Thursday, May 23, 2013
Although I am quite sure I did not spur her, Cynthia Brown followed up my post on the U.S. Department of Education's Equity and Excellence Commission report with her own article in edweek. She chides the report for pointing out problems in school finance, but offering no solutions. Thus, in her article she offers three relatively simple, but bold, proposals. First, she proposes eliminating the four federal funding formulas currently in place and replacing them with "one formula that better targets schools with high concentrations of students in poverty. This honors the law's intent of providing additional education resources for children with the greatest educational needs." Second, she proposes closing inequities within individual school districts, most notably by no longer exempting teacher salaries from equity calculations, which allows all of the highest paid and most qualified teachers to teach at the same schools. Third and most boldly, she argues that "States should adopt a state-based system of school financing—one in which states provide all nonfederal resources for education, and districts no longer have the power to raise funds from local property taxes." As my scholarship in the past has suggests (see here), I believe Brown is on the right track. But I would reiterate my concern from yesterday that we not ignore segregation, as it is intertwined. Moreover, if we are too agressive in attempting to offset the costs of concentrated poverty, we could financially incentivize further segregation and decentivize integration.
Legal scholarship on education law covers the waterfront this week. This week we note articles on affirmative action jurisprudence, income disparity in education, and that Brigham Young University's Education and Law Journal is out with several articles on education law and reform.
New Fisher scholarship
Leslie Yalof (Pace Law School) has published The Inevitable Irrelevance Of Affirmative Action Jurisprudence, 39 J.C. & U.L. 1 (2013), excerpted below:
Fisher v. University of Texas presents an Equal Protection challenge to the University of Texas' race-preference admissions policy. In this article, I am proceeding on the assumption that, in its decision, the Court will not abolish affirmative action programs wholesale, if it addresses the merits of Abigail Fisher's challenge. ... Based on the existing precedent, the Court can decide the Fisher case in any of three ways. First, the Court could avail itself of the opportunity presented by Fisher to expand the constitutional permissiveness of considering race as a factor in admissions decisions. Given that four of the eight justices deciding this case have made clear their strong opposition to the use of race in this context, this scenario is highly unlikely. At the other end of the spectrum, the Court could find that there is no longer a compelling governmental interest in the use of race in the admissions process, thereby causing the sun to set on affirmative action admissions policies much sooner than Justice O'Connor predicted in her majority opinion in Grutter. This is an equally unlikely scenario because four of the Justices have already confirmed their commitment to the compelling governmental interest in using race-preference policies to achieve viewpoint diversity. The most likely outcome is that the Court will rule very narrowly, striking down the UT program as not being narrowly tailored, while leaving intact the Court's previously articulated finding of a compelling governmental interest in diversity education. Thus, colleges and universities will remain free to construct some type of race-preference admissions policy in an effort to ensure diversity among their classes. Despite the Court's commitment to upholding the narrow use of race in the admissions process, however, most institutions will be unable or, more likely, unwilling to construct constitutionally permissible race-preference admissions programs. ... For this reason, regardless of how the Court decides, Fisher will ultimately be inconsequential to school admissions decision-making and, therefore, will do little more than highlight the growing irrelevance of affirmative action jurisprudence.
In Race and Income Disparity: An Ideology-Neutral Approach to Reconciling Capitalism and Economic Justice, 3 Colum. J. Race & L. 49 (2013), Robert Hardaway (University of Denver, Sturm College of Law) examines the continuing problem of ideological battles between political groups and coalitions that have frustrated the quest for solutions to widening income and wealth disparities:
The fault for society's failure to adequately address income disparity along racial lines does not lie exclusively with any one political group or party. Both liberals and conservatives have permitted ideology to cloud their search for meaningful solutions. If these solutions are to be found, conservatives must discard ideological preconceptions in such areas as abortion rights, family planning, and drug policy; liberals must likewise discard ideology in their approach to tax policy, immigration, housing, and education. Both conservatives and liberals must discard ideological preconceptions and abandon politically seductive, but ultimately demagogic and self-defeating policies relating to international trade, and residential exclusionary policies, particularly in the areas of zoning.
In Misshaping the River: Proposition 209 and Lessons for the Fisher Case, 39 Journal of College and University Law 53 (2013), William C. Kidder relates five lessons for Fisher learned from California's affirmative action ban, Proposition 209. Kidder is the Assistant Executive Vice Chancellor at UC Riverside, but notes that the article expresses his personal views rather than the views of the University of California. Below is an excerpt of Misshaping the River:
California's experiences with and responses to Proposition 209 bear on the Fisher v. University of Texas at Austin case with respect to both questions of compelling interest and narrow tailoring. ... This article advances the following findings and conclusions:
Lesson #1--At the University of California, which is subject to an affirmative action ban, recent survey data from eight campuses confirms that the campus racial climate is significantly more inhospitable for African Americans and Latinos than at UT Austin and two other peer universities.... Relatedly, on the question of “critical mass” versus racial isolation that was discussed at length during the U.S. Supreme Court's oral argument in the Fisher case--and that was one key consideration taken into account by UT Austin in devising its admissions program--the comparative data in this article suggest that the threat of educational harm associated with racial isolation is very real (particularly for African Americans) and should not be minimized or overlooked.
Lesson #2--Contrary to recent claims by groups opposing affirmative action, Proposition 209 (“Prop 209”) triggered a series of educationally harmful “chilling effects.”
Lesson #3--Affirmative action critics supporting Petitioner are propagating two related myths about credentials and performance. First, they scapegoat affirmative action as the overwhelming cause of racial/ethnic differences in SAT scores at UT Austin and elsewhere, when this relationship is quite modest for reasons stemming from the mathematics of admissions. Secondly, the critics stubbornly insist that affirmative action causes substantial “mismatch” effects on underrepresented minority student performance when in fact there is a voluminous social science literature indicating that affirmative action at highly selective institutions has a net positive effect on graduation rates and other important outcomes.
Lesson #4--While some argue in favor of class-based affirmative action in lieu of race-conscious programs, UC's atypically large enrollment of low-income undergraduates is strong “natural experiment” evidence verifying that class-based policies are not effective substitutes for race-conscious policies.
Lesson # 5--The experience of: UC Business Schools and UC Law Schools after Proposition 209 provide compelling case studies regarding the need for race-conscious affirmative action.
Other articles this week address the future of legal education. While we would normally leave articles on the legal education debate to our colleagues at The Legal Whiteboard, we highlight a few this week that touch upon equity in education.
Inequities and the future of legal education
Brian Tamanaha (Washington University Law) has posted The Failure of Crits and Leftist Law Professors to Defend Progressive Causes (Stanford Law & Policy Review, forthcoming) on SSRN.
In the article, Tamanaha confronts liberal legal academics for "perpetuating the profoundly warped and harmful economics of legal education" and encourages them to "take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation."
Responding to Tamanaha's Failing Law Schools book, Michael A. Olivas has written Ask Not for Whom the Law School Bell Tolls: Professor Tamanaha, Failing Law Schools, and (Mis)Diagnosing the Problem, 41 Wash. U. J.L. & Pol'y 101 (2013). Olivas "call[s] us to action as a community, for threats to the universe of legal education will affect us all to our collective detriment and to that of our students." Here is an excerpt of his abstract:
The real Cassandra, however, is Professor Brian Z. Tamanaha, whose apocalyptic book Failing Law Schools is a shrill call to arms, a substantial work of powerful charges and dire solutions, well-written and arriving at a crucial time in legal education, in the United States and worldwide. I believe he holds powerful diagnostic skills and has a storyteller's narrative, but I believe his solutions are substantially wide of the mark, and would violate the code that remedial actions should, at the least, do no harm. If he were simply overstating issues or being a provocateur for the sheer sake of being one, as other critics have done, I would simply let him stew in his own juices. But his devastating critique has a number of accurate observations, ones I share, so laying out his arguments and his critical architecture is necessary to see how the analytic second step--his remedies--can be so wrong. Indeed, rather than merely noting his architectural framework, I will note the arithmetic of his remedies, and attempt to show why he should receive only partial credit for his math homework.
In The Job Gap, the Money Gap, and the Responsibility of Legal Educators, 41 Wash. U. J.L. & Pol'y 1 (2013), Deborah Jones Merritt (Moritz College of Law, The Ohio State University) addresses economic reform in legal education:
Today's law school graduates face a grim prospect: more than half of them will not make a career practicing law. Some of those graduates will enjoy jobs in fields allied with law, but many will settle for work with little connection to the degree they earned. ... These trends generate two gaps. The first is between the number of students earning law degrees and the number of lawyering jobs available to them. The second is between the tuition that students pay and the early-career salaries they receive--if they are fortunate enough to find lawyering work. I explore these two shortfalls, the job gap and the money gap, in the first and second sections of this Essay. In the final section, I turn to an equally troubling lacuna: the failure of law schools to acknowledge the harms their graduates are suffering. This responsibility gap is one that we, as educators, have the power to bridge. As I explore the shortfall between our schools' actions and our responsibilities, I offer several concrete steps to close that gap.
In An Essay on Rebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375 (2013), Jack Graves (Touro Law) describes ways to reduce risks and improve legal education outcomes for the bottom half of students in the bottom half of all law schools. Focusing on this group is essential to rebuilding legal education, Graves writes, because "[t]his group represents 25% of current law graduates, and, as a group, they almost certainly bear a disproportionate share of the burden created by our broken educational model. While the suggestions that follow will in some ways specifically target this “bottom quartile,” I believe they would materially improve legal education for a substantial majority of all prospective students."
Wednesday, May 22, 2013
Nearly two years ago, the Department of Education created a commission of experts to:
provide advice to the secretary of the U.S. Department of Education on the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and to recommend ways in which federal policies could address such disparities. The findings and recommendations of the commission do not represent the views of the department, and this document does not represent information approved or disseminated by the Department of Education.
The Commission released its report this spring and described its proposed strategy for reform as follows:
• First, we begin with a restructuring of the finance systems that
underlie every decision about schools, focusing on equitable resources
and their cost-effective use.
• Second, we examine the most critical resource of all: quality teachers and school leaders, the supports they need to be effective with all learners and ways to make sure all students have access to high-quality instructional opportunities.
• Third, we explain the importance of starting early—making the case for high-quality early learning for all children, especially for low-income children, who need it most.
• Fourth, there is the matter of providing critical support—including increased parental engagement, access to health and social services, extended instructional time and assistance for at-risk groups—that students in high-poverty communities need to start strong and stay on track.
• And fifth, we lay out the changes in accountability and governance necessary to ensure that, a decade from now, there doesn’t need to be yet another commission appointed to call public attention to the corrosive effects on the nation’s children and our future of the failure to advance equity and excellence in America’s public schools.
These points recognize the problem of concentrated poverty, but the solutions focus exclusively on addressing the problem in place through money, programs, and the lack. Curiously missing is any mention of integration strategies. A few members of the Commission were interested in focusing more heavily on integration, but the fact that they lack significant support is a sad testiment to how far away from integration the conversation has moved.
The Leadership Conference Education Fund recently released a response report to the Commission. Integration was missing from its proposals as well. The absence in both reports of integration proposals is probably due to the Commission's core charge of addressing finance inequity, and a desire to not muddy the waters with other issues. While these practicalities are understandable, the assume that segregation and inequality can separated, which history and scholars tell us is false. As Jim Ryan most prominantly has argued, the achievement gap is caused by the intersection of school finance inequity and segregation, not finance inequity alone. Thus, solving finance inequity without touching segregation will not pay the dividends that policy makers expect.
Tuesday, May 21, 2013
The Washington Post reports that Alaska, Hawaii and West Virginia have joined 37 states and the District of Columbia that have received waivers from the Department of Education from provisions in the federal No Child Left Behind (NCLB) law. NCLB requires K-12 schools to reach certain reading and math proficiency levels by 2014.With NCLB's target date approaching, states fearful of failing to meet their proficiency goals are requesting relief from the law's escalating sanctions, ranging from school improvement plans to takeover and conversion to public charter schools. Only five states--California, Montana and Nebraska, North Dakota, and Vermont--are not requesting waivers. Eight states have pending waiver requests. In 2009, Diane Ravitch and John Chubb discussed NCLB's future as "the most ambitious legislation on K–12 schooling in American history" in Education Next. Were they right?
Supreme Court grants cert in government prayer case; mum on challenge to high school graduations in churches
The U.S. Supreme Court granted cert yesterday in a government prayer case that could implicate religious expression during school board meetings. In Town of Greece v. Galloway, a New York town's practice of opening its legislative meetings with prayer--typically conducted by Christian clerics--is being challenged. The Supreme Court will review the Second Circuit Court of Appeals' holding that praying before town meetings is a government sanction of religion that violates the Establishment Clause. Lyle Dennison at SCOTUS Blog notes that the Court has said nothing about Elmbrook School District v. Doe, despite the case being on the conference calendar seven times this spring.
The school case challenged the Elmbrook, Wisconsin Board of Education's renting a church for high school graduations. Although the district's graduation exercises were moved to a non-religious facility in 2010, the issue presented of whether school districts may use religious facilities for school events remains unresolved. Last summer, the 7th Circuit Court of Appeals held en banc that "an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbrook Church. The 7th Circuit noted that its decision was narrowly focused to the facts before the court and that its ruling "should not be construed as a broad statement about the propriety of governmental use of church-owned facilities."
Monday, May 20, 2013
On Friday, the Nebraska Supreme Court in J.P. v. Millard Public Schools struck down a school's search of a student's car, which had turned up drug paraphernalia. Because the car was parked off-campus (across the street from the school), the court was able to distinguish the case from various other decisions that had upheld searches of student cars that are parked on campus.
Cases striking down student searches were nearly non-existent a decade ago, and now have begun to appear with some minimal level of regularity (at least in comparison to prior years). The U.S. Supreme Court in Safford Unified School Dist. v. Redding, 557 U.S. 364 (2009), struck down a strip search of a student. It followed that with a non-search, but related case, JDB v. North Carolina, in which it struck down the interrogation of a student on school grounds. Several state courts have also been willing to find searches unconstitutional on state grounds, even if not on federal grounds. York v. Wahkiakum Sch. Dist. No. 200, 163 Wash. 2d 297 (2008).
The recent Nebraska decision is easy enough to limit to its facts and, thus, would be relatively inconsequential. The same could be said of many of the other cases striking down searches. The quesion I continue to ponder is whether these cases represent examples where the courts have no choice but limit state action or whether the represent a willingness on the part of courts to gradually roll back the expansive power given to them in New Jersey v. TLO and which schools have argueably abused over the past two and a half decades.