Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
Friday, February 5, 2016
The United Nations’ Working Group of Experts on People of African Descent has released a statement regarding its recent visit to the United States. The visit heavily concentrated on the criminal justice system's treatment of African Americans, but it raised concerns regarding education several times. For instance, it wrote:
- The persistent gap in almost all the human development indicators, such as life expectancy, income and wealth, level of education and even food security, among African Americans and the rest of the US population, reflects the level of structural discrimination that creates de facto barriers for people of African descent to fully exercise their human rights.
- The cumulative impact of racially-motivated discrimination faced by African Americans in the enjoyment of their right to education, health, housing and employment, among other economic, social, cultural and environmental rights, has had serious consequences for their overall well-being. Racial discrimination continues to be systemic and rooted in an economic model that denies development to the poorest African American communities. More than ten million (26%) of African Americans remain mired in poverty and almost half of them (12%) live in what is known as “deep poverty”. The Working Group is particularly concerned about the fact that 48% of the households headed by African American women live under the poverty line.
- The zip code can determine to some extent the future development of young African Americans. People from Black poor neighbourhoods are more likely to face lower education achievements, more exposure to violence and crime, a tense interaction with the police, less employment opportunities, environmental degradation and low life expectancy rates as well.
OCR Finds Melrose Schools Failed to Adequately Respond to Teacher's Statement That a Student Should Not Act Like He Is on the "Plantation"
The Office for Civil Rights has completed its investigation of racial harassment in Melrose Public Schools in Massachusetts and entered into a settlement agreement with the school system. The investigation arose out of allegations that a teacher at Melrose Veterans Memorial Middle School had reprimanded an African American student and made a reference to "the plantation" or needing to "come back to the plantation." When meeting with the administration later, the teacher indicated she could not remember exactly what she said, but it was something to the effect of "don't talk to me like you're on a plantation." Of special note is also the fact that the student was attending Melrose as part of Boston's METCO program. The program allows students from the city to attend suburban schools, with the purpose being to increase diversity.
OCR investigated the matter and confirmed the incident. It found that the administration did not document the incident, but the did arrange a meeting in which the teacher would apologize to the student. In the meeting, the teacher "apologized for any misunderstanding that may have upset the Student, and she also told the Student that he should not feel subservient to her or demean himself, and described the Student's 'coming [teacher]' comment as akin to a remark that a 'slave' would make to a 'master.'"
Monday, February 1, 2016
Parents of a Long Island teenager indicate that they will sue Valley Stream School District for failing to prevent an attack on their son--an attack that they say was racially motivated. Their son was apparently hospitalized and needed 32 stitches to close a wound on his head. Their attorney said that the student suffered "a concussion, a skull fracture that required an emergency craniotomy; which means they basically had to relieve the pressure and the pain that was building up on top of his brain.” To bolster their claim, they also point out that that their son was attacked two years earlier while at school.
News outlets report that the aggressor plead guilty to a misdemeanor charge in the most recent assault. While the severe injuries and the misdemeanor charge certainly lend sympathy to the parents' claims, these types of lawsuits are notoriously hard to win absent special circumstances. Those circumstances may be present here and the public just is not aware of them, but typically a school is under no duty to "prevent injuries" to students. To sustain a torts claim in most states, a plaintiff would need to show that the district failed to reasonably supervise its students and the bar for reasonable supervision is generally low. Another option may be to raise a Title VI claim regarding a racially hostile environment. This claim also has its drawbacks. The parents would need to show that the district had failed to reasonably respond to racial discrimination of which it had been put on notice. As long as the district took some sort of progressive response to dealing with the problem, the fact that the student was later more seriously injured would not mean the district had acted unreasonably.
In short, until we see an actual complaint, the case is hard to predict, but plaintiffs will certainly need to show more than just an injury to sustain a claim. Legal merits aside, however, the story is troubling.
Wednesday, December 16, 2015
Newark Settles Civil Rights Complaint Alleging School Closures Were Discriminatory, Reveals Lessons for Other Cases
The Advancement Project and Newark's Parents Unified for Local School Education filed a complaint with the the U.S. Department of Education challenging Newark's school closures. They alleged that the closures disproportionately affected minorities and students with disabilities and violated Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act. Newark had closed several traditional public schools during the recession, consolidating them with other traditional public schools and/or replacing them with charters. OCR found that the closures did, in fact, disproportionately affect minorities and students with disabilities and did not produce the benefits that the district claimed was the basis for the closures in the first instance. Last week, Newark agreed to take remedial action. The problem, however, is that school closures cannot reasonably be reversed and Newark still got what it wanted. The remedial steps Newark now promises are relatively mild:
- Identify whether any transferring students have suffered any academic deficiencies and take steps to remedy them.
- Determine whether transportation issues affected the ability of transferring students to participate in extracurricular activities.
- Investigate where disabled transferring students were provided with appropriate special education and related aids and services in the receiving school; and if not, whether compensatory or remedial services are necessary.
Nonetheless, advocates saw this as a victory, as they should. A similar and more aggressive and disproportionate set of closures occurred in D.C. in recent years, but the challenge to them failed. As my earlier blog post noted:
In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
There, advocates filed suit in federal district court seeking an injunction, but the court denied their injunction and dismissed the case. Thus, by rough comparison, the Newark decision is enormous.
One analytical difference also bears emphasis. OCR evaluated the efficacy of the closures after the fact, which allowed it to find that the justifications for the closures had proven flawed. In D.C., plaintiffs sought to block the closures earlier and argued, based on social science and expert opinion, that the closures would harm students and not produce the benefits the district claimed to seek. The district court, however, ignored these prospective claims and assumed the District's goals to be valid. I have not seen any subsequent research confirming or rejecting plaintiffs factual allegations, but to the extent their factual allegations were not novel, it raises the question of whether courts should take social science and expert opinions more seriously in similar cases. Newark's experience suggests they should.
Monday, November 23, 2015
The title of this post poses what might sound like an odd question, but a debate over whether to remove metal detectors from New York City's schools is gaining in prominence for two reasons. First, the last shooting in a New York City school was in 1992. Second, metal detectors are not uniform practice in the district. Rather, they tend to only be used in predominantly minority schools. The LA Times reports that "almost half of black students are scanned daily, while only 14% of white students are." From a legal perspective, this disparity on its own does not trigger scrutiny under Title VI regulations (prohibiting disparate impact). Advocates would also need to demonstrate a harm or denial of benefit. Many would argue that being asked/forced to walk through a metal detector is is not an invasion of privacy. It is definitely not an individualized search that would required reasonable suspicion under the Fourth Amendment. On other hand, the New York City Civil Liberties Union says that "[m]aking students have to go through metal detectors to go to school sends a terrible message to students about where they are headed and how they are viewed." This sounds like a stigmatic or psychological injury. This type of injury has, of course, be used in racial discrimination cases since Brown v. Board. For understandable reasons, however, the current debate is proceeding as a policy debate rather than a legal one. See here. That debate is devolving into one of safety versus racial fairness. That one may be even harder to resolve.
Wednesday, November 18, 2015
New York Attorney General Eric Schneiderman sued the Utica City School District yesterday for excluding Limited English Proficiency students from the district’s only high school and instead diverting them to unequal educational services that did not allow them to earn a high school diploma. The Attorney General's complaint alleges that the Utica district had a written policy that if district officials perceived an immigrant student to be Limited English Proficiency and over the age of 16, the student was told that he or she was "too old" to enroll at the district's high school, Proctor. In contrast, English-proficient students over age 16 were permitted to enroll at Proctor High School. The Office for Civil Rights' guidance for recent immigrant (“newcomer") programs were intended to be a bridge to general education classrooms and the district's educational services. The district's newcomer program did not meet the OCR guidelines that such programs be voluntary, of limited duration, integrated with the district's services and opportunities for other students, and designed to lead to transitioning to general education. Instead, the complaint alleges, for the past two school years the district outsourced its duty to educate LEP students to third parties, such as a local refugee center, in violation of federal and state civil rights statutes and Plyler v. Doe. The district steered LEP to students to alternatives that were "educational dead-end[s]." The few LEP students who managed to enroll at the high school were assigned to separate extra-curricular activities, lunch rooms, and buses from the rest of Proctor's students. A private class action suit alleging the same discriminatory conduct is pending against the Utica district (Tuyizere, et al. v. Utica City School District, et al. (C.A. No. 15-cv-488 (TJM-TWD)). The Attorney General's complaint in Schneiderman v. Utica City School District seeks declaratory and injunctive relief requiring the district to change its discriminatory policies and agree to corrective oversight. The complaint is here.
Monday, November 9, 2015
A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools. Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination. The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit. Regardless, the report's empirical findings are troubling:
Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.
CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.
There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.
Friday, October 9, 2015
Cribbed from the Northwest Arkansas Democrat Gazette: Another suit challenging the Arkansas Board of Education's decision to assume control of the Little Rock School District (LRSD) was filed Wednesday, this time in federal court. The federal complaint was filed by parents and students in the Little Rock district and two former school board members who were displaced after the state's January takeover of the district, after which a state court complaint was filed by the same attorney who represents the complainants in the federal case. The federal suit alleges that LRSD's black students suffered racial discrimination after a federal court held that the district had achieved unitary status in 2007, by being disciplined more harshly than their white peers, being educated in inadequate facilities, having their elected school board stripped of power, and by the district's building new schools away from majority-black areas. The complaint also notes that in the LRSD schools with a majority-white student body, the percentage of minority teachers are low (see graphic, courtesy of the Arkansas Times). The suit requests that the school board be restored, that LSRD be enjoined from opening a new school in west Little Rock (a majority-white area), and that the state be enjoined from approving new charter schools until the LRSD has a "constitutionally adequate" facilities plan. The Arkansas Times has posted an unofficial copy of the complaint in Doe v. Arkansas Dept. of Ed. here.
Wednesday, August 26, 2015
Edward Smith and Shaun Harper have released a new study focusing on suspensions and expulsions in the South. Most of it is sadly par for the course, but the enormous portion of the nation's suspensions and expulsions that come from the South was shocking. "Nationally, 1.2 million Black students were suspended from K-12 public schools in a single academic year – 55% of those suspensions occurred in 13 Southern states. Districts in the South also were responsible for 50% of Black student expulsions from public schools in the United States." The racial disparities also seemed to track consistently higher than than other regions. "In 132 Southern school districts, Blacks were disproportionately suspended at rates five times or higher than their representation in the student population." Expulsion disparities were high as well, although slightly lower the suspension disparities. "In 77 Southern school districts, Blacks were disproportionately expelled at rates five times or higher than their representation in the student population."
The study also includes a nice set of tables with the data for individual school districts, so one can easily see what is occurring in their own community, region, and state.
Get the full report here.
Friday, August 21, 2015
A new study by Seth Gershenson, Stephen Holt, and Nicholas Papageorge finds a disturbing trend of racially disparate expectations for students based on race. The abstract offers this summary:
Teachers are an important source of information for traditionally disadvantaged students. However, little is known about how teachers form expectations and whether they are systematically biased. We investigate whether student-teacher demographic mismatch affects high school teachers’ expectations for students’ educational attainment. Using a student fixed effects strategy that exploits expectations data from two teachers per student, we find that nonblack teachers of black students have significantly lower expectations than do black teachers. These effects are larger for black male students and math teachers. Our findings add to a growing literature on the role of limited information in perpetuating educational attainment gaps.
More specifically, they find that "relative to teachers of the same race and sex as the student, other-race teachers were 12 percentage points less likely to expect black students to complete a four-year college degree. Such effects were even larger for other-race and other-sex teachers, for black male students, and for math teachers. In addition to being statistically significant, these effects are arguably practically significant as well, as they constitute more than half of the black-white gap in teacher expectations."
Read the full study here.
Tuesday, August 11, 2015
Members of the Detroit Public Schools board has filed a Title VI complaint with the Justice Department against Michigan and Gov. Rick Synder for discriminatory and retaliatory policies that affect the city's minority students, the Detroit Free Press reports. In the 450-page complaint, DPS members allege that Gov. Snyder’s appointed emergency managers have denied the civil rights of DPS students, teachers, and the public by creating “separate and unequal treatment for [the district's] African-American” students. The complaint is the latest salvo in a long-running disagreement between DPS and the governor's office, which DPS accuses of dismantling the city's school system and driving families out of the district to find schools. For twelve of the last fifteen years, appointed emergency managers has had oversight of the district, leaving little power to the DPS board. In the complaint, the DPS board allege that the emergency managers "have engaged in a pattern of discriminatory conduct aimed at ultimately privatizing the district." The DOJ complaint also cites the emergency managers of ignoring warnings about former City Council president Charles Pugh being allowed to mentor teenage boys before the district was sued last year for sexual harassment by a teen with whom Pugh allegedly engaged in "sexting." We have not seen the entire complaint, but DPS has posted an abridged version here.
Monday, July 20, 2015
Court Holds Arizona's Ban on Ethnic Studies Violates First Amendment and Remands for Further Findings on Discrimination
The Ninth Circuit has issued its decision in Arce v. Huppenthal. The case arises out of the 2010 ban on Mexican American Studies programs in Arizona. The legislature passed A.R.S. § 15-112(A), which prohibits school districts and charter schools from having educational programs that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.”
The Ninth Circuit held that § 15-112(A)(3) violates the First Amendment due to overbreadth, but held that §§ 15-112(A)(2) and (A)(4) were constitutional. The trickier analysis in regard to plaintiffs' motivations. Plaintiffs' alleged that the legislation was racially or ethinically motivated and motivated by viewpoint discrimination. The former would violate the Fourteenth Amendment and the latter the First Amendment. The district court had granted the defendant's motion for summary judgment on the the equal protection and view point discrimination claims. The Ninth Circuit reversed and remanded, finding there were "genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent." The court noted it is undisputed that “the statute was enacted almost entirely” to shut down the Mexican American Studies program in Tuscon.
Wednesday, July 8, 2015
OCR's Dismissal of Asian Americans' Claim of Discrimination Against Harvard Is Much Ado About Nothing
Yesterday, a number of major new outlets, from the Wall Street Journal and the AP to the Bloomberg and US News & World Report, published stories on the fact that the Office for Civil Rights dismissed the complaint that Asian Americans recently filed against Harvard. The complaint alleged that Harvard systematically discriminates against them in the admissions process. The substance of the complaint and the prestige of the university against which it was filed are both significant. See my prior post on the complaint. That OCR dismissed the complaint, however, is not.
After filing the complaint, the plaintiffs had also filed a lawsuit in federal court. The federal court's jurisdiction exceeds and can preempt that of OCR's. Thus, even if OCR had left the complaint open, the final word would have belonged to the federal court. That OCR, which has a rapidly growing case load, would choose to avoid devoting resources to this complex case makes perfect sense. This not a substantive judgement on the merits of the complaint, as some headlines would leave readers to believe, but just good stewardship of federal dollars. Moreover, if there are issues the federal court does not address, the plaintiffs will be free to revive their complaint with OCR.
Thursday, June 18, 2015
The Southern Poverty Law Center and Flagler County Schools in Florida a reached a settlement to resolve a claim of discriminatory discipline. The original complaint had alleged that "African-American students accounting for 31 percent of all out-of-school suspensions during the 2010-11 school year even though they were only 16 percent of the student population." Under the agreement, the School Board adopted a wide-ranging plan to eliminate racial disparities in school discipline . Rather than permitting unilateral school level decision, the school district itself will have to approve suspensions of five or more days this upcoming school year, and suspensions for three or more days in the next school year. In addition, staff will receive cultural competency and implicit bias training. A committee will monitor discipline data on a regular basis to monitor progress. The district will consider abolishing suspensions altogether once it develops an alternative school program, peer mediation, and restorative justice practices. The district also committed to work with law enforcement to reduce in-school arrests.
SPLC is still pursuing federal civil rights complaints in Escambia, Bay, Okaloosa and Suwannee county school districts.
Wednesday, June 17, 2015
Last year, the Second Circuit Court of Appeals held that the claims against the New York Board of Education could move forward. Plaintiffs had alleged the Liberal Arts and Sciences Test (“LAST”) had a disparate impact on African Americans, was not validated as job related, and, thus, the state's use of it violated Title VII. The case was remanded back to the trial court. Earlier this month, the trial court in Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 2015 WL 3536694 (S.D.N.Y. June 5, 2015), found:
After reviewing all of the evidence offered by Dr. Outtz and the parties, including expert opinions and the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures, . . . that the BOE unfairly discriminated against African–American and Latino applicants by requiring them to pass the LAST–2. Like its predecessor, the LAST–2 had a disparate impact on African–American and Latino test takers. And like its predecessor, the LAST–2 was not properly validated as job related, because the exam's designers did not employ procedures to identify the specific areas and depth of knowledge of the liberal arts and sciences that any competent teacher would need to understand. The BOE's use of the LAST–2 was thus unfairly discriminatory under Title VII.
Friday, June 5, 2015
Flagler County Schools (FL) agreed to change its disciplinary practices after being sued for racial discrimination against African-American students, reports the Daytona Beach News-Journal. The Southern Poverty Law Center filed a complaint against Flagler Co. Schools in 2012 for removing and arresting black students more harshly than white students. The complaint alleged in the 2010-11 school year, black students made up 16% of the Flagler Co.'s school population, but were 31% of the in-school and out-of-school suspensions and 69% of expelled students. The complaint also alleged that black students were retained at a disproportionate rate of 22%. Flagler Co. school officials told the media that it will, subject to the school board's approval, reduce out-of-school suspensions and form a citizens’ committee to monitor discipline practices. The district also reportedly agreed to reserve out-of-school suspensions for situations when there’s a safety concern, and require district approval for suspensions lasting five days or more. Starting in August 2016, the district will require approval for any suspension of three days or more and consider eliminating out-of-school suspensions altogether.
Friday, May 1, 2015
The Office for Civil Rights has released its 2013-2014 report to Congress and the President. From my perspective, past reports have been dense and un-illuminating. This current one strikes a very different approach. First, it is very well written. Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative. Fourth, it is analytical. Fifth, it is visually appealing. Sixth, it implicitly suggests courses of action or concern. Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.
May 1, 2015 in Bullying and Harassment, Discipline, Discrimination, English Language Learners, Equity in education, Federal policy, Gender, Racial Integration and Diversity, Special Education | Permalink | Comments (0)
Thursday, April 23, 2015
Jason A. Okonofua and Jennifer L. Eberhardt of Stanford University have published Two Strikes: Race and the Disciplining of Young Students, confirming what statistical analysis has long suggested: that whether and how a student is disciplined is heavily influenced by subconscious racial biases. Their abstract explains:
There are large racial disparities in school discipline in the United States, which, for Black students, not only contribute to school failure but also can lay a path toward incarceration. Although the disparities have been well documented, the psychological mechanisms underlying them are unclear. In two experiments, we tested the hypothesis that such disparities are, in part, driven by racial stereotypes that can lead teachers to escalate their negative responses to Black students over the course of multiple interpersonal (e.g., teacher-to-student) encounters. More generally, we argue that race not only can influence how perceivers interpret a specific behavior, but also can enhance perceivers’ detection of behavioral patterns across time. Finally, we discuss the theoretical and practical benefits of employing this novel approach to stereotyping across a range of real-world settings.
Read the full study here.
Monday, March 23, 2015
The Office for Civil Rights at the Department of Education is tasked with investigating complaints of race, gender, ethnic, disability, language discrimination, and age, and ensuring that schools are in compliance with the relevant law. In 2009, OCR received 6,364 complaints. In 2014, it received 9,989, which was a record high. The reasons are not altogether clear, but the Washington Post points out two likely causes. First, OCR's recent guidance on sexual assault on college campuses and increasing student advocacy on this issue may have prompted several complaints in that area, although no single area of discrimination has experienced an unusual increase. Second, as Catherine Lhamon, the Assistant Secretary at OCR, remarked: “Some of this is about the community believing that we’re here and we’re in business and we’re prepared to do the work.”
The second explanation rings particularly true. As I have noted several times, OCR has begun enforcing anti-discrimination more aggressively over the past year or two. Various policy guidance documents have all but invited individuals to bring complaints that they might have foregone in prior years, thinking that such a complaint was a waste of time.
Not mentioned is the fact that courts have grown so inhospitable to some claims, particularly those requiring evidence of intentional race discrimination. See Alexander v. Sandoval. OCR's continuing authority to enforce its disparate impact regulations leaves it as one of the venues of last resort for communities experiencing educational inequality. This reality, however, is overtaxing the resources of OCR. The time it takes to resolve cases has grown considerable. It is now asking Congress for additional funding to hire 200 additional attorneys and investigators. Of course, what I might term as OCR's successes are termed as overreaches by some in Congress, who are thus skeptical of the efficacy of funding increases.