Tuesday, September 24, 2013
A la the thesis of Diane Ravitch's new book, which I posted on yesterday, it is worth stepping back to consider what is really going on with the takeover of six Virginia schools. As LaJuana posted a few days ago, the state passed legislation creating the Opportunity Educational Institution, which grants this entity the power to take over schools that have failed to gain accreditation four years in a row. At least one district has filed suit arguing that the takeover violates the state constitution. Putting the constitutional issues aside for a moment, the persistant failure to meet accreditation standards suggests that these schools are in crisis, but are they? And if so, who is to blame?
The state's accreditation standards require elementary and middle schools to achieve the following pass rates: English – 75 percent or higher; Mathematics – 70 percent or higher; Science – 70; percent or higher; and History – 70 percent or higher. High schools are fully accredited if students "achieve pass rates of 75 percent or higher in English and 70 percent or higher in mathematics, science and history; and [a]ttain a point value of 85 or greater based on the Graduation and Completion Index (GCI)." (For further definition of the GCI see here). These flat and simple standards are the whole of the accreditation requirements.
One of the six schools in the state that has failed to meet this standard is Jefferson-Houston (formerly an elementary school, now a pre-k through 8 school) in Alexandria. The school rests on the edge of Old Town Alexandria, one of the DC area's most affluent neighborhoods. When I lived in the DC area, my home happened to be less than a mile from Jefferson-Houston. We didn't live in Old Town, but our son, had he been old enough, would have been assigned to Jefferson-Houston. The school's name also carries special meaning to me. Jefferson is in reference to Thomas Jefferson and Houston is in reference to Charles Hamilton Houston, former Dean of Howard Law School and the original architect of the NAACP's desegregation strategy.
Monday, September 23, 2013
Diane Ravitch has a new book out this week titled "Reign of Error: The Hoax of the Privatization Movement and the Danger to America's Public Schools." Ravitch does not appear to say American schools are excellent, but she argues that they are not in crisis and that the constant assertion that they are in crisis undermining them. In other words, the tail is wagging the dog in school reform. She also points out that we label students and schools as failing because we set unrealistic goals for them. This is not to say that we should set low goals, but that we can't expect students at severe disadvantage to achieve at the levels of privileged kids unless we first address those factors that make students disadvantaged. Likewise, it is not fair to compare our education system to Finland's--the top performing in the world--because Finland's poverty rate is only 5 percent whereas ours is about 7 or 8 times that rate.
Thursday, September 19, 2013
By a new era, I do not mean a forward looking or an improved era. I mean an era the state has not seen in decades. I mean an era that resembles the days before Brown v. Board of Education. LaJuana's post this morning contained a lot of news on Alabama, but the piece that struck me the most was the enormous decline in support for its schools and the push to amend its constitution in a not so good way.
My comparison to pre-Brown days is not meant to suggest that Alabama wishes to resegregate its schools--although I doubt race is irrelevant to the moves afoot in the state. It is a comparison to stark educational deprivation and inequality. The level of educational defunding in Alabama is mind-boggling and threatens to push the poorest and neediest schools--if not the entire state--into a class of their own, whose deprivations cannot be rivaled anywhere else in the country. On top of that, many wish to strip children of their constitutional right to education, something unheard of and unspeakable in this country for some time.
After accounting for inflation, the Center on Budget Priorities Report reveals a $1,200 decline in per pupil expenditures in Alabama between fiscal years 2008 and 2014. To put this number in local perspective, it amounts to a 20% decline in funding in Alabama. In other words, 1 out of 5 education dollars in the state is gone, or the money for 1 out of 5 children has vanished. To put this number in national perspective, in 2006, the Education Trust reported a national funding gap between the highest and lowest poverty districts of $1,300 per pupil. So in comparison, Alabama's funding shortfall turns the entire state into a similarly underfunded subclass. No matter where a student lives in the state, he or she might reasonably be treated as a poverty class that trails the rest of the nation. Moreover, these cuts come on top of the fact that Alabama already had one of the lowest per pupil expenditures in the nation, and distributed those funds among school districts in one of the most regressive ways in the nation. See School Funding Fairness Report. In short, awful is getting much worse in Alabama. In a high poverty, regressively funded school district in a state with an educational system in a subclass of its own, a new era of educational deprivation not seen in decades is a serious risk.
Wednesday, September 11, 2013
The Leadership Conference on Civil and Human Rights, along with the American Civil Liberties Union, Anti-Defamation League, Lawyers' Committee for Civil Rights Under Law, NAACP, National Women's Law Center, and Poverty & Race Research Action Council, just release their report on the United States’ Compliance with the International Covenant on Civil and Political Rights. The report is titled, Still Segregated: How Race and Poverty Stymie the Right to Education ( Download Still_Segregated2013). This report is a follow up to an earlier report. The report focuses on three major points: 1) persistent racial and socioeconomic segregation, inequity and discrimination; 2) inadequate court responses to inequity; and 3) inadequate policy responses to inequity.
Tuesday, September 10, 2013
The Wall Street Journal ran a story Sunday on the rising costs of attending public school. Things that once were free are increasingly coming with a price tag, like bus transportation, extracurricular activities, athletics, music class, debate club. Well, one might say, those are all extra things that go beyond the basics of education. But many schools go beyond charging for optional activities. A school in Colorado charges for foreign language class, math class, and advanced placement class. Some schools charge for textbooks.
I would hope and assume that there are waivers for low-income students, but I am skeptical that this solves the problem. There is already a huge socio-economic and racial gap in terms of who participates in enriched academic programs like AP classes. Placing a pricetag only reinforces that gap. Of course, this is to say nothing of the fact that these fees exist in states whose courts have held these children have a constitutional or fundamental right to education. The ACLU picked up on this idea in Michigan and brought suit to enjoin the fees. Fortunately, the district buckled before the beginning of the school year. Without concerted activism or litigation, however, few other districts seem poised to do the same.
Thursday, September 5, 2013
Now that school is back into swing, elementary and secondary schools are feeling the full brunt of the sequester, but not all schools are feeling it the same. Most of the federal money in public schools flows through Title I of the Elementary and Secondary Education Act. While my past work has critiqued the formulas through which these funds extensively for their failure to fully account for the effects of concentrated poverty, it is true that the money flows to schools based upon the number of poor kids they have. Thus, the more poor kids a district has the more money it is loosing under the sequester cuts.
Wealthy districts, of course, have poor kids too, so they are suffering cuts as well. But those cuts amount to smaller line items and those districts necessarily have more capacity to make up the difference. Whereas, other districts are loosing more money and have less capacity. MSNBC tells the story of the affluent Loudon County, Virginia, district where district officials say the cuts "meant hardly anything," but in Virginia’s Shenandoah Valley, things are pretty bad.
When Harrisonburg students went back to school in August, there were fewer teachers and staff to greet them: The district lost an English proficiency teacher, a school social worker, a Head Start teacher, and a teacher’s aide when sequestration cut $400,000 from the school budget, according to Harrisonburg school superintendent Scott Kizner. The cuts come to a district where 70% of students qualify for a free school lunch, and more than 40% speak English as a second language.
Friday, August 30, 2013
The San Francisco Chronicle is running an in-depth four part series on African American males in Oakland Unified School District. The articles chronicle real day life for the students both inside and outside school. It also include statistical data and analytical commentary. As the chart above reveals, there were more than twice as many African American men and boys killed in 2002 as there were college ready African American males. This college versus death comparison, while grim, pales in comparison to the incarcerated versus college ready data in Oakland.
To the school district's credit, it recognized the crisis and created a special department to address it, the African American Male Achievement Office, which has special classes and programs. Although the trend in improvement started before the formal creation of this office, the number of college ready African American males has tripled in comparison to the 2002 numbers and quadrupled in comparison to 2003. Sadly, the deaths among this group have stayed relatively steady, but those numbers are beyond the full control of schools. In other words, violence and death continue to surround these young men at an alarming rate, but the school district is doing a better of helping some defy the odds.
The full series is available here.
Wednesday, August 28, 2013
In a review of the 41 NCLB waivers that the Department of Education has granted, the Campaign for High School Equity finds:
that many states have failed to address clearly and fully the needs of our most vulnerable students. Some states, with the approval of the U.S. Department of Education, abandon a primary focus on subgroup accountability—a central tenet of NCLB—and weaken efforts to close achievement gaps and improve education for all students. Significant progress has been made under NCLB to ensure that the needs of all students—including underserved students—mattered; a school could not be deemed successful, regardless of overall performance, if a subgroup of students was struggling. Provisions of NCLB have ensured that the achievement of all students by subgroup was counted; school progress regarding improving achievement of subgroups of students was publicly reported, and when a school did not adequately improve student achievement for subgroups of students, an intervention was triggered to better support student success. While NCLB has many provisions that need revision, subgroup accountability provisions have shone a bright light on the achievement of all students and have ensured that the children who need it most get help. Yet, our analysis shows that several of the Administration’s approved ESEA waivers undermine subgroup accountability, instead of making it the central focus of statewide accountability systems.
Tuesday, August 27, 2013
Vouchers v. Desegregation: U.S. Department of Justice Seeks to Block Vouchers in Desegregating Districts
Louisiana Gov. Bobby Jindal spearheaded the expansion of the state’s voucher program from New Orleans to the entire state this year. He did not, however, bother to assess how the program might affect student assignment and enrollment in districts that are still operating under court orders to desegregate. Now, the U.S. Department of Justice has filed a motion in district court to block the application of the voucher program to those districts. The motion argues that students in at least 22 districts that are still under desegregation orders have received vouchers “without authorization from the appropriate federal court frustrates . . . .” Those vouchers “imped[e] the desegregation process in school districts operating under federal desegregation orders.”
Gov. Jindal responded on Meet the Press, stating
We’ve got a scholarship program. One hundred percent of the kids are low-income. One hundred percent of the kids are in failing schools—C, D, or F schools. Ninety percent of the kids are minorities. Eight thousand of those parents have chosen to take these dollars and send these kids to better schools, to other schools where they can get a better education, where it’s a better fit for their children. Now the Department of Justice, using the same rules that were there to prevent discrimination against minority children, is going after some of these parents and some of these kids and saying, ‘We don’t know that we want to allow you to make this choice. We want you to go to a federal judge.’
School choice advocates are also lambasting DOJ and the role this would play in impeding choice. They seem to ignore, however, that it would be impossible to enforce desegregation orders if districts and states were free to create exit options and exceptions that would undermine desegregation. In fact, various creative exit options, albeit race-neutral on their face, were a major stumbling block to the initial creation of integrated schools in the 1950s, 60s and 70s. Or, choice advocates assume that the voucher program will have no negative effect on the demographics of these school districts. Even if their assumption proves to be correct, it has always been standard procedure to verify the effect of new policies on student assignments in desegregating districts, rather than wait until after the fact when the damage is already done. While the state and districts are largely free to assign students, however, they see fit in “unitary” districts, there are constitutional constraints on other districts for good reason.
Gov. Jindal's full interview is here.
Monday, August 26, 2013
As mentioned a couple of weeks ago, the UNC Center for Civil Rights is representing a group of parents in Pitt, NC, who allege that the district has taken steps that violate its affirmative duty to desegregate. In reviewing their proposed findings of fact, the crux of their claim is that the school district had three student assignment options on the table in 2008 and choose the most segregative of the three. Plaintiffs evidence at trial indicates that the district chose the segregative plan because, during its previous student reassignment plan in 2001 or so, white parents had objected to sending their children to some schools with substantial percentages of minority students and the district sought to avoid this reaction this time. In other words, the plaintiffs allege that the district is segregating students to avoid white flight and that white flight is not a legitimate factor upon which to assign students.
Friday, August 23, 2013
The Goverment Accountability Office had been tasked with comparing the enrollment of English Language Learners (ELLs) in traditional public schools versus charter schools. Last month, it issued a report finding that it could not make the comparision because the "only available data on school-level ELL enrollment were unreliable and incomplete. Specifically, for over one-third of charter schools, the field for reporting the counts of ELLs enrolled in ELL programs was left blank. These blank fields cannot reliably be interpreted to mean that the charter schools did not have ELLs enrolled." This national number, however, grossly understates the problem in many states. Over 60% of charter schools in Idaho, Lousiana, Maryland, Michigan, Minnesota, Missouri, Pennsylvania, South Carolina, Wyoming, Kansas, New Hampshire, New Jersey, New York, and Ohio failed to provide ELL data. The GAO also emphasized that this data failure in regard to ELL, while significant in an of itself, is likely an indicator of overall problems in data collection and reporting for charter schools.
Thursday, August 22, 2013
I can't decide whether it counts as news, since data has shown us for some time that poor and minority students are exposed to unequal educational opportunities and conditions, but a new poll out confirms that minority and poor parents are well aware of the unequal conditions they suffer. Yet, minority parents are interestingly optimistic citing that their children are receiving a better education than they did. Cribbing from the AP story by Philip Elliot and Jennier Agiesta:
Minority and low-income parents are more likely to see serious problems in their schools—from low expectations to bullying to out-of-date technology and textbooks—than those who are affluent or white, according to an Associated Press-NORC Center for Public Affairs Research Poll.
Overall impressions of the nation's schools and teachers are similarly positive among all groups of parents, but deep demographic differences emerge in the details of how parents see teachers, schools and even their own roles in their children's education.
The divisions fall along the familiar fault lines of income, education and race that drive so much of American life. In many cases, it's as though parents are looking at two very different sets of schools in this country.
Most parents say the school their child attends is high-quality and rate their children's teachers positively. White parents are only slightly more likely than others to give their child's school high marks, and parents of all races give their local schools similar ratings for preparing students for college, the workforce, citizenship and life as an adult.
A majority of parents say their children are receiving a better education than the one they received, but blacks and Hispanics feel more strongly than whites that this is the case. The poll also shows minorities feel they have a greater influence over their children's education.
And the ways parents assess school quality and the problems they see as most deeply affecting their child's school vary greatly by parents' race, education and income level.
Wednesday, August 21, 2013
A new article by Jared S. Buszin, Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy, 62 Emory L.J. 1613 (2013), applies state constitutional education rights to local district practices. His first premise is that school finance litigation and its focus on money has not made a significant difference in equalizing educational opportunities and certainly has not closed the achievement gap. His second premise is that school finance principles should apply to local district policies just as they do state wide policies. I would quible some with the breadth and implications of his first claim, but agree entirely with his second claim. In fact, I devoted significant time to the same premise in Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012), because my entire legal argument that state constitutions placed limits on local student assignment policies hinged on it.
Buszin, however, puts the premise to a different task. He argues that access to quality teachers is the most important "skills based education input" available to schools and that the "last in first out" rule of teacher layoffs works to protect seniority and ignores teaching quality. He points to examples like a teacher of the year being layed off and analyzes a trial court decision in California that enjoined a district's teacher layoff policy as interfering with students' fundamental right to education. He then posits how the theory might apply in other states.
In the end, I believe Buszin is a little too dismissive of the importance of money and the impact of school finance litigation, and I am a little leary of pitting student rights against teacher rights given the attack by conservatives and some moderates on teachers over the past two or three years (even though I am sympathetic to his point about student rights coming first). Those concerns, however, are overshadowed by a strong and creative argument for extending school finance precedent to new contexts, and his ability to apply it to a very precise context. For those interested in analogous arguments, it is worth the read.
Thursday, August 1, 2013
I just came across a new article by Kamina Aliya Pinder that synthesizes the past uses of structural injunctions in education reform and responds to the reluctance of many courts to intervene in education battles. Cribbing from her introduction, the article
examines the use and potential of the structural injunction in cases that implicate issues of education access, adequacy, and achievement in the paradoxical “post-racial” era. Originating in school desegregation cases, this powerful judicial remedy compelled public institutions to address constitutional wrongs through systematic reform. The structural injunction played an essential role in desegregation at the federal level and, albeit not typically referred to as “structural injunction” at the state level, an equally important remedial role in state school finance litigation. Yet, fears of judicial overstepping and pursuit of race-neutral remedies have greatly curtailed its use.
Wednesday, July 24, 2013
By now, many of you have probably heard or read about the new study on social mobility, which is said to be the most comprehenisve study of it kind to date in the United States. The headline of most stories is the role that zipcodes play in social mobility. In short, where a child grows up will have a significant impact on his or her ability to climb out of poverty or stay in the middle class. The more important question, however, is why geography matters. The research examined various factors in the attempt to isolate the differing mobility rates and found that:
Although tax policies may account for some of the variation in outcomes across areas, much variation remained to be explained. . . . [W]e found significant correlations between intergenerational mobility and income inequality, economic and racial residential segregation, measures of K-12 school quality (such as test scores and high school dropout rates), social capital indices, and measures of family structure (such as the . . . fraction of single parents in an area). In particular, areas with a smaller middle class had lower rates of upward mobility. In contrast, a high concentration of income in the top 1% was not highly correlated with mobility patterns. Areas in which low income individuals were residentially segregated from middle income individuals were also particularly likely to have low rates of upward mobility. The quality of the K-12 school system also appears to be correlated with mobility: areas with higher test scores (controlling for income levels), lower dropout rates, and higher spending per student in schools had higher rates of upward mobility. Finally, some of the strongest predictors of upward mobility are correlates of social capital and family structure. For instance, high upward mobility areas tended to have higher fractions of religious individuals and fewer children raised by single parents. Each of these correlations remained strong even after controlling for measures of tax expenditures. Likewise, local tax policies remain correlated with mobility after controlling for these other factors.
A New York Times story reported that "Lawrence Katz, a labor economist who did not work on the project, said he was struck by the fact that areas with high levels of income mobility were also those that established high school earliest and have long had strong school systems."
If I read the study's underlying data correctly, the local high school dropout rate has three times the effect on social mobility as does tax policy, and local achievement test scores have two and a half times the effect on social mobility. Although not as heavily reported, the level of local segregation also had a significant impact on mobility. But to be clear, the data showed family structure (divorce rate, single parents, and teen mothers) to have the largest impact on social mobility, though only slightly higher than the drop out rate.
My only quibble with the study is its labels. According to the study's authors, chivement test scores and drop out rates are proxies for school quality. As school finance litigation and educational social science have demonstrated, those factors are relevant but school quality cannot be reduced to them. High achievement test scores are also largely a function of underlying student demographics and segregation. It is not clear to me how the current study controlled for this. If it didn't control for it, then achievement test scores alone don't really signify school quality. If it did control for underlying factors, then the study may have a point.
I am more inclined to recognize drop out rates as having more singular importance (even though the same issues of underlying demographics are relevant). After all, if a school cannot keep its students enrolled and graduate them, I believe the school is not doing all that it should. A better school would do more. With that said, high school drop out rates speak more directly to the need for drop out prevention programs than general school improvement programs. So again, I would hesitate to treat drop out rates as a general measure of school quality.
Regardless, the bottom line still seems to be that schools matter. They are the most important public lever we have for creating opportunity. And other policies, like taxes, look like red herrings. They certainly can ease the pain on struggling families, but they are insufficient to fundamentally change children's futures.
Tuesday, July 23, 2013
For the past couple of months, Reverand William Barber, president of the NC NAACP, has helped organize and lead a diverse group of people to protest what they call a legislative war on poor people. They peacefully march to the state house with sign and songs of protest, until they are eventually arrested. When the so called war on poor people moved to education, the protesters decided they spend the night at the state house. When 70 of them (with sleeping bags and toothbrushes) refused to leave at closing time, they were again arrested.
These tensions come out of a shift in political power in the state. Starting during the fall elections of 2010, North Carolina went through a transition from complete democratic control to complete republican control. Republicans initially took the state house in 2010 and in 2012 they took the governor's mansion as well. Since then, agressive legislation aimed at scaling back everything from social services to tax credits that benefit low income individuals have been proposed and sometimes passed. While North Carolina has traditional been moderate in most respects and progressive in education, the new majorities see their mission as rolling back the status quo.
Now that the legislative agenda now includes cuts to public education, the state superintendant of education released this statement:
For the first time in my career of more than 30 years in public education, I am truly worried about students in our care. With this budget, North Carolina has moved away from its commitment to quality public schools. I am disappointed for the children in our state who will have fewer educators and resources in their schools as a result of the General Assembly’s budget.
A bright spot in this budget is the end of the discretionary reduction. By ending this budgeting strategy, North Carolina is being more transparent and even-handed in our budget processes and providing relief for districts that have struggled to locate funds to return to the state coffers.
While the end of the discretionary reduction represents a move in the right direction, I am troubled by the lack of progress on teacher pay. Having an excellent teacher for every classroom is essential. North Carolina teacher pay is dismal compared to the nation and to all of our bordering states. Starting teachers can earn $10,000 more per year in some of our neighbor states, while a teacher with six years of experience will make the same as a first-year teacher here in North Carolina. Why should these teachers stay in our state? Add to that the end of pay increases for master’s degrees beginning in 2014-15, and there is even less incentive to work in North Carolina’s public school classrooms. We must quit talking about the goal of bringing our teacher pay to the best in the nation and start putting action behind those words.
There are many other details that are troubling. I am concerned that this budget will cost schools thousands of teacher and teacher assistant positions. Our already-large class sizes will continue to grow.
This budget fails to provide resources for textbooks, instructional supplies and technology that our schools desperately need to remain up-to-date, especially as our student population grows.
North Carolinians want strong public schools. Polls show it. My interactions with parents and students show it. Our own state leaders claim it. But this budget doesn’t deliver it. Teachers are working as hard as they can. Materials and supplies are wearing thin. Classrooms are crowded, and there are fewer adults in each school today than there were five years ago but there are more students than ever across our state. The rest of the nation is not sitting still, and neither are our competitors across the globe. Our children deserve more support. Their futures depend on it.
I admit to not following the details of the legislation closely, but I have followed North Carolina's school finance litigation closely for years. If things are as bad as the superintendant and protestors make it seem, I wonder how the state can possibly defend its actions once they are eventually raised in court. The state has an ongoing obligation to deliver a sound basic education to all students, including a duty to remedy past findings that the state was failing to deliver such an education. Then again, maybe this new legislature is less impressed by courts and constitutions than others.
For more on the protest story, see here.
Tuesday, July 16, 2013
The Huffington Post blog Black Voices today focuses on the massive school shutdowns in Chicago and Philadelphia that Professors Black and Holley-Walker have been covering on this blog here and here. In addition to discussing the impact of the school closings in New York City, Chicago, Philadelphia, Washington D.C., and Sacramento, writer Shaun Ossei-Owusu (ABA Doctoral Fellow) shares this graphic from the National Opportunity to Learn Campaign to give another perspective to the "dry numbers":
Wednesday, July 10, 2013
IN LIGHT OF FISHER: WHY THE BLACK IMMIGRANTS SHOULD BE DISTINGUISED FROM ASCENDANT BLACKS FOR ADMISSIONS PUROPOSES
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials and Black Immigrants (anyone with a foreign-born black parent) will soon constitute the overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. Earlier this week, I discussed how the changes in the way the Department of Education requires educational institutions to collect and report racial and ethnic data that went into effect in the fall of 2010 requires a new discussion about how to treat Black Multiracials in the admissions process. In this one, I want to argue that differences between Black Immigrants and Ascendant Blacks (those with two native-born parents who were considered black as defined by the one-drop rule) means that these two groups should not be treated alike for purposes of affirmative action.
In 1960, there were only 125,000 foreign-born blacks, who made up 0.7 percent of the black population in the U.S. In 2010, however, there were almost 3,600,000 of them and they made up 8.8 percent of the black population. Foreign-born blacks also have about 1 million U. S.-born children.
Black Immigrants share the commonality of being descendants of Africa with Ascendant Blacks. Nevertheless, there are a number of very important economic, social and cultural differences between the two groups. To begin with, the family income of foreign-born blacks is about 25 percent higher than that of native blacks. In addition, foreign-born blacks are far more likely to have college degrees than native blacks. Indeed, Africans are almost two and half times more likely to have college degrees than native blacks. The largest differences between Black Immigrants and Ascendant Blacks, however, may be in their socio-cultural experiences.
In Justice O’Connor’s opinion in Grutter, she explained why it was possible for colleges and universities to consider race and ethnicity in the admissions process. She stated:
“[j]ust as growing up in a particular region or having particular professional experiences is
likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. . . . By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”
Clearly, the history of discrimination that justifies the use of racial classifications that O’Connor referred to was that which took place in the United States. This seems obvious. After all, no one seriously contends that selective higher education programs could justify affirmative action in the United States to target the effects of oppression in other parts of the world, including, for example, the exploitation of Koreans in Japan, the negative effects of untouchability on Dalits in India, or British imperialism in Africa or the New World. Thus, it is the experiences of individuals from underrepresented minority backgrounds derived from our nation’s struggle with racial inequality that explain why race and ethnicity can be considered. These experiences also explain why these groups are likely underrepresented in the first place.
There is no question that foreign-born blacks have their negative experiences with racism in the United States. Nevertheless, having grown up and matured in their countries of origin, Black Immigrants who come to the U.S. as adults do not have extensive years of experiencing the impact of the historical discrimination encountered by blacks in the United States. In immigrating, Adult Black Immigrants encounter conflicting sociological forces. They come to a land with a long history of voluntary immigration. Yet, they also come to a place where their race places them at the bottom of a racial hierarchy.
As voluntary immigrants, Adult Black Immigrants tend to have a more optimistic and positive outlook on their conditions in American society than Ascendant Blacks. For many Adult Black Immigrants, the racism and discrimination they encounter is part of cost to obtain the benefits they accrue from choosing to come to the U.S. Since most foreign-born blacks come from countries with substantial black majorities, race does not play an important role in their psychological and emotional development. Coming from countries with substantial black majorities also means that Adult Black Immigrants will be use to seeing blacks wield significant economic, political and educational authority. This may provide them with the empowering expectation that success in society is not tied to race, an idea that Ascendant Blacks with their experience growing up in the United States would find difficult to embrace. Since Adult Black Immigrants mature in their home country, many of them do not bring with them to the United States the strong desire to engage in the fight against the racial injustice here. This is something that was plain to me during my travels through South Africa, where I was the foreign-born black immigrant. While I was subjected to the same race discrimination that black South Africans encountered, I had a huge emotional and psychological distance from the experience of racial oppression there.
The term “Black Immigrants,” includes foreign-born blacks who immigrated as adults, as well as those who immigrated as minors and the children of foreign-born blacks. These latter two groups come of age in the United States and, thus, are exposed to more of the historic experience of being an underrepresented minority with a history of discrimination than their parents. Nevertheless, their foreign-born parent(s) and their foreign heritage are likely to have a very important impact on their experiences of race in the United States. Simply put, it is wrong to equate the experience of history of discrimination in the United States that Ascendant Blacks have undergone with that which Black Immigrants experience. To do so, devalues the experiences of Ascendant Blacks.
Last year, plaintiffs challenged an Arkansas statute that permitted students to transfer to schools outside their district, but limited the students who could transfer. In particular, the statute indicated that:
No student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's race except in the circumstances set forth in subdivisions (f)(2) and (3) of this section
In Teague ex rel. T.T. v. Arkansas Bd. of Educ., 873 F.Supp.2d 1055 (W.D.Ark. 2012), the court applied strict scrutiny and found that the state had a compelling interest in avoiding racial isolation but that the statute was not narrowly tailored. Thus, it struck down the statute.
The legislature then amended the statute. The new statute effectively permits all students to tranfer, but allows districts that are under desegregation orders to opt out of the transfer program, so as to prevent transfers from interfering with their other obligations under law. Another set of plaintiffs have challenged this new statute. Defendants filed a motion to dismiss based on standing and jurisdiction, which the court granted in part and denied in part. Stevenson v. Blytheville School Dist. No. 5, 2013 WL 3324050 (E.D.Ark. 2013). The court did not address any substantive issues, but for the meantime has permitted the case to move forward.
Tuesday, July 9, 2013
IN LIGHT OF THE FISHER DECISION: WHY THE ADMISSIONS PROSPECTS OF BLACK MULTIRACIALS MUST BE ADDRESSED
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials (those individuals with one non-black and one black parent, as defined by the one-drop rule) and Black Immigrants will soon constitute the
overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. I suggested that in light of the Supreme Court’s decision in Fisher, now is the time to turn our attention to this issue. In this blog, I want to discuss how conditions have changed with regard to the admissions process of Black Multiracials that makes it imperative to have such a
discussion, regardless of how the ultimate treatment should be worked out.
Race is a socially constructed concept. Nowhere is this more obvious than when dealing with the historical issue of the treatment of mixed-race individuals with some African ancestry in the United States. The current recognition of Black Multiracials as distinct from other blacks is an emerging and relatively recent phenomenon. For virtually the entire 20th century, the one-drop rule determined who was black. As late as the 1960 census, there was no separate category for Latinos. They were classified based on their race, not their ethnicity. Thus, at the time that affirmative action policies were being formulated, 99.4% of Americans were considered either black or white. The one drop rule allowed everyone in American society to know virtually any person’s
race based on their physical appearance. As a result, race was a socially ascribed trait, not a characteristic that resulted from self-identification. As long as American society socially constructed race in this way, regardless of the feelings of mixed-race blacks, simply put, there were no Black Multiracials.
During the late 1980s and early 1990s, a multiracial movement developed that sought to add a separate “multiracial” category to all state and federal forms. According to Kim Williams who
studied this movement, most of the leaders were white women married to black men who did not feel that it was right to identify their children as black. In response to these complaints, in 1997, the federal government adopted new regulations for the collection and reporting of racial and ethnic data (1997 Standards). The 1997 Standards specified that self-identification is the preferred method to determine a person’s race. While the government rejected the inclusion of a “multiracial” category, it did requires that those collecting racial and ethnic data use forms that provide individuals with the opportunity to answer whether they are Hispanic/Latino and then to designate all of the racial categories that apply to them from a list that must include American Indian or Alaska Native; Asian American; Black or African American; Native Hawaiian or Other Pacific Islander; and White. The 2000 and 2010 censuses were conducted consistent with these requirements.
The 1997 Standards also require that other federal agencies adopt new regulations for collecting and reporting racial/ethnic data that comply with it. The Department of Education (DOE) corresponding regulations went into effect in the fall of 2010 (the Guidance). Under the Guidance, individuals who indicate that they are Hispanic/Latino are reported to the DOE as such, regardless of which racial categories they check. Non-Hispanic/Latinos who indicate black and at least one other racial category are included in a new “Two or More Races” category, along with other multiracials. In other words, self-identified Black Multiracials are no longer counted by educational institutions as black. The federal government has abandoned the one-drop rule and forced public and private educational institutions to do so as well.
The 1997 Standards and the Guidance reject the notion that race is a socially ascribed characteristic. Rather they make self-identification the preferred means in which to determine a
person’s race. This change alone may not have been enough to allow individuals with some black ancestry to truly self-identify their race. However, the substantial influx of immigrants of color from Asia, Latin America, the Middle East and North Africa, over the past 50 years altered the complexion and the facial features of American society. In 1960, those who were neither black nor white made up less than 1 percent of the American population. In 2010, they made up almost 24 percent, almost double the percentage of black population. As a result of this new wave of immigrants, the application of the one-drop rule no longer provides a reliable approach to
determine the race of a large number of those who used to be socially ascribed as black. With respect to racial identity, as the 21st century unfolds blacks with lighter skin complexions and racially ambiguous features increasingly encounter the question from others, “what are you?” Thus, the massive new immigration of people of color from the rest of the world helped to
enhance the ability of Black Multiracials to self-identify as multiracial as opposed to black..
As we move beyond the Supreme Court’s decision in Fisher, for purposes of affirmative action it is not whether Black Multiracials self-identify as black or with all of their racial categories that
is significant. What is important is the demise of the one-drop rule, coupled with the ability of individuals to self-identify their race. These developments have created the social reality that Black Multiracials can now choose a racial identity other than “Black or African American.” Because Black Multiracials can choose their racial identity, admissions policies and procedures based on their inability to do so, like affirmative action, need to be adjusted to take into account this new reality.