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.
Tuesday, July 2, 2013
Over the past five years, I have mentioned the issue several times. I have discussed this problem with officials of the American Bar Association, the American Association of Law Schools and the Law School Admissions Council. See here. In each of those discussions, I have emphatically speculated that if current trends continue, first and second generation black immigrants (Black Immigrants) and mixed-race blacks (Black Multiracials) will come to make up 80% of the black students in most law schools throughout the country by the year 2020. While all of the officials agreed that this was a distinct possibility, the most disconcerting thing is that none of them believed that anything should be done about it!
Many of us who are staunch supporters of public education do so because of our strong belief that education is the best (or perhaps, the only) way to address the problems of large numbers of poor, urban minority blacks. While we advocate for improvements in K-12 urban education, we see this as only one part of the pipeline necessary to achieve the ultimate goal of a large percentage of these students graduating from four year colleges and universities and, for many, successfully completing graduate programs. For educational pipeline believers, affirmative action is essential. It allows us to know that students most victimized by our society’s history of racism can graduate from selective higher education programs. It is with this preface that I want to discuss the changing racial and ethnic ancestries of blacks attending selective higher education programs.
We were first introduced to this issue by Harvard professors Lani Guiner and Henry Louis Gates in the same month that the Supreme Court decided Grutter. They pointed out that Black Immigrants and Black Multiracials comprised two-thirds of Harvard’s black undergraduate population. Following the “Harvard Revelation,” a 2005 article in Diverse Issues in Higher Education noted the findings of a Princeton study of the “black” students who in 1999 entered twenty-eight selective colleges and universities, essentially the same ones William Bowen and Derek Bok examined in Shape of the River. The study revealed that 41 percent of these black students were either Black Multiracials or Black Immigrants. A follow up study concentrated just on the presence of Black Immigrants. It discovered that Black Immigrants made up 35.6 percent of the blacks in the ten most selective institutions and 40.6 percent in the four Ivy League schools. According to a 2005 statement by Dr. Michael T. Nettles, Vice President for Policy Evaluation and Research at the Educational Testing Service, “[i]f Blacks are typically 5 percent and 6 percent of the population at elite colleges, then the representation of native United States born African-Americans might be closer to 3 percent.” In regards to Black Multiracials, a 2007 study of 31 of the most elite private colleges and universities in the country that compose the Consortium on Financing Higher Education disclosed that Black Multiracials made up 23 percent of the black students at those institutions. To demonstrate how widespread the changing racial ancestry of blacks benefiting from affirmative action has become, statistics from the admissions office of Indiana University-Bloomington showed that Black Multiracials comprised 18.7 percent of the black students in the combined incoming freshman classes for the fall of 2010 and 2011.
No matter how over represented the above evidence suggests Black Multiracials and Black Immigrants are among black students, those numbers understate the problem. The percentages of both groups among blacks of college age will skyrocket between 2010 and 2020. For example, the percentage of blacks in the country who are foreign-born has increased from 1.1 percent in 1970 to 4.9 percent in 1990 to 8.8 percent in 2010. According to the 2010 census, at that time the percentage of mixed-race blacks among blacks age 15 to 19 was 6.5 percent. However, their percentage increases to 13.7 percent for those between the ages of 5 and 9. Thus, if current enrollment trends continue, well before the expiration of the 25 year window for affirmative action provided by Justice O’Connor in her opinion in Grutter, a virtual prerequisite for blacks attending selective higher education programs will be that they must have either a foreign-born black or non-black parent.
The problem I am alluding to is not that Black Immigrants and Black Multiracials benefit from affirmative action. Surely, a strong argument can be made that they should receive some positive considerations in the admissions process. The problem is that selective higher education institutions, including our own law schools, are in the process of excluding the black students with two native-born parents who were considered black, as defined by no longer applicable one-drop rule. I call this racial/ethnic group of blacks, “Ascendants” because of this group’s ascendency out of slavery and segregation. The Ascendants were the ones responsible for affirmative action. But, for them, the Fisher decision creates no sigh of relief.
One of the conceptual problems with the concern about the disappearance of Ascendants I raise is that it requires us to draw racial and ethnic distinctions among blacks. Historically, American society has largely been oblivious to such distinctions. In addition, over the past 100 years the African-American Community has been very hostile to efforts to divide the Community. In the following two entries, I want to discuss why it now makes sense to draw distinctions between Black Immigrants, Black Multiracials, and Ascendant Blacks for the limited purposes of affirmative action.
Sunday, June 30, 2013
Vinay Harpalani has posted his early take on Fisher v. Univ. of Texas at Austin at his institution's website, IIT Chicago-Kent Faculty Blog. Below is an excerpt of Professor Harpalani's assessment of the decision:
Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger in place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous.... Moreover, because most other states do not have such plans such as the Top Ten Percent Law, they are not in the same boat as the University of Texas, and today’s ruling does not compel universities in those states to do anything differently.
Thanks to Professor Harpalani for sending along this post to join Education Law Prof's ongoing conversation about Fisher, starting with Derek Black (South Carolina) and John C. Britton (UDC).Professor Harpalani's comments were originally posted on the American Constitution Society (ACS) blog. He is also quoted here on Fisher in the New York Times.
We welcome contributions from advocates and scholars as we continue to examine what Fisher means for diversity in public higher education.
Wednesday, June 26, 2013
As most know by know, the Supreme Court struck down section 4 of the Voting Rights Act yesterday in Shelby County v. Holder. That section's formula defines which states and jurisdictions must submit voting changes to the Department of Justice for preclearance. The preclearance process ensures that potentially discriminatory changes in voting laws are reviewed and revised before they go into effect. As a result of the Court's decision, there are no longer any jurisdictions subject to preclearance.
This is a big deal for many school districts. School board elections and racial equity go hand in hand. In fact, the effectiveness of school desegregation orders was often as much a product of school board elections as it was court orders. Likewise, current efforts at voluntary desegregation and diversity easily shift from one school board election cycle to the next, as seen so obviously during the last 6 years of elections in Raliegh, NC. The saving grace in so many of these instances was that changes in school board election procedures (poling places, single member districts v. at large districts, district boundaries) in covered jurisdictions (mostly the South) had to be cleared through DOJ. This outside check was instrumental in allowing African Americans and other minorities to get a fair shot at electing the school board, which meant fair representation on the board. That check is now gone. To be clear, citizens still have the right to sue under section 2 of the Voting Rights Act, but the burden of demonstrating a violation now falls on individual, whereas the burden of proving fairness once fell on the state and local jurisdictions. Only time will tell what this means for desegregation, diversity and voluntary integration in the South, but I know it makes a lot of people nervous.
Thursday, June 20, 2013
A new report by Education Sector details changes in the the achievement gap as measured by the National Assessment of Educational Progress. Between 2003 and 2011 on 4th and 8th grade reading and math, the report finds that all students combined have shown a 20 point gain. Moreover, the subgroups of White, Poor, African American, and Latino students all showed gains. Starting from a lower baseline to begin with, however, African American, Latino, and Poor students all posted larger gains than Whites. These groups still achieve at a significantly lower level than Whites, but the gap closed. This is all encouraging news.
The discouraging news is that the gap between the students of some states has widened. For instance, the gains in New Jersey and Maryland tripled or quadrupled the gains of students in about 10 other states. Thus, while the national racial and poverty achievement gaps have shrunk, the gap between states has grown enormously. The report characterizes these diverge realities as follows:
Let us put this new state achievement gap in perspective. The U.S. has a notorious and persistent difference in achievement between black and white students. Rooted in slavery, segregated schools and a century of social and economic discrimination, the black-white achievement gap is depressingly large. . . . In 2011, white students scored 1044 on our composite of four NAEP assessments; black students totaled 939—a 105 point gap. Recalling that students improve about 10 points per grade level per test, a gap of 105 points translates into two-and-a-half years of achievement. Put another way, a white student midway through sixth grade achieves at about the same level as a black student at the end of eighth grade. In a nation founded on the principle of equality, that is an unacceptably large gap in achievement.
And the nation has long sought to reduce it. A decade before ESEA was passed, the Supreme Court declared separate but equal schools unconstitutional in Brown v. Board of Education. Research has looked hard for solutions. But a gap that took two centuries to establish has proven stubbornly resistant to improvement. Over nearly 40 years, by our composite measure, the gap has narrowed by only 25 points—about a half point per year.
All of which makes the new gap between the states alarming. . . . In just eight years, the states have created an achievement gap that is about 60 percent of the magnitude of the racial achievement gap—that took two centuries to establish. In just eight years, the states have created an achievement gap that is nearly 250 percent the magnitude of hard won reductions in the racial achievement gap over 40 years.
Because student achievement is so heavily influenced by family, community, and other factors beyond the reach of the schoolhouse, it is hard to find schooling making a substantial difference in student achievement. But that is precisely what the state NAEP data indicate. Achievement in some states has been soaring; achievement in other states has been lagging. And the pace of differentiation rivals, indeed exceeds, that associated with America’s deepest social division.
The report also goes on to discuss NCLB waivers and the role their relevance to achievement gaps moving forward.
Monday, June 17, 2013
In Doug C. v. State of Hawaii Dep’t of Education, the Ninth Circuit held last week that the Hawaii Department of Education violated the Individuals with Disabilities Education Act (IDEA) by holding a student’s annual individualized education program meeting without the participation of a parent. In the case a school was attempting schedule an IEP meeting for Spencer C., which the father (Doug C.) had rescheduled several times. (The court says that Spencer C.'s mother found the IEP meetings to stressful to attend.) The school got fed up and held the IEP meeting without either of Spencer C.'s parents. The Ninth Circuit found that Hawaii's Department of Education denied Spencer a free appropriate public education by holding the IEP meeting without his father even though the parent did not affirmatively refuse to attend. The circuit court has remanded the case for the district court for further proceedings about Doug C.'s entitlement to tuition reimbursement under IDEA. Read the court's opinion here.
Also last week, a panel of the Ninth Circuit Court of Appeals heard arguments in two related cases that challenge the Hawaii Department of Education's refusal to provide special education services for students up to age 22. In A.D., ex rel. L.D. v. Department of Educ., Hawaii, No. 12–00307 (D. Haw. Oct. 25, 2012), the 20-year-old plaintiff sought to remain at an academy that he had attended since age seven. In the other case, R.P.-K. ex rel. C.K. v. Department of Educ., Hawaii, No. 10–00436, (D. Haw. March 30, 2012), class action plaintiffs want Hawaii DOE's to provide special education services in its high school equivalency program. Both suits stem from the conflict between IDEA and a Hawaii statute that bars students from attending public school if they are 20 or older on the first day of the school year. Hawaii allows students older than 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten adult community schools, but does not provide special education services in those programs. IDEA requires states to provide special education and related services in public school until a student reaches age 22, but exempts states that do not provide general education services past age 18. The Ninth Circuit will be asked to decide if Hawaii violated IDEA when because it ends special education services at age 20, even though non-disabled students between the ages of 20 and 22 may be receiving "the functional equivalent of a secondary school education” in adult community schools.
Attorneys for Hawaii counter that IDEA applies to school-age children in traditional secondary schools, and adult community diploma programs are not covered under IDEA’s definition of public education. Separate district courts agreed with Hawaii’s position, finding that the plaintiffs failed to show that a reasonable accommodation existed that would allow them to benefit from adult education programs. The district courts also rejected the plaintiffs’ Americans with Disabilities Act and Rehabilitation Act claims.
The cases will be watched closely, as one district court in Hawaii found in 2009 that the state does not consistently follow its stated practice of terminating students’ education at age 20. In B.T. ex rel. Mary T. v. Department of Educ., Hawaii, 637 F. Supp. 2d 856 (D. Haw. 2009), B.T., a 20-year-old student with special needs, sued Hawaii’s Department of Education claiming that terminating his special education services at age 20 violated IDEA and denied him a free and appropriate public education. The district court in B.T. agreed, finding that 111 students had been allowed to enroll in secondary schools after age 20. The federal district courts in Hawaii have rejected comparison of the "age-out" cases to B.T., because in B.T., school principals had “approved every single overage general education student and barred almost every single overage special education student.” B.T., 637 F. Supp. 2d at 865. In the R.P.-K case, the district court found that there was not the evidence of "blatant discrimination" present in the B.T. case. In the two cases heard last week, four (non-disabled) students are said to have enrolled in the adult community diploma program. (In the 2009-2011 school year, 2009–2010 school year, 51 general education students were ineligible to continue their public high school education because they were 20 or over; only one student enrolled in a community school for adults for the 2010–2011 school year).
Click the case name to read the district court's opinion in R.P.-K. ex rel. C.K. v. Department of Educ., Hawaii and the opinion in A.D., ex rel. L.D. v. Department of Educ., Hawaii.
This weekend, a New York Times article article cautiously took sides in the debate over the charterization of the New Orleans School District. Its position, however, was relatively unique. It posited that charters have produced modest improvements in student achievement, but have been offset by harms to the core of the black middle class: public school teachers. Rather than jump into a very localized issue as though I know something--which I am prone to do--I contacted Brenda Shum of the Lawyers' Committee for Civil Rights Under Law. She is counsel in a class action special education lawsuit against charter schools in New Orleans, which the Times referenced. Here is Brenda's take:
[F]or those of us committed to equity in education, the experience of New Orleans post-Katrina previews both the opportunities and challenges facing public education everywhere. Sarah Carr [author of the NY Times article] raises important concerns related to the focus on school-improvement which has characterized education reform in New Orleans. It is certainly true that the unprecedented rise in charter schools has transformed the education landscape in Orleans Parrish. Many have tried to interpret the role that these charters have played in the increases in student achievement for students in New Orleans. While some may attribute these modest increases in student performance to increased choice, charters have certainly not eliminated the churn which contributes to the destabilization of a student’s educational experiences in Orleans Parrish. Each year, the number of charters has continued to increase, but every year those same charters may experience changes in their charter authorizer, their teachers and staff, their grade configuration, and their location. The “OneApp” enrollment system introduced this past school year centralizes the application process and timeline for schools in New Orleans, but parents continue to report confusion and difficulties in enrolling their children in school. There may be a fundamental disconnect between the educators in Orleans Parrish and the community they serve, but it is also clear that all public schools – both traditional and charter – must acknowledge that the complexity of issues facing students in New Orleans, and how frequently these issues intersect with race and class. The disparities in educational opportunity reflect and reinforce the inequities in the communities around them. But I suspect that many of the parents we have encountered and worked with would strongly disagree with Andre Perry’s observation that their communities are “weaker,” and would likely assert that they are more committed and determined than ever to the future of public education in New Orleans.
Does pre-k save schools money in the long run? The research says the easy answer is yes. Now private fund managers are getting in on the "action." Last week, the New York Times posted an interesting article about Goldman Sachs lending 4.6 million dollars to Salt Lake City's school district for it to fund new pre-k services. The article is short on details, but it suggests the investment is a gamble by Goldman Sachs. Goldman Sachs will lose money if the program is unsuccessful and make money if it is successful. Success is defined by whether the school will save money by offering pre-k, due to lowered special education and other service costs as students progress through later grades. The NY Times article does not specifically indicate what losing money means for Goldman Sachs' investment: the loan doesn't have to be paid back, the loan doesn't have to be paid back with interest, or something else. By making money, it means Goldman will get 5% interest plus some other success fees.
Yesterday, even more facts came out. An AP story reports that Goldman Sachs stands to get 5% interest plus 40% of any savings the district reaps. Currently, Salt Lake City spends an additional $2600 per pupil per year on students enrolled in special education. Based on the most recent data I could find, Salt Lake City enrolls 2991 students in special education. Of course, a substantial portion of these students are likely in special education for a very good reason and better pre-k services would not have affected their eligibility. But for the sake of argument, let's assume that with better early education opportunities, 30% would have avoided special education (at least during the first 6 years of schools, which is the relevant period for Goldman Sachs). This means the potential pot of savings is roughly $2.33 million, 40% of which is $933,000 (Goldman's cut). Not bad for an initial loan of $4.6 million, although it is not clear whether this is the per year loan amount, a one year loan, or something else. The deal could be even sweeter for Goldman Sachs if the loan is to cover multiple years of pre-K, thus giving them a cut of the savings on more cohorts of students. If this were the case, their payout would multiply.
I find it hard to criticize the expansion of pre-k, regardless of the circumstances. The benefits are priceless for the students and families receiving it; who cares if Wall Street is picking up the tab. But I am still ambivalent/concerned. First, pre-k is not a gamble. We know it works, so why don't we--the government--fund it on our own dime and reap all the savings? If this is a state or district that can't or won't fund pre-k on its own and Wall Streets puts them on the right track with seed money, I suppose it is a win-win situation. But I am skeptical that Salt Lake can't do this on its own. Second, while Wall Street is not in the business of losing money, it is in the business of taking risks. Is it possible that the availability of Wall Street money might incentivize risky educational programs outside of pre-k? Wall Street can afford losses in one district so long as other districts pay out. Can the districts and communities who lose afford these losses? Maybe so, if the payback terms are favorable; maybe not, if the districts go just further into debt and receive no benefit for doing so. On the other hand, if districts are savvy and stick to pre-K, I suppose there is very little risk for them or wall street.
Thursday, June 13, 2013
Late last year, the ACLU filed an adminstrative complaint with the Office for Civil Rights regarding a Birmingham, Alabama, middle that operated a sex segregated program. The district just entered into an agreement with OCR to end the sex segregation. The facts sound like something from a bygone era. Cribbing from the ACLU release:
Huffman [Middle School] had been separating boys and girls in every grade for all core curriculum classes, homeroom and lunch, on the theory that there are "hard-wired" differences between boys' and girls' brains requiring them to be taught differently. . . Pop theories of hard-wired brain differences between boys and girls have been debunked by neuroscientists, psychologists and educational researchers. Even Birmingham CSD testing researchers were unimpressed with the results of sex separation at Huffman. Analysis of student test results in the areas of reading and mathematics at Huffman and other Birmingham schools that had experimented with sex separation showed no clear pattern of improvement after the initiation of single-sex programs, and the researchers concluded: "There is no definitive proof that the percentage of students scoring proficient is significantly impacted by students being taught in same gender classroom settings.
More on this story here.