the Center for American Progress sums up why the pre-k bill before Congress may be one of the most important and no-brainer pieces of legislation it has considered in a while. To be honest, last month, I still thought that Arne Duncan and Nicholas Kristof were delusion when Duncan indicated he would get a bill to Congress this year and both predicted it would pass. After all, nothing more than keeping the lights on has seems to move in the Congress.
Getting a pre-k bill before Congress was a small feat, but now that it is there, passage is looking more likely (although probably not before the end of the year). Thus far, support for the bill has been bipartisan and there has been very little criticism of the substance of the bill. This could be because common core fights are sucking the air out of all other education controversies, but I doubt it. There has been some debate of the bill, but it has been largely focused on cost, not on whether pre-k is a good idea. Cost is no small road block in a Congress determined to avoid any new spending, but this bill is beginning to look like one that Congress could pass and, if necessary, figure out how to fund later, including making cuts to other programs so as to not add to the deficit. Those who follow education funding closely know that with federal education funding it is always a two step process. No Child Left Behind, for instance, promised one level of new funding for schools, but Congress later appropriated something far short of the promise.
Over the past six months, a growing number of states have either ended their virtual charter school or placed a temporary moratorium on them. Late in the summer, I posted on Chicago, Maine, and North Carolina. Shortly thereafter, Florida followed. In some instances, the impetus was low quality and negative study findings. In other instances, the impetus was outright scandal, the largest of which was in Pennsylvania and led to a federal indictment. Now, the Education Law Center is asking Pennsylvania to join the list of moratorium states. At the very least, the Center asks the state to refrain from granting new charters, citing poor performance, high student turnover, fraud, and a huge price tag. But according the the Pennsylvania Department of Education, it lacks the statutory authority to impose a moratorium. In the meantime, the Department has been denying cyber applications on a case by case basis. Last year, it denied all eight cyber charter applications. This year it has six new applications. My guess is that it will deny them as well. If it does, the moratorium would be de facto if not explicit.
Stepping back from the particular merits of cyber charters, education policy in this area unprincipled. On the one hand, cyber charters, like other charters, were ushered into these states with almost no strings attached. Now that those "chickens have come home to roost," states are taking the opposite approach and banning them altogether. Whether you are a friend or foe of cyber charters, this makes little sense. A category of schools does not go from inherently good and trustworthy to inherently bad in a matter of a few short years. The closer truth is that they are probably neither, but simply the product of poor conceived legislation. A little more thoughtfulness on the front end about how to fund them could have avoided many of these problems. Bruce Baker and Justin Bathon's recent guide is an excellent example of this thoughtfulness.
Monday, November 25, 2013
The American Association of School Administrators (AASA) has released a report detailing the unequal effects of federal budget cuts on public schools. While all schools and states have suffered cuts, the cuts have been relatively minimal in some places and enormous in others. Federal Money, for instance, only makes up 5.4% of New York State's education budget, while it makes up 24.8 in Mississippi. Yet, because much of federal money in based on poverty, there are districts within New York that are more seriously affected as well; the rest are almost entirely unaffected. In short, flat across the board cuts have very disparate effects on schools. AASA's map below shows this drastic unevenness. Interestingly, those cuts have been most heavily felt in the heart of Republican party territory, the southeast, due to its high levels of poverty. (You will notice other isolated areas of concentrated impact going west. This is due to native american populations, for which the government allots special funding.) This map also demonstrates why progressive funding of concentrated poverty should be a bi-partisan agenda in Congress, as Republican states stand to benefit the most, but it is not.
Friday,U.S. District Court Judge Ivan Lemelle ruled that the Department of Justice is entitled to monitor Louisiana's voucher program, although the details of that monitoring are yet to be determined. The judge gave the state and DOJ 60 days to agree on a process. Both sides are claiming victory in a resolution limited to monitoring.
Bobby Jindal took victory in the fact that "the judge acknowledged that data provided by the state show the program does not have a negative impact on desegregation. We are also glad the judge made clear he does not want to disrupt the scholarship program." But consistent with my most recent post on the case that this is a controversy Jindal hates to see go away, he suggested that there is an ongoing battle that he will fight, remarking ,"We will draw a hard line against allowing the federal government to control the scholarship program and handpick schools for Louisiana's children." Unfortunately for Jindal, DOJ is not suggesting anything of the sort.
DOJ, instead, is claiming victory, as minor as it may be, in the ability to monitor the program. Jocelyn Samuels, DOJ acting assistant attorney general for the civil rights division, remarked, "We are pleased that the court has supported the department's position in this matter," and added, "This should not have been controversial in the first place." Samuels last point was mine since this dispute began. Yet, given the low stakes involved in a monitoring battle, one wonders how this case made it this far.
Friday, November 22, 2013
Delineating state based education litigation into waves is inherently problematic. In school finance litigation, scholars, including myself, have sought to divide it into three, if not four, different waves. Yet all understand that the lines between the waves are fluid and, thus, we speak in waves mostly for convenience. With that caveat, charter school litigation may be entering a new wave. In the past, the most prominent and prevalent charter school litigation has been by those opposing charters and who argue that they violate state constitutional provisions. I would call that the first wave. The potential second wave--albiet a loosely connected waive--involves cases coming from an entirely different set of plaintiffs: those supporting charters and claiming that the state is inappropriately tampering with or restraining them. These cases are not entirely new, but based on this past week, they seem to be growing more prevalent and gaining more traction in the court. The growing prevalence is likely a result of the fact that charters have reached the point where they are normative rather than aberrational and individuals have, at least, a subjective settled expectation in regard to them. In support of this potential waive, I offer three cases coming decided or filed in just this past week.
Thursday, November 21, 2013
Last week, the Department of Education indicated that it is backing away from the requirement it announced just 2 months ago that low income and minority students have equal access to high quality teachers. This move and the timing of it are troubling. Civil rights leaders and scholars, including myself, had praised the Department for making equal access part of the NCLB waiver requirements. And although I had previously posited that Arne Duncan was inappropriately acting as a de facto superintendent of the United States of America School System in the conditions he was placing on school systems, equal access to teachers was one area that did not raise the same concerns because it was within the scope of existing statutory language of NCLB. The Department just had not been enforcing it and now seemed ready to do so. Backing away now only reignites concerns about the statutory authority under which Duncan is acting. His ability to change course reinforces the notion that he is not acting under statutory standards, but based on his judgement of how best to run "his" national school system.
Legalities aside, this retreat is also problematic on a policy level. In just the past week, two major studies identifying the gains associated with this access have been released. One was a Department of Education funded study showing the efficacy of encouraging top teachers to transfer to needy schools. The second was a Fordham Institute study showing the efficacy of giving the best teachers larger class enrollments. Both studies showed impressive results and only added to the mountain of research that preceded them. Why the Department would back away from existing teacher requirements in the midst of increasingly persuasive evidence on the topic is beyond me.
In 1996, the Connecticut Supreme Court issued its momentous decision in Sheff v. O'Neill, becoming the first and only state high court to hold that racial isolation in the Hartford schools violated the state constitutional right to an equal education. Finding a remedy that everyone could agree on and comply with has been the challenge of the following decade and a half. The state would agree to a set of goals one year, only to be hauled back into court a year or two later with charges of non-compliance. Progress has not be a straight line, but has occurred. This year the state appears to have met it integration goals. While full integration is far from complete there, this year's numbers are a testament to what is possible and rejoinder to those who accept segregation as a given.
The Sheff Coalition Movement released this statement this morning:
The state has released 2013-14 enrollment figures for schools and programs covered by the Sheff v. O'Neill settlement agreements. Over 19,000 students are now participating in the Hartford region's innovative two way voluntary school integration programs. This figure includes all city and suburban students attending regional magnet schools, Hartford students participating in Open Choice, and Hartford students attending regional technical and agricultural high schools.
The state has also exceeded its 2013 goal of 41% of Hartford minority children in "reduced isolation settings" (see calculation below*) - and this number includes over 38% of Hartford children now attending racially and economically integrated schools (schools that meet or are approaching the regional integration standard).
In spite of this important progress, the state is still unable to meet the growing demand for integrated school options. The Sheff Movement coalition has called for a doubling of the integration goal in the next five years.
"These enrollment figures are good news as we move into the next phase of Sheff implementation," said Elizabeth Horton Sheff, co-chair of the coalition, "It shows we have a healthy growing system and that is working. But 41% is not enough - we need to keep growing this system so all children have the ability to attend diverse schools."
Court Finds That Sub-classes Cure Flaws in D.C.'s Special Education Class Action Litigation, By Mark Weber
Ever since the Supreme Court’s decision in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), narrowly reading the “common question of law or fact” requirement of Fed. R. Civ. P. 23 so as to overturn a class certification in a Title VII case, there has been concern that class actions in education law cases might be more difficult to certify. The concern is particularly acute in special education cases, because so much of the enforcement of legal rights, both before and after congressional passage of the Individuals with Disabilities Education Act, has been through class actions. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481 (7th Cir. 2012), confirmed the fears of some advocates by relying on Wal-Mart to overturn a class decree in a case alleging that the school system failed to identify, locate and evaluate children who are potentially eligible for special education services, and failed to design and implement educational programs for them. In a rather similar case challenging the failure to follow IDEA child-find obligations requiring the school system to identify, evaluate, determine eligibility for children with disabilities, and provide transition from services from infant program services to school services, the D.C. Circuit vacated a class action decree against the D.C. public schools, relying in part on Wal-Mart and on Jamie S. DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013). The DL case read much differently from Jamie S., however. The court said that the large, combined class of all children affected by the child-find deficiencies of the public schools failed the Wal-Mart standard, but pointed out that smaller subclasses composed of children harmed by more narrowly defined practices could be permissible.
Wednesday, November 20, 2013
The Ohio Supreme Court affirmed yesterday a lower court's decision that a teacher could be fired for insubordination, thus avoiding a constiutional question of whether his teaching creationism and intelligent design in science classes imposed religious values on students. John Freshwater was a tenured high school science teacher who worked in the Mount Vernon City School District for twenty years. He had never been disciplined, even though he taught creationism and intelligent design in his eighth grade science classes, a violation of the school district's Academic Content Standards. The school board asked Freshwater to remove religious displays in his classroom such as the Ten Commandments and a poster depicting a Biblical verse above a photograph of former President George W. Bush and former Secretary of State Colin Powell in prayer. The district also warned Freshwater not to proceed with a plan to “critically examine” evolution in his science class. Freshwater ignored both dictates. Freshwater was fired in 2007 after using a Tesla Coil to make a cross on a student's arm that lasted over a week. (He denied intending to do so.) The Mount Vernon City School Board terminated Freshwater for cause because he "injected his personal religious beliefs into his plan and pattern of instructing his students that also included a religious display in his classroom," and for insubordination. Freshwater v. Mt. Vernon City Sch. Dist. Bd. of Edn., 2012-Ohio-889 (Ohio Ct. App. Mar. 5, 2012). The Ohio Supreme Court yesterday found the record supported Freshwater’s termination for insubordination in failing to comply with orders to remove religious materials from his classroom. The Court agreed that the district complied with the First Amendment by not allowing a public school teacher to “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or when he was teaching." Because the court found that good cause existed for Freshwater's termination, it declined to reach the constitutional issue of "whether Freshwater impermissibly imposed his religious beliefs in his classroom." Read Freshwater v. Mt. Vernon City School Dist. Bd. of Ed. here.
Yesterday, NPR had a story about Milliken v. Bradley, the landmark school desegregation case holding that the federal courts could not impose desegregation plans on local districts absent evidence that those districts engaged in racial discrimination. Next year will mark Milliken's 40th anniversary, and Professor Joyce Baugh (Central Michigan University), told NPR that "[t]he Detroit public school system is in dire straits, in large part because of that decision. I don't think enough people realize the impact of that case. Not just in Detroit, but across the country," Baugh said. NPR also interviewed Ray Litt, father of one of the plaintiffs and Frank Kelley, then-Michigan's attorney general. The case changed the course of school desegration policy and remains relevant as third party interests continue to play a central role in school law, as Aaron Taylor mentioned yesterday in a post about the Missouri transfer law and Derek noted in the Lousiana voucher litigation. Listen or read the transcript of the interviews on How Court's Bus Ruling Sealed Differences in Detroit Schools here.
The typical discussion about classroom size is about whether to make them smaller for disadvantaged students. A new study by the Fordham Institute asks a slightly different question and suggests a different approach: within a single school, would it help to assign more students to the best teachers and fewer to the weaker teachers. The premise of this question is consistent with prior literature that suggested that, generally, the quality of the teacher matters more the the number of students in the class (although that conclusion does not necessarily follow in regard to the most disadvantaged students). The Fordham Institutes's study concludes that schools can, in fact, maximize achievement and more efficiently marshall their resources by assigning strong teachers to larger classrooms, rather than assigning the same number of students to every teacher's classroom.
One unanswered question is what the teachers think about this.
Yesterday, DOJ withdrew its requests for an injunction of Louisiana's voucher program. Most conservatives and choice proponents immediately rejoiced and appeared ready to move on. Bobby Jindal, however, displayed either minor disappointment or an inability to accept victory graciously. My read is that he is disappointed this issue is going away and is going to try to keep it alive as best he can. The problem is that he only remaining objection is paperwork.
While DOJ is no longer seeking an injunction, it does want to continue to monitor the program to ensure it does not have segregative effects. To do so, it wants to receive data each year on the program. Data tracking, demographic shifts, and regular status conferences to review them are standard fare in desegregating districts and there really is no basis to object. One never knows to which side's advantage the facts will play, but monitoring progress and regression is absolutely necessary for courts to carry out their responsibility.
Jindal's response: "This is a typical Washington move. The updated Department of Justice request reeks of federal government intrusion that would put a tremendous burden on the state, along with parents and teachers who want to participate in school choice.” Louisiana's state superintendent also fell in line behind his governor, calling the request for data a “power grab. . . .They want to retain control over something that we believe should be in the hands of parents. . . .It is clear that they want that power.”
Given our data driven and reporting world, turning of this small data set over is unlikely to pose much, if any, additional burden on Louisiana. This sounds more like an attempt to continue the political rhetoric and disregard basic desegregation law. The troubling aspect of this case is why DOJ is taking this position now. My perspective throughout was that we had to respect the legal process in a case where existing desegregation orders were already in place and that we could not presuppose the facts. What is unclear is whether DOJ had been blocked from getting the facts initially and, thus, filed suit (but now that it has the facts believes there is no problem) or DOJ folded under political pressure. DOJ is not one to fold and mid-way into this battle had indicated that all it wanted was data. In that respect, its actions have been consistent. But if it only wanted data, why did ask for the program to be enjoined? One explanation would be litigation strategy. If in fact Louisiana was being obstinate in regard to the minor request for data, the request for injunction upped the ante and protected against the possibility that Louisiana was hiding something. Regardless, to Jindal's likely disappointment, this case is finally poised to fade away into the normal litigation progress, which only a select few will follow.
Tuesday, November 19, 2013
Case Alleging School Interfered with Protests of Mistreatment of Lesbian, Gay, Bisexual and Transgendered Students Moves Forward
Amber Hatcher, a student at Desoto County High School, filed a lawsuit against the Desoto County School Board, the Principal at her high school, and other school officials alleged that they "have engaged and are engaging in conduct which violates her First Amendment rights. In April, 2012 [Hatcher] sought to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students." Hatcher asserts that the school interfered with her ability to bring attention to the issues and that it plans to do so again this year.
In Hatcher ex rel Hatcher v. DeSoto County School Dist. Bd. of Educ,, 939 F.Supp.2d 1232 (M.D. Fla. 2013), the district court found that "[a]t least some of these proposed activities were well within the First Amendment and required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence." Thus, it denied the defendant's motion to dismiss and claims of qualified immunity.
The issue of race in public education has long been salient in Missouri. St. Louis, along with its cross-state counterpart, Kansas City, was an epicenter of the battle for desegregated schools. Through much of Missouri’s history, great pains were taken to ensure that schools were racially isolated. The state constitution mandated the racial segregation of schoolchildren until 1976, more than 20 years after the provision was rendered void by the U.S. Supreme Court in Brown v. Board of Education.
Post-Brown desegregation efforts were reluctant, resistant, and protracted. But, ultimately, they were deemed successful. In 1999, St. Louis Public Schools (SLPS) reached a settlement, which ended federal court supervision of its desegregation efforts. But while schools in St. Louis are legally desegregated, they are not integrated in any practical sense. Almost 60 years after Brown ended segregation by law, students in St. Louis attend schools that are segregated in fact. And with 89% of St. Louis public school students qualifying for free or reduced lunch, socioeconomic isolation pervades as well.
Racial and socioeconomic isolation lead to racially and socioeconomically disparate educational outcomes. As I explained in a previous writing:
Disparities among St. Louis area school districts have an undeniable racial character. Of the seven area districts with black student enrollments above 50%, all have free or reduced lunch rates of at least 60 percent, compared to only two of the 15 majority white districts. All of the majority black districts have graduation rates below the state average, compared to only one of the majority white districts. In five of the seven majority black districts, a lower proportion of graduates enter four-year colleges than the state average, compared to only four of the fifteen majority white districts. Moreover, in four of the majority black districts, the proportion of graduates immediately undertaking any post-secondary education is lower than the state average, compared to only one of the majority white districts.
Unfortunately, the suburban migration, or white-flight, that has characterized the post-WWII era, rendered integrated schools all but impossible in St. Louis and other cities. Recognizing this reality, many people advocated for desegregation plans that encompassed entire metropolitan areas, rather than individual cities only. The idea was that because of their broader scopes, metropolitan plans would minimize the effects of segregative housing patterns on school demographics and also make “flight” more difficult. However, in 1974, the U.S. Supreme Court made it difficult for federal courts to impose such plans.
In Milliken v. Bradley, 418 U.S. 717, 745 (1974), the Court held that for suburban districts to be brought into a desegregation plan, it must be shown that those districts operated segregated schools or were significantly affected by school segregation in other districts. This decision, while plausible on its face, failed to account for the effects of housing policies and practices that fostered suburban migration, segregated neighborhoods and, as a result, segregated schools. The actions of individual school boards are but a small factor in the calculus of racial isolation. But Milliken ensured that federal judges overseeing school desegregation would be severely hamstrung in their efforts to bring about actual integration. The demographics of SLPS and many other districts across the country are legacies of Milliken.
Monday, November 18, 2013
Last week, La Feria School District in Texas told Jeydon Loredo that his picture would not appear in the school's yearbook. Jeydon grew up female but identifies as male. He posed for his high school senior picture in a tuxedo. The school's rationale for excluding him was its dress code. Jeydon's mother said that officals told her that her son's picture in a tuxedo "goes against the community standards.” They further indicated that “they were a conservative school and that (outfit) wouldn’t follow the school policy as far as their dress code.” If he wanted to be included in the yearbook, he would need to wear feminine clothing.
The Southern Poverty Law Center (SPLC) came to Jeydon's defense and threatened to sue the district for violating his First Amendment, Equal Protection, and Title IX rights. After a meeting with the SPLC, the district changed its position and will include Jeydon's picture in a tuxedo in the yearbook. One wonders whether the district knew it was violating the law to begin with and thought it could get away with it or if it only came to realize the err in its ways after speaking with SPLC. Either way, this story shows a lot of education around these issues is necessary.
Last week, the Wall Street Journal reported that the state had reached a proposed settlement with parents who have placed their special needs children in private schools and are seeking tuition reimbursement. The settlement would still need to be approved by the district court. To be clear, however, the settlement is more procedural that substantive. Currently, state law requires that a state agency approve settlements/serve as the appeals agency for those families who are denied a settlement by the school district. The problem is that so many parents have placed their children in private settings, and so many appeals are before the state agency, that there is a huge backlog. As a result, the state is simply failing to process all the claims before it. This settlement would eliminate the appellate process and defer to local school district decisions, which would drastically speed up the process.
How Diversity Stole the Show at Oral Argument in Schuette v. Coalition to Defend Affirmative Action, by Scott Greytak
I was still in the early stages of using my neighbor – an apathetic marble pillar – as an armrest when Schuette’s oral argument turned into a debate over diversity in higher education. This was mostly a surprise, considering how the appeal before the Court concerned Proposal 2, a 2006 Michigan ballot-initiative-turned-constitutional-amendment that hinged on the applicability of something called the “political restructuring doctrine.”
A little background: After the U.S. Supreme Court affirmed the constitutionality of race-conscious admissions some ten years ago in the now-famous case Grutter v. Bollinger, Jennifer Gratz, the plaintiff from its companion case, started rolling the snowball for what would become Michigan’s Prop 2. The referendum, which banned racial preferences in higher education, public employment, and government contracting, was approved by Michiganders 58%-42% in 2006, only to be struck down six years later at the Sixth Circuit Court of Appeals by an 8-7 vote. The Sixth Circuit, applying the political restructuring doctrine, determined that the amendment made it unacceptably difficult for minorities to access and influence Michigan’s political process. Jennifer Gratz & Co. appealed the decision, and the final review of Schuette (pronounced “Shoe-tee”) went into motion.
Because an aggressive Schuette Court ultimately could, some argue, choose to outlaw affirmative action across the board, conversations on diversity at oral arguments were certainly possible, but were far from necessary. Nothing about Schuette speaks directly to the Supreme Court’s diversity-in-higher-education jurisprudence. A conversation about the political restructuring doctrine – interrupted every now and then by an heroic tumbleweed or two – seemed written in the stars.
Forget that plan. Though the intricacies of the doctrine would receive plenty of airtime later, the eight justices (Justice Elena Kagan was absent due to her former involvement while U.S. Solicitor General) wanted to talk diversity first. And not two minutes would go by between Chief Justice Roberts announcing Schuette and the unearthing of freshly-buried ideological hatchets. Even though, according to the first oralist – Michigan Solicitor General John Bursch – the “point [of Schuette] isn’t to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about,” right from the jump, Bursch and Justice Sonia Sotomayor picked up where the Court had left off in last term’s Fisher v. University of Texas at Austin, arguing diversity and – most attention-grabbing – the viability of race-neutral alternatives to traditional, “check the box” affirmative action policies in higher education. Suddenly the courtroom was alive with old, familiarly controversial spirits that roamed the courtroom in search of warm-bodied jurists.
Fisher, which I consider the Court’s most misunderstood decision of its 2012-2013 term, dealt directly with the novel legal conundrum of race-neutral admissions plans, namely Texas’s Top Ten Percent Plan. The decision, released this past June, has since rekindled – in that slow-burning, “Purple Rain”-type of way- the smoldering controversy of affirmative action in colleges and universities.
Because Schuette offers the conservative bloc of the Court another swing at the use of race in admissions – albeit with a much smaller strike zone than in Fisher – all three oralists managed to inconvenience their primary points of law in order to speak to the larger ideological picture: “[T]here are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways,” Bursch – the eager beaver of the three oralists – offered after only slight provocation.
“I thought that in Grutter,” Justice Sotomayor shot back, “all of the social scientists had pointed out [that] all of those efforts had failed.” In response, Bursch highlighted how the University of Michigan could in fact increase its diversity levels if it eliminated its preferences for the children of alumni, and if it attached greater value to applicants’ socioeconomic statuses. (The latter idea has caught fire recently because of its near-airtight legality – it does not explicitly consider race, making it impervious to 14th Amendment-based challenges – its political digestibility, and, perhaps, its capacity to produce more diversity than traditional affirmative action.)
And so the gusto over diversity, Grutter, and Fisher rowed on for a bit, eventually beat back by the jurisprudential boundaries of Schuette and the political restructuring doctrine. Just a skirmish, it turns out. But one that reminded us all of the deeper issues yet to be resolved.
Scott Greytak is an associate at Campinha Bacote LLC in Washington, D.C., where he provides legal analysis, policy recommendations, and commentary on the intersection of civil rights and education policy.