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.
Thursday, March 19, 2015
Mark Weber's new article, Accidentally on Purpose: Intent in Disability Discrimination Law, is now available on ssrn here and forthcoming in Boston College Law Review. For those interested in intentional discrimination standards in general (race, gender, etc.) or disability discrimination in particular, the article is a must read. It takes very complex and intersecting statutory concepts of intent and brings them together in a coherent way. Moreover, it points out where some courts have just gotten precedent wrong and should self-correct. His abstract offers this summary:
American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.
This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.
Friday, March 13, 2015
With the Fair Housing Act currently before the Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, several education commentators and civil rights advocates have emphasized the connection between housing and schooling. Of course, the Poverty and Race Research Action Council has long made this connection, in contrast to others that focus on housing and education policy in silos.
Los Angeles Unified School district has recently been making a connection entirely lost on me until this week. The district brought a claim under the Fair Housing Act against three major banks, alleging racially biased mortgage lending. Why, some might wonder, would a school district bring a housing claim? Because, according to the district, the banks' lending practices led to foreclosures in the Los Angeles area, which directly lead to lower home values and real estate taxes--the life blood of education. In other words, biased home lending practices not only lead to racially segregated schools-the point most often made by advocates--but also inadequate financial resources for those segregated schools.
So far, the district is facing an uphill battle. In February, the district court dismissed the claims, reasoning that school funding levels are not directly tied to local property taxes. The district is now appealing. More here.
Wednesday, January 7, 2015
Since the protests in Ferguson, Missouri first began, I have been burdened by the thought that it warranted discussion here, but never found a way to comment appropriately. To comment here seemed opportunistic or too tangential to the issues within the normal scope of this blog. Two weeks ago, the ACLU made a connection or, at least, decided to focus on the education issues in the local school district.
A new ACLU lawsuit challenges the school leadership in the Ferguson-Florissant School District, arguing that the white dominated school board and the electoral process that produces it are in violation of the Voting Rights Act. “African-American students accounted for 77.1% of total enrollment in the 2011-2012 school year,” but only one of seven school board members are African American. The press release explains:
"The current [voting] system locks out African-American voters. It dilutes the voting power of the African-American community and severely undermines their voice in the political process," said Dale Ho, director of the ACLU's Voting Rights Project.
The Ferguson-Florissant School District has a history fraught with discrimination against African-American citizens. The district, which spans several municipalities, was created by a 1975 desegregation order intended to remedy the effects of discrimination against African-American students. Yet, 40 years later, there is just one African-American member on the seven-member board in a district where African-Americans constitute 77 percent of the student body.
Plaintiffs attribute the District's “significant racial disparities in terms of enrollment in gifted programs, access to advanced classes, assignment to special education programs, and school discipline” to the racially inequitable political process.
Friday, December 12, 2014
For those who missed it, the New York Times ran a story Wednesday on discipline disparities for African American females, telling the experience of two young African American girls. The first was described by teachers as very focused, but after she and a white friend scribbled some words on a bathroom stall, things fell apart. Her part was to write the word "hi." The school's response was to suspend her, accuse her of vandalism and demand $100 in restitution. When her family said it could not pay that amount, she received a visit from a police officer, who served her with papers accusing her of a trespassing misdemeanor and, potentially, a felony. The final result was a summer on probation, a 7 p.m. curfew, 16 hours of community service, and a letter of apology. Her friend was able to pay restitution and escaped juvenile justice consequences. Most poignant, however, was the emotional harm and anxiety that she experienced (as well as the girl in the second story). One girl's mother called it the equivalent of child abuse.
Monday, October 6, 2014
R. L'Heureux Lewis McCoy's new book, Inequality in the Promised Land: Race, Resources, and Surburban Schooling, explores the working of segregation and inequality at the classroom level. The book description states:
Nestled in neighborhoods of varying degrees of affluence, suburban public schools are typically better resourced than their inner-city peers and known for their extracurricular offerings and college preparatory programs. Despite the glowing opportunities that many families associate with suburban schooling, accessing a district's resources is not always straightforward, particularly for black and poorer families. Moving beyond class- and race-based explanations, Inequality in the Promised Land focuses on the everyday interactions between parents, students, teachers, and school administrators in order to understand why resources seldom trickle down to a district's racial and economic minorities.
Wednesday, October 1, 2014
The Office for Civil Rights released a lengthy Dear Colleague letter today that emphasizes the extent of resource inequalities in schools and its legal framework for evaluating whether those inequalities violate Title VI of the Civil Rights Act.
Many States, school districts, and schools across the Nation have faced shrinking budgets that
have made it increasingly difficult to provide the resources necessary to ensure a quality
education for every student. Chronic and widespread racial disparities in access to rigorous
courses, academic programs, and extracurricular activities; stable workforces of effective
teachers, leaders, and support staff; safe and appropriate school buildings and facilities; and
modern technology and high-quality instructional materials further hinder the education of
students of color today.
I would add middle income students to the list of "resources" to which students must have equal access. Half a century of research confirms that the most important school level determinate of an individual student's academic outcomes is the socio-economic status of the students with whom the student attends school. Middle income students and families bring social capital and other important resources to schools that heavily affect climate, motivation, and the other tangible resources that the Department references in its letter. In other words, student assignment policies cause resource inequalities. Thus, at the local level, student assignment cannot be separated from the conversation of resources, school quality, and academic outcomes.
Wednesday, September 24, 2014
Tuesday, the NAACP Legal Defense Fund and the National Women's Law Center released a critical report on African American Girls and Education. They offer this summary:
The report, titled Unlocking Opportunity for African American Girls: A Call to Action for Educational Equity, is aimed at eliminating barriers that are rooted in racial and gender discrimination so that African American girls and other children of color have meaningful access to equal educational opportunities. The report first provides a historical perspective that captures the critical role that African American women played in desegregating schools and ensuring that all students, irrespective of race, have access to a high quality education. The report then discusses how racial and gender stereotypes permeate classrooms today; other barriers that African American girls face; and academic indicators that show African American girls are being left behind. Finally, the report sets forth a series of recommendations for eradicating the barriers that African American girls and other students of color face.
Wednesday, July 30, 2014
The D.C. federal district court granted summary judgment for the D.C. Public Schools (DCPS) in a lawsuit that alleged that DCPS discriminated against minority students by closing schools in minority neighborhoods while allowing predominantly white schools to stay open. The suit's plaintiffs, parents of schoolchildren in the affected districts, also alleged that the school closures funded performance bonuses for teachers in disproportionately white schools and the closures are intended to expland charter schools, which, in turn they allege, are themselves discriminatory institutions. DCPS said that it closed 15 schools and plans to close more because of low enrollment. DCPS said that it would reallocate the savings to put students in more modern facilities and create more programs for the remainining schools. The court rejected the plaintiffs' arguments, stating that both white and minority schools have closed for low enrollment and attributed the pattern of closures in minority areas as "residential segregation, along with changing population patterns, that is largely to blame for the disparities in the closures.” Noting that the school-closure plan was facially race neutral, the court found that the plaintiffs failed to prove that the District’s plan was applied differently because of students’ race or motivated by discriminatory animus. While all of the schools set to be closed are in majority-minority, lower-income neighborhoods, the court noted that the schools' have been "drained of their students by the increasing popularity of charter schools," with 40%-50% of schoolchildren in those areas now attending charter schools. The federal district court found that DCPS could not be found to be "discriminating by attempting to provide all children with access to higher-achieving schools." Finding that DCPS's stated goals-- to increase efficiency and improve the District's overall school services -- were justifiable, the court dismissed the plaintiffs' Title VI and Equal Protection claims. Read the opinion in Smith v. Henderson, No. 13-420 (D.D.C. July 18, 2014) here.
Tuesday, May 27, 2014
Last month, OCR reached two significant settlement agreements. The first was with New Hampshire’s Manchester School District, School Administrative Unit #37. The settlement agreement was in response to tracking and unequal access to college and career preparatory courses for black and Latino students. The most stark disparities were in the district’s AP courses. "Despite the enrollment of 381 black students and 596 Latino students at the high schools, only 17 seats in AP classes went to black students and only nine seats in AP classes went to Latino students, out of the total of 434 seats in AP courses. At two of the three high schools, there were no Latino students enrolled in the AP courses." OCR found a number of structural barriers in the district's policies that lead to these disparities. The district agreed to several steps to address the disparities, the most notable of which were:
- Identify and implement strategies subject to OCR review and approval to increase student participation in its higher-level learning opportunities, particularly for underrepresented groups such as black, Latino and ELL students.
- Consider increasing the numbers and types of courses, adding more teachers qualified to teacher higher-level courses and revising selection criteria for enrollment in higher level learning opportunities if these are barriers to increased participation.
- Specifically assess the impact of assigning students to academic “levels” upon arrival at the high schools on their participation in higher-level learning opportunities, and consider eliminating the system of student assignment to levels or altering the current criteria or method of implementation.
- Specifically consider eliminating the GPA and class rank penalties associated with withdrawing from higher-level courses.
- Provide increased support for students enrolled in higher level learning opportunities through counseling, peer support groups and tutoring.
The other settlement agreement was with the Hazleton, Pa., Area School District. OCR found that English Language Learner (ELL) students in the district did not have access to equal educational opportunities and that the district was not adequately notifying their parents of information made available to other parents in English. More than 10 percent of Hazleton's students are ELLs, which would suggest a scale that should have allowed the district to operate a more robust program, but OCR found that the district was inappropriately excusing students from the English language development program, not providing the required instructional time for over 240 elementary school ELL students, not evaluating the effectiveness of its program, and not using an effective system to identify and communication with limited English proficient parents. The district agreed to take the following steps:
- Ensuring that students whose primary home language is not English will be promptly assessed for English language proficiency to determine eligibility for placement in an English language development program and that students will not be improperly exempted from assessment;
- Assessing students who were improperly exempted from language proficiency assessment to determine whether they may be eligible to receive English language development services;
- Conducting a comprehensive evaluation of the English language development program at each school level to determine its effectiveness and making modifications to address areas where the program is not meeting the district’s goals;
- Developing and implementing policies and procedures to ensure that LEP parents are notified, in a language they understand, of school activities that are called to the attention of other parents; and
- Providing training to appropriate staff on procedures for identifying language-minority parents and on policies and procedures for serving language minority parents.
Friday, May 9, 2014
The Departments of Education and Justice have released this new guidance on access to school for immigrant children:
Today, Secretary Arne Duncan and Attorney General Eric Holder announced updated guidance to assist public elementary and secondary schools to ensure enrollment processes are consistent with the law and fulfill their obligation to provide all children – no matter their background – equal access to an education.
In 2011, the Departments of Justice and Education issued guidance to help schools understand their responsibilities under the Supreme Court’s decision in Plyler v. Doe and federal civil rights laws to provide all children with equal access to an education regardless of their or their parents’ immigration status. Today, the departments are issuing important updates to that guidance, including examples of permissible enrollment practices, as well as examples of the types of information that may not be used as a basis for denying a student entrance to school.
The updated guidance documents— including a guidance letter to states and school districts and a fact sheet and Q and A document—emphasize the need for flexibility in accepting documents from parents to prove a child’s age and to show that a child resides within a school’s attendance area. They also provide specific examples of the types of documents that many schools have accepted. And the guidance documents remind schools that they may not require certain documents – such as a parent’s state-issued driver’s license – where such a requirement would prevent a student from enrolling because of his or her parent’s immigration status.
In the three years since the guidance was initially issued in 2011, the departments have worked collaboratively with states and school districts across the country to meet their obligations under Plyler and federal civil rights laws that prohibit discrimination on the basis of race, color and national origin.
The important changes announced today will provide districts with the additional tools and practical guidance needed to make sure the schoolhouse door is open to all students and that undocumented children and children from immigrant families no longer face barriers to enrollment in school and starting down the path to a better future.
The Departments of Education and Justice
Monday, March 3, 2014
Office for Civil Rights Reaches Voluntary Resolution of Kentucky School District’s Discipline Disparities
The Office for Civil Rights, Department of Education, had been investigating Christian County Public Schools' discipline system. It found basic due process flaws on the front end and significant racial disparities on the back end. "[B]lack students were consistently more likely than white students to be assigned in-school suspension and out-of-school suspension when their first disciplinary referral was for violations that were subjective in nature, such as Deliberate Classroom Disruption, Disorderly Conduct, Failure to Follow Directives, and Profanity/Vulgarity. For example, in school year 2010-2011, black students were nearly 3.5 times more likely than white students to receive out-of-school suspension for Profanity/Vulgarity."
Under the final resolution agreement reached last week, the District agreed to:
- Ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school;
- Collaborate with experts on research-based strategies designed to prevent discrimination in the implementation of school discipline;
- Provide students who engage in disruptive behaviors with support services designed to decrease behavioral difficulties;
- Review and revise the disciplinary policies, and implement disciplinary practices that will effectively promote the fair and equitable administration of discipline;
- Provide training for staff and administrators on the disciplinary policies, and implement programs for students and parents and guardians that will explain the district’s disciplinary policies and behavioral expectations;
- Effectively address school climate issues;
- Improve the disciplinary data collection system in order to evaluate discipline policies and practices.
The full press release and resolution agreement is here. I believe this is the first discipline resolution reached since the Department's new discipline guidelines. Those guidelines seem to be reflected in this resolution, particularly the agreement to use less harsh and discriminatory alternatives to the current discipline policy.
Wednesday, February 26, 2014
The district court has issued a new opinion in Lewis v. Ascension Parish Sch. Bd., 2014 WL 556677 (M.D. La. 2014), a case involving allegations that the district discriminated in the rezoning of its schools. Like Spurlock v. Fox, 716 F.3d 383 (6th Cir.2013) and Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir.2011), the court in Lewis had to navigate the complex post-Parents Involved in Community Schools v. Seattle world, in which racial intent, racial classifications, and racial considerations all of different doctrinal relevance and potentially conflicted precedents.
The district court in Lewis had previously issued a summary decision granting the school district's motion for summary judgement, which was summarily overturned by the Fifth Circuit and remanded. The Fifth Circuit had intimated that the Third Circuit's holding in Lower Merion--that Justice Kennedy's opinion in Parents Involved was controlling and that assignment plans are subject to rational basis so long as they do not rely on individual racial classifications--was incorrect. The Fifth Circuit, however, indicated it need not reach those doctrinal question because certain factual issues needed to be addressed first.
In its new decision on remand, the district court offers what may be the most cogent post-Parents Involved analysis to date. Plaintiff's basic claim is that the district's new assignment plan segregates African Americans and provides them with unequal educational opportunities. The district court analyzes his claim based on three distinct doctrines. First, it asks whether a racial classification was employed in the assignment plan. If so, Parents Involved's strict scrutiny applies. Here, the court indicates there is no evidence of a racial classification. Awareness or consideration of race, alone, are insufficient to trigger strict scrutiny. Thus, the rational basis approach of Lower Merion would apply. On the one hand, this holding is another validation of districts' ability to voluntarily desegregate. On the other hand, the plaintiffs in Lewis were alleging segregation and, thus, this court makes clear that those claims still must meet the higher burden of Village of Arlington Heights v. Metro.
Second, the court analyzes the disparate impact of the plan and the extent to which it potentially gives rise to a claim of intentional discrimination per Arlington Heights. It finds that the assignment plan does.
Third, the court analyzes the school district's consideration of racial demographics, etc., in drawing the assignment zones. The court finds that these considerations, along with the impacts, create a triable issue of fact as to whether intent existed. The Court elaborated:
Here, the School Board also does not contest that the majority of the non-white students in the District are in the East Ascension High School feeder zone and that the majority of the white students in the District are in the Dutchtown High School and St. Amant High School feeder zones. With regard to the factors considered by the School Board when it adopted Option 2f, the School Board does not contest that its members considered race and socioeconomic status when they developed, evaluated, and adopted Option 2f. Unlike the students in Lower Merion, non-white and white students in the District have each been affected by Option 2f (i.e. assigned to different schools). Indeed, the School Board does not contest this fact. Further, the School Board does not contest that Option 2f assigns all students to schools based on their geographic location.
Unlike the court in Lower Merion, this Court is unable to consider all of the evidence presented until after a full trial on the merits. See Lower Merion, 665 F.3d at 542. However, given the evidence presented here, context of this matter, and factors considered by the School Board when it adopted Option 2f, the Court concludes that Varando and Child B are, in fact, similarly situated to white students in the Dutchtown High School and St. Amant High School feeder zones. Accordingly, the School Board's request that the Court dismiss Lewis' remaining Equal Protection claim on this basis is DENIED.
In short, the district court agreed with Lower Merion (and rejected plaintiffs argument for applying strict scrutiny), but found there are sufficient facts on which discriminatory purpose could be inferred (which would trigger strict scrutiny) and set the case for trial.
Thursday, February 6, 2014
The Second Circuit Court of Appeals in Gulino v. Board of Educ. of New York City School Dist. of City of New York, 2014 WL 402286 (2014), affirmed the district court's holding that the school board “'can be subject to Title VII liability for its use of'” the Liberal Arts and Sciences Test (“LAST”) and that the LAST violates Title VII's disparate impact provisions because it was not properly validated." The district court had also "denied in part the Board's motion to decertify the previously certified class in light of the Supreme Court's intervening decision in Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011); and (3) held that the defense to claims of disparate treatment under Title VII recognized in Ricci v. DeStefano, 557 U.S. 557 (2009), does not apply to claims of disparate impact." The Court of Appeals also affirmed those holdings. In short, the lawsuit by African American and Latino teachers, challenging the disparate impact that state testing requirements have on them, will move forward, and they can move forward as a class. This holding is particularly satisfying for plaintiffs' attorneys, in general, given the barriers presented by Wal-mart and Ricci to class action discrimination claims. This plaintiffs' class survived both.
Wednesday, February 5, 2014
Wendy Parker’s new article, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Fla. L. Rev. 1871 (December 2013), offers a unique perspective on the Court's holding in Parents Involved and other recent race cases. In particular, she frames the cases in such a way that they could be of benefit to civil rights advocates rather than just hindrances. Parker argues that the majority in Parents Involved changed the meaning of discrimination from substantive discrimination, which originated with the Warren Court, to process discrimination. Process discrimination occurs “from the process of different treatment, without proof of any attending substantive harm.” She also emphasizes that Fisher v. Texas was premised on process rather than substantive discrimination.
She theorizes that process discrimination, as an aggressive colorblind principle, can ultimately help plaintiffs of all races in discrimination suits because it allows plaintiffs to more easily show that their race was part of the decision that caused them harm. Prof. Parker illustrates this with a hypothetical:
Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing. Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.
My forthcoming article in a Fisher symposium frames Parents Involved and Fisher as a triumph of form over function, and bears a lot of similarity to Parker's. What she calls "process" I call "form," and what she call "substance" I call "function." In other words, we read the cases the same, but put different labels on them. The current conclusion of my paper, however, takes a different route than Parker. I conclude that the focus on form benefits whites and disadvantages minorities, primarily because the harm that typically falls on minorities is not explicit. Instead, the harms minorities suffer are often the result of the way the system functions. This type of harm escape judicial scrutiny under an analysis heavily weighted toward form.
Parker's article, however, would indicate that form over function is not all bad. Minorities just have to embrace the new paradigm and marshall it to their benefit in the same way opponents of affirmative action have--an extremely important and insightful point that I overlooked in my pessimistic analysis of the cases.
An earlier version of the paper is available here on ssrn.