Wednesday, November 6, 2013
Broward County, Florida, School District has taken a punitive approach to discipline in the past and the results have been racially disparate. African American students, for instance, were suspended at twice the rate of whites and at high levels of frequency. To make matters worse, the district frequently referred students to the criminal justice system, or sought its involvement. Yesterday, the school district entered in to a memorandum of understanding with various other state agencies and actors, including the police department, to reach different results. The goal is to do away with “zero tolerance,” involve the police only as a last resort, and rely on less punitive forms of discipline. The district and police have reduced their decision making process into a flow chart. As you will notice, the flowchart tries to route discipline into the no-arrest category, even in regard to student conduct violations that require consultation with the police. To avoid arrests, it asks whether, for instance, the matter could be resolved by talking with the parents or referring the students to problem solving team or a community based program. Of course, the success of this shift will not be borne out by simply producing a flow chart, but by the individuals administering it and their willingness to take these alternatives seriously. This agreement, however, is the first major step in that direction.
A couple of weeks ago, I posted on the South Carolina Supreme Court's failure to issue a final decision in the school finance case that has been on its docket since 2008. The case has been before the court so long that it reheard the case in September 2012. Based on the oral argument, three of the five justices appeared willing to rule in favor of the plaintiffs, but two others were far less certain, if not adverse. Since early this spring, I have speculated that the hold-up in a final decision was related to the Court's attempt to reach consensus. In South Carolina, consensus might be especially important.
South Carolina's Supreme Court justices are elected by the legislature. A large percentage of justices are also former legislators. And South Carolina's legislature pays less respect to its governor and its courts than most other states. In that climate and given the enormity of school finance, a supreme court justice might question how seriously its legislature would take at 3-2 decision. A legislator might say: why not stall and wait till the odds change or we appoint a new justice who sees it our way?
My suspicion that a desire for a fourth or fifth vote was holding up the opinion was confirmed this week in a public hearing before the state's judicial merit selection commission. Before the commission, the Court's chief justice, Jean Toal, acknowledged that Court was "struggling" to decide the case. Even more poignantly, she stated that cases like the school funding case “take an awfully long time to try to speak with anything like one voice.” Also tied up in the delay may be the fact that an Associate Justice, Costa Pleicones, is running to take Toals' place as chief. His primary complaint: the lag time on deciding cases. The problem is that I had initially pegged Pleicones as the Justice who might be willing to go with the majority but was openly concerned about the wisdom of intervening in school finance. In other words, while he raises a valid general point about lagging decisions, but he may very well be the 4th vote that Toal is waiting on in the school finance case. Regardless, the question is whether unanimity or near unanimity is worth the cost?
The U.S. Supreme Court certainly saw it as being of the utmost importance in Brown v. Board of Education, as well as other decisions that followed. It believed the public would never accept integration if the Court itself was divided on the issue. School finance is not desegregation, but it does strike at the core function of local government and its biggest budget item. Thus, the stakes and the contentious surrounding it cannot be discounted. From this perspective, reaching for unanimity makes sense. On the other hand, if unanimity never comes, then each day wasted on unanimity was a day the Court abdicated its responsibility. A 3-2 decision serves students far better than no decision at all. Students do have rights and the law is what the majority—even if it is just a 3-2 majority--says it is, not what a hold out judge wants the law to be.
Tuesday, November 5, 2013
DOJ Supports Texas Affirmative Action Plan on Remand and Argues Texas Still Entitled to Deference Regarding the Existence of Critical Mass
The Department of Justice filed its amicus brief in the remand in Fisher v. Texas last week. The key question on remand is whether the University of Texas's consideration of race in admissions is necessary. Bound up in that question the first time around was the level of deference that a court should afford a University in reviewing its admissions policies. The Department of Justice argues in its brief that, while the Supreme Court indicated that the lower court must independently review whether the admissions policy is narrowly tailored, the University is still entitled to "due regard" of its educational goals and how the consideration of race furthers them. In particular, the University is still entitled to a level of deference in terms of what constitutes a "critical mass" of minority students necessary to achieve the benefits of diversity. The pertinent part of DOJ's brief states:
In this supplemental brief, the United States will address the Court’s question whether “the University [is] due any deference in its decision that ‘critical mass’ has not been achieved.” Grutter used the term “critical mass” as shorthand for the point at which a university has attained sufficient diversity to achieve the educational benefits of diversity. 539 U.S. at 330. The question for this Court is therefore how it should review the University’s conclusion that it lacked sufficient diversity in 2004 and 2008 to provide the educational benefits of diversity to its students. That question entails a qualitative assessment of the educational experience the University is providing, rather than, as appellant suggests (Appellant Supp. Br. 23-24), a rote calculation of the number of minority students enrolled in the University, a number that might seem “substantial” in the abstract.
This Court should independently review the University’s determination that it lacks sufficient diversity to fully provide the educational benefits of diversity, while giving due regard to the University’s exercise of its educational judgment and expertise in reaching its conclusion. The determination that the University lacks sufficient diversity is a necessary predicate for its ultimate conclusion that it is “‘necessary’ * * * to use race to achieve the educational benefits of diversity.” Fisher, 133 S. Ct. at 2420. Because the University bears the “ultimate burden” on that question, ibid., the Court must be able to meaningfully review the University’s conclusion that it currently lacks sufficient diversity to fully provide the educational benefits of diversity. The Court should therefore verify that the University has amply supported its conclusion with concrete evidence and a reasoned explanation of why that evidence indicates that the University is not providing the educational benefits of diversity. At the same time, because the University’s assessment of such evidence rests on the application of educational expertise and judgments about the University’s institutional mission, this Court should evaluate the University’s conclusions with due regard for the multi-faceted educational assessments underlying those conclusions.
DOJ's full brief is here.
As a follow up to my post last week about the myths about poor students, I wanted to explore the practical implications of Paul Gorski’s book and the myths he addresses. Gorski is on target in laying bare our stereotypes about poor children and how stereotypes can negatively affect poor students’ educational outcomes. In reading the excerpt from his book, however, one could get the impression that, but for stereotypes and inequality of opportunity, poor students would be on par with middle income students. After all, he asserts that poor families value education as much if not more than others; poor families’ linguistics are just as complex and intellectually stimulating as middle income families’; and that poor parents are just as effective and attentive as other parents.
As an advocate of integration, the immediate question for me was: why, then, would poor students perform better in middle income schools? I doubt there are any fewer stereotypes in middle income schools. And, I doubt it is just a matter of more resources. If that that were the case, regression analysis would show integration does not matter and that, with equal resources, poor students achieve at the same level in schools with high percentages of low income students as they do in integrated schools. But regression analysis shows that socio-economic integration does matter and money alone does not cancel out certain environmental effects. (Money, of course, does matter. But it requires more than equal money to counteract disadvantage.)
The answer to this seeming quandary lies in what Gorski does not say or, rather, the nature of the claim he is making. Gorski’s arguments debunk moral and normative claims about poor families. Most obviously, he responds to the moralistic notion or judgment that poor people are lazy and deserving of their station in life. The moral aspect of the other myths is not as obvious, but there nonetheless. For instance, he debunks the notion that poor people are inattentive and ineffective parents. In other words, many think poor people are not “good” parents or do not care enough to engage with their children. What Gorski really debunks is the notion that poor people do not have the same love for their children as anyone else. Debunking moral based assessments of poor parents, however, does not debunk objective factors. We all know love is not enough. Even if poor families loved their children more than middle income families, that love will not pay high priced college tuition, buy books, provide expensive summer learning opportunities. Nor does love cancel out the educational deficit that a parent might have him or herself. Thus, debunking the moral stereotype about poor people should not be taken to mean poverty does not matter.
While being middle income does not equate with being a “good” or “loving” parent, it does correlate with a lot of other objective measures that do matter to their children’s education. It also correlates with political power and the ability to hold schools accountability in numerous ways that matter. So, middle income students show up to school with built in advantages and they attend schools that are more likely to deliver on their obligations to students. For these reasons, school integration does matter even though stereotypes about poor children are false.
The Office for Civil Rights has reached a settlement agreement with the Schenectady City School District in regard to its special education program. OCR found that the district was enrolling a disproportionate number of black and Latino students enrolled in special education. For instance, 49 percent of the students classified as emotionally disturbed were African American, while African Americans were only 35 percent of the overall student population. Twenty-three percent of students classified as learning disabled were Latino, while Latinos were only 16 percent of the overall student population.
OCR found that the disparity stemmed from the lack of standardized criteria for referring students to special education. For instance, the district did not even have Spanish language materials with which to evaluate English Language Learners, which is specifically required by federal law. OCR also found that the approach to special education identification differed from teacher to teacher and school to school. One of the more obvious problems was in regard to racially diverse classrooms, where it was often the case that teachers only referred minority students for special education. Finally, the district did not have monitoring system in place to gauge whether its special education system was working appropriately.
The settlement agreement--which OCR credited the district for actively collaborating on--calls for the district to hire an outside expert, to develop a uniform screening process, to create building level teams that manage the process, to offer continuing professional development, and to review its existing special education evaluations. The full agreement is available here.
Those familiar with special education disparities might wonder why this district drew OCR’s attention. In comparison to many other districts, the disparities are not that high. The question then is, if this district is in violation, are hundreds or thousands of others as well? Will OCR take action against them? The answer is probably not. The disparities do not appear to be the legal primary trigger here. Rather, the district’s failure to have basic procedures in place made this an easy case for OCR. The lack of procedures, of course, helps create the disparity and, thus, gives OCR a firm ground upon which to act. But when a district has the correct procedures in place, making the case for a violation becomes more difficult. Disparities alone rarely amount to a violation. In short, big win for special education students in Schenectady, but this one is unlikely to have ripple effects.
San Diego Professors Discuss Education, Colonization and the Law: Native American History in San Diego
In recognition of Native American heritage month, two California scholars discussed yesterday the legacy of American education’s suppression of native culture and religion. Professors Michael Connolly Miskwish, (San Diego State) and Bryan Wildenthal (Thomas Jefferson) discussed Education, Colonization and the Law: Native American History in San Diego on KPBS Radio. Listen to the broadcast here.
Monday, November 4, 2013
A new decision, Petrella v. Kansas, is out in the Kansas school finance litigation. The litigation has proceeded on dual tracks for some time. Adequacy claims have been litigated in the state court system, while other claims have proceeded in federal court. The state has sought to combine the litigation on various instances, but the courts have declined. The plaintiffs have been very careful in crafting their claims so as to prevent this consolidation.
This new decision is an attempt to undermine the earlier state litigation that had resulted in a liability find against the state. The state responded with a remedy that, among other things, included a cap on the funds that local districts could raise to support local education, with the theory being that this would further equity. A group of parents from a wealthier district then challenged that litigation in federal court arguing it violated various federal constitutional rights, including their fundamental right to direct and control the upbringing of their children. The district court previously dismissed their case for lack of standing, only to be reversed by the 10th Circuit Court of Appeals. The 10th Circuit remanded and, last week, the district court issued its opinion addressing the legal theories in the case.
The Court held that the funding cap did not infringe on the parents’ fundamental rights. Those parents still have the right to control their children’s education as they see fit. For instance, they are free to withdraw their children from public school if they wish. The Supreme Court precedent creates a relatively narrow right and plaintiffs attempted to apply it far too broadly. In fact, if school funding remedies were deemed to impinge on parents’ fundamental right to control the upbringing of their children, almost every aspect of educational policy might do the same. The court also emphasized the Supreme Court’s holding in San Antonio v. Rodriguez, which had rejected school finance challenges as violating a fundamental right to education. The district court perceived the instant case as an ill-advised attempt to circumvent the more relevant holding and rationale in Rodriguez.
Finding no fundamental right, however, only rules out the application of strict scrutiny. The court found that the plaintiffs had still plead a case of unequal treatment, which was subject to rational basis review. The state had asked that the case be dismissed entirely, but the court found that the question of whether the state had a rational basis for it funding structure was not yet resolved and, thus, the case could proceed on this question. The court did, however, dismiss all the plaintiffs’ other claims.
As to the immediate school funding issues in Kansas, this decision is positive. It prevents third parties (ie, wealthy districts) from trying to impede school finance reform. On the broader horizon, I would note that there is/should be room to still bring certain narrow claims in federal court. For instance, if educational is a fundamental right under state law or students have a constitutional right to education under state law, federal equal protection should attach to that right. In other words, a state cannot extend fundamental or constitutional rights to students and then treat them unequally in regard to that right. Moreover, strict scrutiny should apply to that inequality. Often, the federal review would be applicative of bringing a state claim and, thus, would serve little purpose. But in those instances where state courts backtrack from enforcing rights or state legislatures refuse to comply, a federal claim would offer some benefit. The instant case does not directly implicate those types of claims, but it does amount to another case rejecting a Rodriguez work-around, which is implicitly problematic for my theory.
More on this school finance theory here.
The Virginia Supreme has overturned a jury's damages award for Virginia Tech arising out of the campus shooting that occurred on April 16, 2007 and took the lives of 30 people. Last, year a jury had found that the University was negligent and awarded $4-million to each of the victims’ families. That amount was then reduced to $100,000, as required by a state cap on damages against the state. The primary thrust of the plaintiffs’ argument was that after learning of the first shooting, if Virginia Tech officials had issued a warning sooner, the subsequent victims would have taken precautions, such as altering their schedules, staying in place, etc. In a unanimous decision, the Supreme Court disagreed reasoning that the school officials could not reasonably have foreseen that a second set of shootings would occur and, thus, they had no duty to warn the campus. The court wrote: "Based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others. . . . Thus, as a matter of law, the commonwealth did not have a duty to protect students." The full opinion is available here.
Friday, November 1, 2013
Two years after passing a sweeping anti-immigrant bill, Alabama is relenting. The bill had wide-ranging impacts on immigrant communities (and those interacting with them) that touched on almost every aspect of their lives. Some may recall that the bill included a measure that required schools to verify the immigration status of newly enrolled K-12 students. The day after the bill went into effect, news reports indicated that scores of Latino students, in particular, went missing from school. This included students who were, in fact, citizens or were legally in the country. I never caught news of these students returning. Alabama apparently achieved its presumed purpose: to encourage these families to leave the state. I imagine that few of those uprooted families have intentions of returning to Alabama, but the settlement agreement negotiated by the Southern Poverty Law Center and other civil rights group with the state protects them if they do. The state has agreed to permanently abandon this and other aspects of the bill. See here for more details.
Finally, school voucher news that is not about Louisiana's fight with DOJ surfaces. This time it is a new development in the Southern Poverty Law Center's suit against Alabama. Late this summer, SPLC alleged that the Alabama Accountability Act, which allowed students to transfer out of failing districts and enroll in private schools and receive tax credits, created two classes of students: "those who can escape [failing schools] because of their parents’ income or where they live and those who cannot." According to SPLC, the Act violated equal protection.
Since then, in a move parallel to a parent group in Louisiana, three parents sought to intervene in the lawsuit against Alabama. The state trial court has now granted their intervention. Their primary role seems to be to emphasize the benefits of the program, notwithstanding SPLC's charges of discrimination. It seems to me that this intervention is distinct from that in Louisiana, which I argued earlier this week was probably inappropriate. The Alabama intervention makes more sense because it is not the adjudication of a violation of prior desegregation order but a challenge to the constitutionality of Alabama's current law as it stands. Regardless, this case remains one to watch. Although not as politically hot, this Alabama case may prove more doctrinally important, as SPLC raises novel claims that, if sustained, may have ripple effects elsewhere.
Alexandra Muolo’s article, Not So Black and White: The Third Circuit Upholds Race-Conscious Redistricting in Doe ex rel. Doe v. Lower Merion School District, 58 Vill. L. Rev. 797 (2013), is now available on westlaw. Doe v. Lower Merion flew under the radar of most until the last minute. The case involved a school district with just two high schools and a minority population of around ten percent. The new student assignment plan split that minority community between the two high schools. Interestingly, the challenge to the race conscious redistricting came not from the white community but from the minority community.
In an analytically complex and extremely important decision, the Third Circuit held that Justice Kennedy’s concurring opinion from Parents Involved in Community Schools v. Seattle was the controlling opinion and, thus, race conscious plans that do not rely on individual race classifications to assign students are not subject to strict scrutiny. Within a few days of the decision, the Departments of Justice and Education issued policy guidance reaching the same conclusions themselves. In short, Doe v. Lower Merion is the most important post-Parents Involved decision available.
Muolo’s article offers an in-depth examination of this case, pointing out those key aspects of the redistricting process that made it constitutional. Muolo concludes on a practical note:
When school districts are faced with Equal Protection challenges, the first step of the court will be to determine the appropriate level of scrutiny. While race-conscious integration policies only demand rational basis review, the policies still must be rationally related to a legitimate state interest. Though there are several approaches that school districts can take to avoid constitutional challenge, Doe provides a practical example. By explicitly listing race-neutral grounds for redistricting--the Non-Negotiables and community values--Lower Merion School District was able to implement a race-conscious policy that was rationally related to the legitimate purposes outlined by the Board of Directors. In the case of student redistricting policies, therefore, practitioners must advise school districts to document the legitimate, race-neutral interests for redistricting. As such, the developers of the redistricting plan may also consider racial impact, which will foster integration.