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.
Last week I posted on legislative efforts to eliminate virtual charters in some states and asked whether the gig is up. My skepticism toward virtual charters still persists given the potential perverse incentives, but Aaron Saiger's scholarship (here) gives me pause. He suggests that virtual charters or virtual schooling in general might play an important integrative function. I hadn't thought fully through that possibility until read I today's story from edweek about large urban school districts creating their own virtual schools. The story indicates that the point of these virtual schools is not to help students exit the public school system but to bring those who have already left back into it. White flight in urban centers has long been a serious precipitant of school segregation.
The missing link in the current story of urban virtual schools is an explanation of how these students will be drawn back into physical public schools or online environments that offer the benefits of diversity. If they can, then they seem worthy of exploration. If they are just attempts to retain a bigger portion of state education funds by keeping more students on the books, it is hard to distinguish them from the state's virtual schools or virtual charters.
Wednesday, June 5, 2013
Sen. Tom Harkin (D-Iowa) introduced a bill Tuesday to restart the reauthorization process for the Elementary and Secondary Education Act (ESEA). ESEA's authorization expired in 2007, and political differences in Congress have stalled reauthorization efforts. Sen. Harkin’s 1,150 page bill, called the Strengthening America's Schools Act of 2013, would also replace the unworkable portions of No Child Left Behind, ESEA’s successor education law. Perhaps the most progressive part of the bill, however, is its nondiscrimination language requiring schools to protect gay, lesbian, bisexual, and transgender students from discrimination, including bullying and harassment of students who are or are perceived as LGBT. ESEA funding will be tied to schools’ enforcement of the antidiscrimination language. Eliza Byard, executive director of the Gay, Lesbian and Straight Education Network, told the Associated Press, “We are thrilled that the Senate is moving to address the long overdue issue of school bullying and harassment. This bill includes critical components to ensure safer learning environments.” The Senate Committee on Health, Education, Labor & Pensions is scheduled to begin marking up the bill on June 11. Read more at the Washington Post.
Tuesday, June 4, 2013
In doing research for my casebook, I came across a few articles that identified the conflicting and outdated rules that could prevent transgendered athletes from participating in atheletics at all. The NCAA, to its credit, had taken some steps to address the issue. Unfortunately, however, this has been a reletively underdeveloped of the law. I am glad to see that others are continuing to write about it. I just picked up this article yesterday:
Elizabeth M. Ziegler & Tamara Isadora Huntley, “’It Got Too Tough to Not be Me’:
Accommodating Transgender Athletes in Sports”, 39 J.C. & U.L. 467 (2013). Cribbing from its abstract: “This Article will argue that there is a need for standards to ensure that the transgender student-athlete does not encounter problems with participation due to inconsistent rules for state eligibility, conference and tournament eligibility, and national competitive tournaments. Furthermore, inclusion, equal opportunity, and acceptance should be the goals when establishing such standards …. Finally, such standards should be the goal because of the numerous positive effects of athletic participation, including, physical, social and emotional wellbeing, self-discipline, teamwork, and learning how to deal with success and failure.”
Sunday, June 2, 2013
Below is the abstract of Education Law: Equality, Fairness, and Reform, which emphasizes the current landscape of equality and civil rights issues in education:
Education Law situates case law in the broader education world by including edited versions of federal policy guidance, seminal law review articles, social science studies, and policy reports. It includes individual chapters on each major area of inequality: race, poverty, gender, disability, homelessness, and language status. Those chapters are followed by a structured approach to the complex first amendment questions, dividing the first amendment into three different chapters and addressing, in order, freedom of expression and thought, religion in schools, and the intersection of religion and freedom of expression with school curriculum. Two chapters relating to current educational reform — No Child Left Behind, Standardized Testing, Charter Schools, and Vouchers — close out the book.
Narrative introductions to every chapter, major section, and case synthesize and foreshadow the material to improve student comprehension and retention. Efficient presentation of carefully-edited cases and secondary sources permit comprehensive inclusion of case law and secondary issues. Student-friendly questions and notes follow each case. Hypothetical problems follow each subsection and draw on multiple skills: synthesis of law, factual application, fact gathering, professional judgment, and practical problem-solving skills. These problems can be modified for group exercises, class discussion, or writing assignments.
Thursday, May 30, 2013
On May 28, 2013, the Colorado Supreme Court issued its opinion in Lobato v. State. Lobato involved a challenge to school inequities under Colorado's state constituion. The Supreme Court rejected plaintiffs' claim and overturned a lower court ruling in their favor. The court's opinion is unusual in that it held that the case was justiciable and that the state constitution imposed an adequacy standard on the state, but found that the state had met this standard. Most courts rejecting school finance claims have done so by refusing to reach the factual merits, finding that separation of powers concerns or the lack of a manageable adequacy standard precluded an analysis of the facts, or the courts have applied a deferential rational basis standard. Nothwithstanding extensive inequalities between school districts, the court focused on the fact that the state had a uniform funding formula in place.
Also curious is how fast the court reached its decision. The court heard arguments in early March and issued its 66 page opinion less than three months later. Given that the case involved a 5 week trial, the speed of its opinion is remarkable. I can't recall any court in recent years issuing an opinion that quickly. To the contrary, they often sit on them. Some may recall that South Carolina's Supreme Court sat on its school funding case for so long (nearly 3 years I think) that it ordered reargument. That argument was this past September and the court has yet to issue a decision.
Thursday, May 23, 2013
Although I am quite sure I did not spur her, Cynthia Brown followed up my post on the U.S. Department of Education's Equity and Excellence Commission report with her own article in edweek. She chides the report for pointing out problems in school finance, but offering no solutions. Thus, in her article she offers three relatively simple, but bold, proposals. First, she proposes eliminating the four federal funding formulas currently in place and replacing them with "one formula that better targets schools with high concentrations of students in poverty. This honors the law's intent of providing additional education resources for children with the greatest educational needs." Second, she proposes closing inequities within individual school districts, most notably by no longer exempting teacher salaries from equity calculations, which allows all of the highest paid and most qualified teachers to teach at the same schools. Third and most boldly, she argues that "States should adopt a state-based system of school financing—one in which states provide all nonfederal resources for education, and districts no longer have the power to raise funds from local property taxes." As my scholarship in the past has suggests (see here), I believe Brown is on the right track. But I would reiterate my concern from yesterday that we not ignore segregation, as it is intertwined. Moreover, if we are too agressive in attempting to offset the costs of concentrated poverty, we could financially incentivize further segregation and decentivize integration.
Wednesday, May 22, 2013
Nearly two years ago, the Department of Education created a commission of experts to:
provide advice to the secretary of the U.S. Department of Education on the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and to recommend ways in which federal policies could address such disparities. The findings and recommendations of the commission do not represent the views of the department, and this document does not represent information approved or disseminated by the Department of Education.
The Commission released its report this spring and described its proposed strategy for reform as follows:
• First, we begin with a restructuring of the finance systems that
underlie every decision about schools, focusing on equitable resources
and their cost-effective use.
• Second, we examine the most critical resource of all: quality teachers and school leaders, the supports they need to be effective with all learners and ways to make sure all students have access to high-quality instructional opportunities.
• Third, we explain the importance of starting early—making the case for high-quality early learning for all children, especially for low-income children, who need it most.
• Fourth, there is the matter of providing critical support—including increased parental engagement, access to health and social services, extended instructional time and assistance for at-risk groups—that students in high-poverty communities need to start strong and stay on track.
• And fifth, we lay out the changes in accountability and governance necessary to ensure that, a decade from now, there doesn’t need to be yet another commission appointed to call public attention to the corrosive effects on the nation’s children and our future of the failure to advance equity and excellence in America’s public schools.
These points recognize the problem of concentrated poverty, but the solutions focus exclusively on addressing the problem in place through money, programs, and the lack. Curiously missing is any mention of integration strategies. A few members of the Commission were interested in focusing more heavily on integration, but the fact that they lack significant support is a sad testiment to how far away from integration the conversation has moved.
The Leadership Conference Education Fund recently released a response report to the Commission. Integration was missing from its proposals as well. The absence in both reports of integration proposals is probably due to the Commission's core charge of addressing finance inequity, and a desire to not muddy the waters with other issues. While these practicalities are understandable, the assume that segregation and inequality can separated, which history and scholars tell us is false. As Jim Ryan most prominantly has argued, the achievement gap is caused by the intersection of school finance inequity and segregation, not finance inequity alone. Thus, solving finance inequity without touching segregation will not pay the dividends that policy makers expect.
Thursday, May 16, 2013
A little over a month ago, a coaltion of community members and local organizations in DC sued the DC Public School System in an attempt to stop the continued policy of school closings. Cribbing from the court's order:
"All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
The plaintiffs alleged that the plan was racial discriminatory, violated the rights of special education students, and that the process by which DCPS made its decision violated the city's notice requirements. Yesterday, the federal district court rejected plaintiffs' motion for preliminary injunction, finding that plaintiffs had a low likelihood of success on the merits. The district court's opinion is here: Download School Closings --- Order.
In most respects, the opinion is a straightforward application of existing law and doesn't break new ground. Interesting, however, is the issue of what it means to discriminate in the context of facts where one knows a policy will affect only minorities. From the perspective of the Supreme Court's seminal opinion on the meaning of intentional discrimination in Mass. v. Feeney, one must act because of, not in spite of, disparate impacts. This principle makes a great deal of sense in the context of the facts of Feeney, where the state was seeking to benefit veterans, which is a legitimate goal. The only way to benefit veterans is "to benefit veterans."
The principle is not so obvious in the context of school closings where the district is picking which ones to close. There are necessarily multiple options and no obvious legitimate goal to benefit or burden any group. Ultimately, the district needs to operate fewer schools and closing any schools, including ones currently at capacity, can achieve that goal. Thus, the question is not necessarily which schools are the most underutilized, but rather, which students will feel the burden of school closing. When minority students are the only ones that feel that burden, one can legitimately ask whether the district would ever undertake a policy in which whites were the only ones feeling the burden.
You might also find in the subtext of the opinion the role of charter school growth in the closing of traditional public schools. Charter schools have rapidly expanded in minority communities in DC, and the under-enrollment in the schools slated for closure is closely connected to the growth of charter schools.
Monday, May 13, 2013
A few days ago, the Sixth Circuit in Spurlock v. Fox rejected a claim by an African American community challening Nashville's student assignment plan. Nashville's school district was under court ordered desegregation until 1998. The current challenge centers around the district's adoption of a neighborhood schools plan that retained some transfer options for students, but which retained few options and less integration.
An interesting aspect of the case was the plaintiffs' allegation that the mere consideration of racial demographics in adopting the new plan amounts to a racial classification that should trigger strict scrutiny. This same argument was recently made in Doe v. Lower Merion, 665 F.3d 524 (3d Cir. 2011), although there the challenge was to a racially integrative plan. Both Spurlock and Doe rejected this argument, relying on Justice Kennedy's controlling opinion in Parents Involved v. Seattle. Thus, the opinion, although a negative outcome for African American students seeking access to better schools in Nashville, is favorable precedent for school districts that want to consider racial demographics to create integrative assigment policies. The Spurlock opinion is available here: http://www.ca6.uscourts.gov/opinions.pdf/13a0135p-06.pdf
The case also raise key issues about equal access to quality educational opportunities and the meaning of intentional discrimination, which I will address in upcoming posts.
Sunday, May 12, 2013
Those familiar with the Supreme Court are saying that it’s looking increasingly likely that affirmative action in college admissions is on its way out. The New York Times explores the ways in which states that are now looking for a different way to maintain diversity on their college campuses can emulate one of the first states not to use affirmative action at all – California. Read more at Education News.
Friday, May 10, 2013
An article about one community's experience with parent-trigger laws was posted today by Yasha Levine in Pulling the Parent Trigger: The Push to Privatize Public Schools. Levine details allegations that Parents Revolution, a movement favoring parent choice to change a public school to a privately-run one, used heavy-handed tactics in Adelanto, CA, to convince poor and undocumented parents to sign a parent-trigger petition. The parent-trigger petition got enough signatures to convert the local public elementary school, Desert Trails Elementary, to the first school to be privatized under California's parent trigger law.
In answer to critics of the parent choice movement, T. Willard Fair, CEO of Miami's Urban League, recently wrote an op-ed, Stop blaming poor parents, empower them with school choice. In the Miami Herald, Fair wrote, "I don’t care about the vehicle. I care about the result. And I’ve found the result is much better when parents are allowed to make choices." Fair is a former chair of the Florida State Board of Education.
Photo: Crayola Lincoln Logs, Chris Metcalf/ Creative Commons 2.0