Wednesday, February 21, 2018
A group of African-American and Latino families have sued Connecticut and the Hartford public school system over the admissions policies at Hartford's magnet schools. Those magnet schools came into being as a result of Sheff v. O'Neill. In Sheff, the Connecticut Supreme Court held that the extreme racial isolation in Hartford schools deprived minority students of equal educational opportunities. Moreover, the extreme racial isolation was a result of the school district boundaries that the state set. The remedy was to create magnet schools that would pull students into Hartford from across school district boundaries. Some students in Hartford would also attend school in the suburbs.
The success of that program has been highlighted several times in the past few years, most notably by the New York Times, which called out the state of New York for dragging its feet on integration when it had a perfectly good model up the road in Hartford to follow. Likewise, litigants are currently before the Minnesota Supreme Court, asking the court to recognize a challenge to extreme poverty isolation in Minneapolis schools and pointing to Sheff for support.
This new lawsuit against Hartford claims that the admissions policies at the magnet schools discriminate against minority students. According to local news, "[t]he schools are limited to 75 percent minority student enrollment." Parents argue this unfairly prevents minority students from gaining access to special programs at the magnet schools and amounts to a quota prohibited by federal law.
The state has yet to respond, but this case is not nearly so simply as plaintiffs would make it. First, there is unfortunately very little that is fair in education policy. School funding is not fair. On average, the nation spends nearly $2000 less per pupil on poor students than it does middle income students. School suspensions are not fair. African Americans are suspended at a rate two to six times higher than whites, depending on the jurisdiction. The very idea of school district lines is not fair. It locks hundreds of thousands of students out of educational opportunities and there is absolutely nothing they can do about it.
Because I hope I would never dismiss the unfairness that kids experience and am loath to lump one more unfairness those stuck in low-performing schools, I would admit that there is something obscenely unfair about the education these plaintiffs receive. I would only emphasize that it was an effort to make educational opportunities more fair for more students in Hartford that led to this magnet school plan, not an attempt to just do more of the same for kids in Hartford. That plan is far from being a solution to all of Hartford's ills, but it is an important step in the right direction.
Second, the courts have never addressed a challenge to a desegregation plan implemented pursuant to a state constitutional mandate. Courts, however, have tons of experience with integration mandates pursuant to a finding that schools have intentionally segregated schools. In Swann v. McKlenberg, the Supreme Court made it crystal clear that quotas were an appropriate starting point for creating a desegregation plan. As a result, hundreds of lower courts entered consent decrees requiring that schools maintain enrollments at each individual school that were within 10 or 15 percent of the overall district's racial demographics. While Sheff does not involve the elimination of prior intentional or de jure racial segregation, Sheff does involve a mandate to eliminate racial isolation that the Court found was the direct result of the state's actions and which deprived students of equal educational opportunities. The line between these two circumstances is not so wide that a court could not recognize the authority of the state to implement tight controls on admissions in these magnet schools.
Second, even if these magnet schools were treated as entirely distinct from traditional school desegregation cases, there is good reason to believe that they should pass constitutional muster. Even under strict scrutiny, the school would have the opportunity to demonstrate that the assignment plan serves a compelling interest and is narrowly tailored. Ensuring the delivery of equal and adequate educational opportunities should easily rise to the level of a compelling interest. As Justice Kennedy wrote in his controlling opinion in Parents Involved v. Seattle Schools: "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."
Monday, February 19, 2018
Appellate Court Finds Alabama School District Succession Was Racially Motivated, But Don't Overlook the Importance of the Lower Court
The Eleventh Circuit has straightened out the school segregation mess in Birmingham, Alabama (or at least part of it). As many recall from last year, a district court found that Gardendale had acted with racially discriminatory intent when it succeeded from its parent school district. Yet, the court allowed the succession to proceed, reasoning that stopping it would do more harm than good. The Eleventh Circuit affirmed the district court’s finding as to discriminatory intent, but found that the lower court erred as a matter of law in allowing the succession to occur.
As to the discriminatory intent, the Eleventh Circuit recounted much of the most troubling evidence. For instance, it wrote:
While Harvey was performing the feasibility study, the secession leaders formed a nonprofit entity called Future of Our Community Utilizing Schools (FOCUS) Gardendale. FOCUS Gardendale existed to raise funds and to lobby for higher property taxes to support the proposed school system. FOCUS Gardendale circulated a flyer that depicted a white elementary-school student and asked, “Which path will Gardendale choose?” It then listed several well-integrated or predominantly black cities that had not formed municipal systems followed by a list of predominantly white cities that had. The flyer described the predominantly white communities as “some of the best places to live in the country.”
The most explicit evidence of discriminatory intent was from the statements and online posts of community members. Gardendale argued that those private motivations could not be attributed to the district. The Eleventh Circuit disagreed, explaining:
Friday, February 9, 2018
On Wednesday, The Century Foundation hosted a lively debate on school integration between Professor Sheryll Cashin (Georgetown University) and Dr. Howard Fuller (Marquette University). Former Secretary of Education John B. King, Jr. moderated the debate. Both participants were sympathetic to the other's position at times. Fuller conceded the value of integration and Cashin conceded the indirect negative consequences that can occur when integration is not implemented properly. But sharp disagreements emerged as well.
Fuller charged that African American children need better educational opportunities now, not in some pie-in-the-sky integrated world that does not appear to be on his way. Thus, he expressed outrage and disbelief that integrationists attack the work of charter schools that are coming into minority communities to expand opportunity. If those are good schools, he said we should not care that they are segregated. Critiques of those schools, he argued, are premised on black inferiority.
Cashin responded that no one is seriously attempting to address resource inequity either. Our schools are segregated and unequal. She emphasized, however, that there is a well-educated white middle class constituency that supports and seeks out integrated environments because it understands the value. And fostering those movements and implementing the programs they call for does not require huge expenditures of money. In other words, integration may be far more plausible and cheaper than most assume.
John King also did a great job interjecting sharp questions to both participants. You can watch the whole debate here.
Monday, February 5, 2018
Vox has published an incredibly powerful new tool for measuring segregation in your local schools. For those teaching in the area (or engaging in local advocacy), it allows you to make the issue far more personal and tangible than it otherwise would be.
Just select your local district and the tool will pull up a color-coded picture of the school attendance boundaries in your district. One version of the map will tell you the current racial demographics of each school. The other will show you what the demographics would be if students were assigned to the school nearest where they live. It then indicates whether the current zoning is making school segregation better or worse. In other words, if we accept current housing segregation patterns as a given, does school zoning make schools even more segregated?
As Vox chart below indicates, most districts do not make things substantially better or worse, yet there are many that do. It is, of course, more complex than that and I advise against just looking at the highest level data. The chart reduces each district to a single category--makes segregation better or worse. If you look at individual districts, however, you can see that a district might make things better or worse in particular pockets of the district. This gets lost when reducing the district to an average.
In Richland One School District in Columbia, SC, for instance, the overall district basically tracks the segregation of the city. But that is not the case in all pockets of the city. The district appears to assign students who live in predominantly minority neighborhoods to predominantly minority schools. Conversely, schools located in predominantly wealthy white neighborhoods tend to pull in an additional percentage of minority students from surrounding areas. In other words, the district does not touch racial isolation in minority neighborhoods, but it whittles at it in white neighborhoods. A district might also whittle out minority students in neighborhoods that are at the tipping point of becoming majority-minority. This would, presumably, make whites more likely to remain in their local school. You can assess the merits of this yourself, but it surely raises a host of questions you would miss if only looking at the high level data.
Thursday, February 1, 2018
Data Is Building to Show That Charters Are Making North Carolina Schools More Segregated and More Unequal
Helen Ladd has followed her poignant charter school segregation study with a new one on the financial impacts of charters on the public school system. Two years ago, she, Charles Clotfelter, and John Holbein released Growing Segmentation of the Charter School Sector in North Carolina. They found that the state's charter schools were becoming increasingly white, while its charters were becoming increasing populated by students of color. It was probably the most precise and impactful study on the topic of charter school segregation to date.
I separately theorized that this particular demographic trend was occurring in North Carolina as a response to relatively high levels of integration in the public schools. In other states, the typical charge is that charters are predominantly minority and more segregated than the traditional public schools. While far from perfect, North Carolina's traditional public schools have tended to be some of the most integrated in the nation. This is partly attributable to the fact that there are 100 counties in the state and only 102 or 103 school districts. So those who object to integration cannot simply flee to a suburban district--at least not easily.
Charters schools potentially change that in North Carolina. The so-to-speak dissenters can simply enroll in a local charter now. This is not to say that all North Carolina charters play this role, but Ladd's work suggests that many do.
Her new study suggests that not only are these charters segregating education, they are draining funds from the regular public schools. Her abstract states:
A significant criticism of the charter school movement is that funding for charter schools diverts money away from traditional public schools. As shown in prior work by Bifulco and Reback (2014) for two urban districts in New York, the magnitude of such adverse fiscal externalities depends in part on the nature of state and local funding policies. In this paper, we build on their approach to examine the fiscal effects of charter schools on both urban and non-urban school districts in North Carolina. We base our analysis on detailed balance sheet information for a sample of school districts that experienced significant charter entry since the statewide cap on charters was raised in 2011. This detailed budgetary information permits us to estimate a range of fiscal impacts using a variety of different assumptions. We find a large and negative fiscal impact from $500-$700 per pupil in our one urban school district and somewhat smaller, but still significant, fiscal externalities on the non-urban districts in our sample.
This study only adds fuel to theory I offer in Preferencing Choice: The Constitutional Limits.
Wednesday, January 31, 2018
Social science has long demonstrated the various harms that students suffer as a result of attending high poverty schools. Some of those are obvious ones regarding access to resources like teachers, but also include peer-to-peer effects. Students learn a tremendous amount from one another, and students in low-income schools tend to be deprived of important peer-to-peer influences. These resources and influences are so central to an adequate education that I have argued that denying students equal access to middle-income environments violates their constitutional right to education under state law.
At the same time, all students, regardless of wealth, benefit academically and socially from exposure to diversity. In other words, middle-income white students have a lot to learn from low-income minorities as well. Thus, Rob Garda argues white parents must recognize and pursue these benefits. Otherwise, they are disadvantaging their children as well. He aptly points out that the way to ensure integration is to focus on the interest convergence between these communities.
[He] describ[es] the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation and affirmative action jurisprudence. Multiracial schools will not be created or endure unless white parents believe it to be in their children’s best interests. [He] next describes the extreme racial segregation in schools today and how white children are the most racially isolated students. This isolation contributes to the unconscious and automatic racial bias that infects everyone and will impair white children’s ability to successfully navigate the multicultural marketplace. Integrated schools, however, can de-bias white children and teach them cross-cultural competence, a skill they will need to effectively participate in a market with increasingly multicultural customers, co-workers and global business partners.
These benefits are so compelling that a group of the nation's leading education scholars recently filed an amicus brief before the Minnesota Supreme Court arguing that a diverse educational environment falls within the meaning of an adequate education.
Denver just announced a new school assignment policy that, on its face, seems to find the interest convergence Garda references. Denver is responding to the calls of parents at high-performing schools for more diverse learning environments. It seeks to achieve this goal by make socio-economic status an explicit priority in admission to these schools. The devil is, of course, in the detail and it matters tremendously how many seats in these high performing schools Denver will open, but this is a crucially important step regardless. The press release offers this explanation:
Denver Public Schools (DPS) Superintendent Tom Boasberg shared how the school district will help schools continue to increase diversity while still meeting the needs of their communities. DPS is now giving priority seating at select high-performing schools to students who qualify for free- and reduced-price lunch (FRL) during the district’s SchoolChoice process.
“Research shows that at whatever income level, all students benefit from being in diverse schools – that is true both academically and socially,” said Superintendent Tom Boasberg. “We hear from students and families about how much they value being members of a diverse community. They want to make sure their classrooms and their learning experiences are ones that they’re sharing and learning from students all across Denver who represent the racial, ethnic and economic diversity that is a strength of our city.”
In 2016, with the goal of providing more integrated schools, DPS began a pilot program at some high-performing, low-poverty schools to prioritize enrollment for students eligible for FRL, an indicator of poverty. In these schools, students living within the boundary still have priority; outside the boundary, the priority goes to low-income students. After receiving positive feedback from the community through DPS’ Strengthening Neighborhoods Initiative, more schools have expressed interest in participating in this pilot program.
“This is our first year as a school community, and we welcome the chance to offer seats in our school to students who need it the most,” said Inspire Elementary Principal Marisol Enriquez. “We have a commitment to equity and we believe it’s important for our students to grow surrounded by diversity.”
As the city continues to grow and housing prices increase, many parts of Denver are undergoing major shifts in demographics. This is resulting in significant changes in housing patterns and a major reduction in many neighborhoods of school-aged children. Diverse neighborhoods are struggling to balance the challenges of gentrification with the rich cultural histories of these communities. DPS’ priority seating effort maintains the school district’s enrollment priorities and promotes vibrant neighborhoods.
Tuesday, October 31, 2017
The National Coalition on School Diversity issued this statement:
DeVos Eliminates School Diversity Priorities in New Competitive Grant Program Priorities
On October 13th, the Department of Education published new Proposed Supplemental Priorities and Definitions for Discretionary Grant Programs.
In these new proposed priorities, Secretary DeVos continues to weaken federal support for diverse schools, eliminating supplemental priorities for programs that work to increase racial and socioeconomic diversity in schools while emphasizing school choice. During the Obama Administration, NCSD advocacy played a key role in the promulgation of supplemental priorities for school diversity in 2014, and socioeconomic diversity in 2016.
Comments on the proposed priorities are due November 13th.
NCSD is currently formulating a strong response to the Secretary's latest attack on programmatic support for diverse, equitable schools. We encourage our membership and readers to contact NCSD staff at firstname.lastname@example.org to join our efforts.
Wednesday, September 20, 2017
Parents Involved v. Seattle Schools is back in the news again, although for different reasons. This time involves a judicial nominee’s interpretation of the case. Earlier this month, President Trump nominated Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals. Thus far, Senator Franken is exercising his right under traditional senate rules regarding home-state senators to block Stras’ appointment. One of the topics of conversation is Stras’ approach to civil rights issues, including an essay he wrote on Parents Involved v. Seattle Schools.
Parents Involved is the most recent and potentially last decision our Supreme Court will ever decide on school integration. As such, the holding in Parents Involved may be the final door through which all future efforts toward integrated schools must past. It is, in effect, the book end to Brown v. Board of Education. Brown began as a challenge to the intentional segregation of students by race. In Parents Involved, the school districts had not engaged in intentional segregation. Rather, they had more recently taken race into account to try to eliminate school segregation that stemmed from housing patterns. The question was whether they could do so.
Although involving very different factual circumstances, both cases establish basic and wide ranging principles of school integration law. And for that reason, both cases also implicate a struggle over the fundamental vision of equality in schools and attempt to articulate a vision to an audience far broader than the lawyers. To be clear, Parents Involved is no Brown v. Board of Education, but it is no ordinary case either. It requires the careful attention of jurists, education leaders, and communities.
So what exactly did the Court hold? The most popular answer among law students is that the Court held that the voluntary integration plans in the case were unconstitutional. They are correct on that score, but the real question is why they are unconstitutional. Most students assume that the Court refused to find a compelling interest to pursue integration. That is not true. The Court held that the plans were not narrowly tailored.
Five Justices found that the districts had a compelling interest to pursue diversity and integration. If they did not have a compelling interest, there would have been no reason to move to the second question of narrow tailoring.
Justice Kennedy is the swing vote on both points. Justice Kennedy was emphatic that school districts have a compelling interest in pursuing integrated schools, but they were not careful enough in doing so. Four justices agreed with him that schools have justifications for integrating.
Four different justices agree that the school districts’ methods were flawed. All told, five votes support every position that Justice Kennedy took and no more than four votes support any other position on any other issue. In short, there is no way to get around the fact that his opinion represents the holding of the court.
All three Courts of Appeals that have taken up the issue, along with U.S. Departments of Education and Justice, agree that Justice Kennedy’s opinion is controlling.
This uniform judgment, particularly on a case of such importance, is what makes David Stras’ prior essay on Parents Involved curious. He wrote “many in the media and blogosphere are putting way too much emphasis on Justice Kennedy’s separate opinion in these cases.” First, he reasons that there was not “that much distance between the [Chief Justice Robert’s opinion striking down the integration plans] and Justice Kennedy on most of the important issues in this case.” Second, “Justice Kennedy’s opinion is only controlling to the extent that it differs from” certain parts of Roberts’ opinion. He then offers his third and main point: commentators inappropriately “assume the constitutionality of race-conscious alternatives on the basis solely of Justice Kennedy’s separate opinion.” He goes so far as to call this assumption “especially dangerous.”
Stras’ perspective is curious because it overlooks key details in the Court’s opinions and does so with a skepticism of school integration. His point appears to be to minimize the importance of Kennedy’s crucial decision, rather than accept its’ import: racial diversity and integration are compelling interests and states are free to pursue them under a number of different circumstances.
Kennedy’s own words negate Stras’ argument that there is not much distance between the plurality opinion and Kennedy’s. Justice Kennedy indicates that he is perplexed that the plurality would seemingly bar the consideration of race in all contexts and require districts to ignore de facto resegregation in schools. Thus, Kennedy writes the plurality is “too dismissive of the legitimate government interest” school districts have in pursuing integration and he “cannot endorse” the plurality's opinion, which he calls “profoundly mistaken.” He writes that “diversity . . . is a compelling educational goal a school district may pursue,” as is “avoiding racial isolation.” The plurality, in contrast, writes that the only compelling interests are remedying past discrimination and pursuing diversity in higher education. In short, the difference between Kennedy and the plurality could not be further on the key issue of whether a district can pursue voluntary integration.
Stras’s second point, arguing that there was not much controlling analysis in Justice Kennedy’s opinion, is wrong if one carefully reads the case. Stras’ essay may miss nuanced points because he over-interprets the plurality opinion by Chief Justice Roberts (the parts that Kennedy did not join) and under-interprets Justice Kennedy’s opinion.
The plurality opinion is held together by a single precise phrase: “individual racial classifications.” On first read, one might not notice that the plurality uses this phrase, as its opinion is otherwise broad and sweeping. But the reason the plurality uses this phrase is that Justice Kennedy uses that phrase. Justice Kennedy is willing to strike down the desegregation plans in Parents Involved not because they consider race, but because they rely on individual racial classifications. Had they pursued other race conscious means to integrate, Kennedy’s own opinion indicates he likely would not have struck down the plans. He would have agreed with the dissenters and, in doing so, those dissenters would have become the majority with five votes. Thus, the distinction between individual race classification and general race classification is central to the holding and rationale of the case. The entire case turns on Justice Kennedy’s articulation of this line and his judgment that the plans had crossed it.
To be fair, Stras acknowledges that Justice Kennedy’s opinion is controlling in most respects, but that only leads Stras to his third point that following Justice Kennedy’s in all respects is dangerous. Following Justice Kennedy’s opinion might seem dangerous if Stras missed the nuanced distinctions regarding individual racial classifications. This type of error on such an important issue is one that some would argue indicates that Stras is not careful enough to be on the Eighth Circuit.
Or it might be that Stras thinks Justice Kennedy’s opinion is dangerous because Stras simply disagrees, as a matter of substance, with Justice Kennedy and is stretching to read Justice Kennedy’s opinion as narrowly as he can. It is hard to say what drove Stras’ essay, but if it is the latter, those who are generally committed to civil rights are understandably wary of his nomination.
Wednesday, August 23, 2017
Court Finds That Arizona's Decision to Bar Mexican-American Studies Was Motivated by Intentional Discrimination
Yesterday, a federal district court held that Arizona's decision to ban Mexican-American studies and the local district's enforcement of that ban were motivated by intentional discrimination. The court also held that restricting students access to that information violated the First Amendment.
As a matter of substance, the case marks a major victory for multicultural studies and places clear limits on partisan and other illegitimate attacks on them. As a matter of Fourteenth Amendment and First Amendment doctrine and analysis, the case is also noteworthy for professors. The opinion is a textbook example of basic constitutional analysis. Anyone looking to bone up on how to apply intentional discrimination and free speech doctrine should give it a read. Assuming the case stands on appeal, it will make a nice addition to education law casebooks or, in a modified form, a handout for class exercise.
First, the court recites the basic Arlington Heights standard for proving intentional discrimination in violation of the Fourteenth Amendment. The case is now in its 40th anniversary and somehow stood the test of time (notwithstanding how hard to makes it for plaintiffs to win discrimination cases). Under Arlington Heights, plaintiffs must show the defendant acted with a "discriminatory purpose." They can show this through circumstantial evidence, including: 1) the discriminatory impact of the decision; "2) the historical background of the decision; 3) the sequence of events leading up to the challenged action; 4) the defendant's departures from normal procedures or substantive conclusions; and 5) the relevant legislative or administrative history."
As on a law exam, the task here is to avoid looking just for smoking guns and instead walk through each factor in a "sensitive inquiry." The details can add up. That is exactly what the district court did, by the end of its opinion, it had amassed so much circumstantial evidence that the case would seem to stand even if the court botched a few facts. While the court pointed to direct evidence of racial animus in the case, it spent most of its time examining the more subtle details. It pointed out that the history of the program was to counteract the harmful effects of past segregation. It identified two procedural irregularities in how the Arizona statute was passed: a) the statute was targeted at a particular district rather than a statewide issue and b) other measures could have been used to deal with the purported problem with the program.
Next, the court examined the legislative history, inferring illegitimate motivation by many of the statute's proponents. Of particular interest was the court's willingness to look at "code words"--words that on their face might sound neutral, but in context could be used to convey racial animus. For instance, "Raza," "un-American," "radical," "communist," and "Aztlan" were all derogatory terms aimed at Mexican Americans during the debate over the program. These terms were not just attempts to win the debate, but were demeaning and racially charged. A less careful court could have dismissed their important. The court revealed, for instance, that the state superintendent had used "Raza" as a substitute for Mexican American, stating the program was "Raza studies for the Raza kids."
With these motivations laid bare, the First Amendment analysis was easy. The court recognized that the state and its schools have the authority to control the curriculum, but there is a major exception: when the control is exercised for partisan or illicit reasons rather than pedagogical concerns. As the Supreme Court held in Island Trees School District v. Pico, partisan motivations render an otherwise permissible curricular decision unconstitutional. Applying that standard, the trial court found that:
The stated policy of A.R.S. § 15-112 is to reduce racism in schools, see A.R.S. § 15-111, which is a legitimate pedagogical objective. The theory of plaintiffs’ First Amendment claim is that reducing racism is only a pretextual objective, and that the statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons.
The Court concludes that plaintiffs have proven their First Amendment claim because both enactment and enforcement were motivated by racial animus.
Get the full opinion here: Download 468 Order and Opinion
Tuesday, August 22, 2017
In 2003, Justice Antonin Scalia predicted that the Supreme Court’s sanctioning of race-conscious affirmative action in higher education would spark future litigation for years to come. And right he was. From defeated claims of discrimination against the University of Texas at Austin to an ongoing lawsuit against Harvard, colleges continue to come under attack for considering race as a factor in admissions decisions.
The recent report of the Department of Justice’s possible investigation of “intentional race-based discrimination in college and university admissions” demonstrates that the assaults aren’t likely to end anytime soon.
As a professor of law and scholar dedicated to ensuring equal educational opportunities for students of color, I believe now is an important time to earnestly consider other methods for diversifying student bodies. Race-neutral alternatives could effectively consider such factors as socioeconomic status and educational background, while supplementing more traditional affirmative action.
‘Race-based’ vs. ‘race-conscious’
When thinking about affirmative action, it’s important to first define (and debunk) a few key terms, starting with “race-based” and “race-conscious” affirmative action.
“Race-based affirmative action” is a misnomer often used to describe some college admissions policies. “Race-based” implies that an admissions decision is made solely because of or based upon an applicant’s race or ethnicity, which could not be farther from the truth. A university’s decision to admit, deny or waitlist an applicant is based upon myriad criteria, ranging from standardized test scores to state of residency. Race is just one of many admissions factors a university may consider.
This approach is more appropriately termed “race-conscious.”
Schools that employ race-conscious admissions policies do so in order to achieve the educational, social and democratic benefits of a diverse student body.
As the Supreme Court held in Gratz v. Bollinger, race is not and cannot be the determining factor under a constitutional race-conscious plan. Therefore, when people claim that an African-American or Hispanic student was admitted because of race, they’re often not only inaccurate but also dismissive of the student’s other numerous attributes that played a role in the university’s decision.
Opponents of race-conscious affirmative action often assert that such policies are racist or disproportionately benefit privileged minority students from middle- and upper-class backgrounds.
For its part, the Supreme Court is also skeptical of using racial classifications in governmental decision-making. As a result, it has held that institutions of higher education must afford serious consideration to “workable race-neutral alternatives” before implementing a race-conscious policy.
Importantly, the court’s use of the term “race-neutral” does not mean “race-blind.” That is, universities are permitted to think about how alternative admissions criteria could help them achieve their diversity goals. Race-neutral criteria could include socioeconomic background, high school or undergraduate institution, or class rank. In other words, these are factors that may contribute to a school’s racial diversity, but applicants themselves are not considered based on race.
In some cases, it’s proven difficult for race-neutral admissions policies to achieve the same levels of racial diversity as those achieved through direct consideration of race. However, such measures have been useful in helping to diversify student bodies when used in conjunction with or in lieu of race-conscious affirmative action.
The viability of race-neutral alternatives
When coupled with the stark racial disparities that continue to plague some professions, the uncertain future of race-conscious affirmative action calls for a renewed focus on alternatives that look beyond race alone.
Law schools play a unique role in training our country’s next generation of leaders. It is, in fact, vital to the future of our democracy that we continue to provide students from historically underrepresented racial groups with access to legal education. And yet, the legal profession was recently determined to be “one of the least racially diverse professions in the nation.”
To help law schools improve their diversity, we examined the relationship between race and race-neutral identity factors in law school admissions. The project, which was funded in part by a grant from AccessLex Institute, surveyed over a thousand first-year law students at schools throughout the country and asked about various aspects of their identity, such as socioeconomic status and educational background.
Our findings indicated that African-American and Hispanic students were significantly more likely than both white and Asian/Pacific Islander students to have qualified for free or reduced lunch programs in elementary or secondary school, had a parent or guardian who received public assistance when the student was a dependent minor, and received a Pell Grant during their undergraduate studies – all of which are race-neutral factors that schools could consider in admissions decisions.
How admissions could change
Based on the sample of participants in our study, it’s clear that privilege did not catapult all students of color to law school. Many of them had to overcome the structural inequalities of poverty, race and public education to embark on a legal career. Expanding opportunities for these and other minority students will benefit not only legal education and the legal profession, but also society more broadly.
Race-neutral admissions policies could help identify and create opportunities for these students.
To be clear, I do not advocate for the wholesale substitution of traditional race-conscious admissions measures with the factors we studied. Race-conscious policies continue to be the most effective means by which to create diverse student bodies.
However, we encourage law schools and other institutions of higher education to utilize these and other race-neutral admissions factors as a means of complying with the Supreme Court’s affirmative action mandates and testing the viability of policies that take such factors into account.
Doing so will help ensure that traditionally underrepresented students of color will continue to have access to colleges and universities that serve as gateways to career, financial and life opportunities.
Wednesday, August 16, 2017
How a Southern City Achieved Our Nation's Greatest School Integration Success and Then Struggled to Save It
Pamela Grundy’s new book, Color and Character: West Charlotte High and the American Struggle over Educational Equality, offers a detailed and personal look into our nation’s most significant integration triumph and its subsequent disintegration. “From the mid-1970s through the early 1990s, Charlotte-Mecklenburg Schools was the most desegregated major school system in the nation.” The story of that triumph is inspiring and a testament to what is possible when communities and public institutions come together in pursuit of an important mission. She tells this story beautifully. One is left wondering why places like Atlanta, Dallas, Cleveland, and so many others did not share similar success.
At least one important factor is that Charlotte had Julius Chambers—a hometown civil rights advocate who would go onto to be a national leader for decades. But Julius was just Julius back then. He took bold stances and demands in the courts. Julius did not demand that Charlotte just tinker with dismantling segregation; he demanded that it immediately create what one might call perfect integration. His vision was so bold that it shocked both whites and blacks. Ironically, the district court bought it.
But Julius was just one attorney. Real world success depended on the people who would teach and learn in Charlotte’s schools. For that story, Pamela Grundy turns to West Charlotte High—the “undisputed flagship” of Charlotte’s success. Much of that story comes through the first-hand accounts and quotes of students and teachers. The opportunity to hear them speak, rather than a scholar characterize them, grounds the book. In today’s world of distant school statistics and profiles, this stylistic choice is refreshing. Students and teachers tell the reader what West Charlotte High was really about, how it made them feel, and what it made possible for their community, their school, and students of all races. Those students built relationships and communities that gave them meaning.
Charlotte was such a deep-felt success that when President Reagan came to town and criticized forced busing, the city rebuked him. The Charlotte Observer wrote “You Were Wrong, Mr. President” and the yearbook students at West Charlotte wrote: “They said it wouldn’t work. They said it isn’t working. Busing opponents, however, need only take a quick survey of West Charlotte High Schools to see that busing has worked.” They emphasized that student came from across the city to participate in a common project. They “didn’t just make the best of an ‘experiment’ but took advantage of the situation . . . academically, athletically and socially.”
One wishes the story could end there or simply march on as inevitable history. Instead, the second half of the book is a story of loss—one that reveals just how fragile integration and equality can be. In the late 1990s and early 2000s, the desegregation plan would be lifted in Charlotte. Its schools would resegregate. They would become separate and unequal. And officials would embark on a number of deals with the devil—deals that would try to make educational opportunity equal in the context of racial and socio-economic segregation. In effect, they would concede to segregation. West Charlotte would fall from its position of “flagship” and struggle to retain teachers, students, and academic achievement.
The second half of the story reveals the interesting dynamics of local, regional, and national change, which quite frankly, I haven’t spent too much time considering as of late. Everything today seems national today: No Child Left Behind, Race to the Top, the Every Student Succeeds Act and school choice.
The early years of desegregation demonstrated the ability of one community to lead the charge of change when very little else would have suggested it was possible. In other words, politics and change are local. Yet, the second half of the book shows national politics overwhelming Charlotte. Charlotte made plenty of mistakes and maybe had lost its integration spunk, but so much of Charlotte’s loss was not entirely of its own doing. Charlotte, like every other community, was besieged by the negative social and cultural effects of national phenomena like No Child Left Behind, individualism, and school choice. And the Great Recession hit Charlotte as hard as any city. These outside stimuli made resegregation and inequality all the more likely.
Charlotte could, of course, have resisted. Louisville, Kentucky, did. But Louisville, Kentucky, had grown far more conscious about integration and had a different local context. The one lesson Grundy seems to want us to take away is that equality is a continual struggle, never fully won or lost, at least not yet. And she still offers us hope for Charlotte, but I will leave that to your own reading of the book.
Tuesday, June 13, 2017
Case Challenging Segregation as Violation of State Constitutional Right to Education Gains Support of National Scholars and Advocates
The Minnesota Supreme Court has previously recognized a fundamental right to an adequate education in the context of school funding challenge brought under the Education Clause of the state’s constitution. Now it is faced with the issue of whether a claim that Minneapolis-area schools are unlawfully segregated is appropriate for determination – or “justiciable.” – under that same Education Clause.
In Guzman v. Minnesota, a trial court judge ruled the plaintiffs’ segregation claim justiciable. The State appealed and the court of appeals reversed. The case is now before the Minnesota Supreme Court.
To support the Guzman plaintiffs, Education Law Center and over twenty of the nation’s leading education and constitutional law scholars have filed a “friend of the court” or amicus curiae brief before the Minnesota high court. The brief argues that, under the state constitution’s mandate for the legislature to maintain a “general and uniform system of education,” plaintiffs’ claims of racial and socio-economic segregation are proper for adjudication by the trial court.
The amicus brief cites to the landmark Booker v. Plainfield and Sheff v. O’Neill rulings by the New Jersey and Connecticut Supreme Courts, along with the numerous decisions from high courts in peer states on school finance and other equity issues, to demonstrate the responsibility of courts to decide education rights claims. The brief also emphasizes Minnesota court precedent supports allowing the segregation claim in Guzman to proceed to trial.
In a powerful call for the Supreme Court to permit the case to go forward, amicus argue that:
a claim that an education system is segregated by race is justiciable because, as state supreme courts have long and properly recognized, education clauses in a state constitution not only prohibit intentional segregation that is unlawful under Brown v. Board of Education, 347 U.S. 483 (1954), but also protect students against the negative effects of segregation when they are unintentional. Segregated schools are unequal schools and therefore do not provide a “general and uniform,” “thorough and efficient” system of education, as required by the Minnesota State Constitution.
The amicus also argue that the Minnesota Supreme Court’s 1993 ruling in Skeen v. State found a claim of inadequate school finance justiciable as a violation of the Legislature’s duty under the state constitution to provide a “general and uniform” system of education to all Minnesota children. Amicus argue that the segregation claim raised the Guzman plaintiffs is “no different:”
There is no principled basis for treating a challenge to school segregation differently than a challenge to school financing. The Education Clause does not single out one or the other for special treatment, but is phrased in broad terms. Moreover, as in most lawsuits challenging compliance with a constitutional standard, it is a court’s proper role to apply and, in the context of individual cases such as this one, give meaning to the standard—and that is exactly what this Court did in Skeen. That is not making “policy,” as the Court of Appeals stated, but judging.
The amicus also bring to the Minnesota justices attention the “robust body of research” demonstrating “that segregated schools—especially hyper-segregated schools as alleged by Plaintiffs in their Complaint—severely disadvantage minority and economically disadvantaged students, in terms of academic performance and other crucial measures of achievement.” Further, the amicus emphasize the research showing integrated schools “provide educational and other benefits to all students—white students and minorities alike.” Because these benefits are central to students’ ability to effectively participate in civil life, workplaces, and global economy in the future, diverse education settings are a necessary component of an adequate education.
ELC and the Constitutional and Education Law Scholars were represented pro bono by Todd R. Geremia, James M. Gross and Christina Lindberg at the Jones Day law firm in New York and Minneapolis, and by Derek Black, a professor at the University of South Carolina School of Law and David Sciarra, ELC Executive Director.
Wednesday, June 7, 2017
A federal district court judge has decided that Gardendale – a predominantly white city in the suburbs of Birmingham, Alabama – can move forward in its effort to secede from the school district that serves the larger county. The district Gardendale is leaving is 48 percent black and 44 percent white. The new district would be almost all white.
The idea that a judge could allow this is unfathomable to most, but the case demonstrates in the most stark terms that school segregation is still with us. While racial segregation in U.S. schools plummeted between the late 1960s and 1980, it has steadily increased ever since – to the the point that schools are about as segregated today as they were 50 years ago.
As a former school desegregation lawyer and now a scholar of educational inequality and law, I have both witnessed and researched an odd shift to a new kind of segregation that somehow seems socially acceptable. So long as it operates with some semblance of furthering educational quality or school choice, even a federal district court is willing to sanction it.
While proponents of the secession claim they just want the best education for their children and opponents decry the secession as old-school racism, the truth is more complex: Race, education and school quality are inextricably intertwined.
Tuesday, May 30, 2017
Thursday, May 18, 2017
Georgetown Law Center, First floor, 600 New Jersey Ave NW, Washington, DC, 20001
Thursday, June 1, 2017 - 8:30am to 4:30pm
U.S. public schools now have a majority students of color yet are increasingly segregated by race and class—as are many of the communities around the country. School integration is an important evidence-based strategy that can improve academic and social outcomes for students from all racial and economic backgrounds. In this new era, however, it can be difficult to know what type of diversity policies are both effective and permissible.
School leaders will work alongside one another, advocates, and researchers on learning more about various aspects of designing, implementing, and sustaining student assignment plans that promote racial and socioeconomic diversity. This meeting will include new research about what diversity efforts districts are undertaking and what is known about the effectiveness of these models. Participants will also learn from one another about local successes and challenges regarding the design of diversity plans as well as how to effectively communicate about the plan with local communities. Expected outcomes are:
Establishing on-going support networks for districts and charter schools;
Providing school leaders with research to assist them wherever they are in the process of considering or implementing racial and socioeconomic diversity efforts; and
Learning about other resources that can assist with integration efforts.
To register for this event, complete our registration form by Monday, May 22nd and indicate which breakout session you plan to attend. Breakout session topics are tentative and may be changed to reflect interests of participants. Please contact Erica Frankenberg at email@example.com if there’s a topic you are interested in.
The full agenda follows the break.
Monday, May 15, 2017
Below are two competing views of the relevance on racial disparities on the bar exam and what we should, or should not, do about them. I want to thank both authors. Dan Subotnik asked if he could start the discussion on this blog. While he offers a biting critique, he was gracious enough to allow Deborah Jones Merritt the opportunity to review his essay in advance so that she might respond. Deborah Jones Merritt was quick to offer a response in the middle of graduation and grading. They offered this blog a unique opportunity to host a high level debate.
Owing minority groups little for their support in the election, Donald Trump is not likely to go out of his way for them. It is not surprising, then, that others are taking the lead.
Deborah Merritt Jones is one of these. A leader in legal education, the chaired professor at Ohio State Law School has recently issued a challenge to the profession, Validity, Competence and the Bar Exam. Merritt takes bar examiners to task for devoting too much attention to doctrine, which students will promptly forget and, even more important, for ignoring “fact- gathering, negotiation, and interviewing,” skills that they will need in practice. Lamenting that law schools are not teaching these skills in their classes, Merritt argues for a more practice-focused bar exam that tests these very skills. In short,
This flawed exam puts clients at risk [and] subjects applicants to an expensive, stressful process. . . The mismatch between the exam and practice, finally, raises troubling questions about the exam’s disproportionate racial impact. How can we defend a racial disparity if our exam does not properly track the knowledge, skills, and judgment that new lawyers use in practice?
For purposes here, I will concede the validity argument. Further, I will admit that the skills at issue can be tested in some reasonable manner. The question I raise has to do with race, Without explicitly holding that bar results would be different, Merritt is quick to use racial disparities to help justify a “new” bar exam.
But does this make sense? If not, what are the implications? Consider: if (a) law schools provided solid grounding in research and interview skills and (b) a bar exam was built thereon, and (c) the bar examiners applied the same pass rate, on what basis could we imagine a different demographic outcome? Do different groups have different intuitions in these areas? Whether the exam is valid or not, it has to be that differences in preparation for exams are what create differences in results. It seems fair to conclude, then, that race is being used as a hook to snare support for Merritt’s proposal.
It could conceivably, beyond a hook, be a ploy and part of a larger problem. Black writers in books such as Stanley Crouch, the “All-American Skin Game, or Decoy of Race” and Richard Thomson Ford’s “The Race Card,” have themselves complained of the speciousness of race talk by black authors. White authors, according to Orlando Patterson, earn no higher marks for honest talk.
Can it be surprising under the circumstances that a strong backlash could take place? And is the best illustration not the election of Donald Trump?
Validity is a scientific concept, not a political one. Everyone, whatever their political leanings, should favor a valid bar exam. The current exam does not embody a coherent concept of “minimum competence to practice law.” As a result, it licenses incompetent practitioners—while perhaps also excluding competent ones.
As part of my clinical teaching, I regularly encounter licensed lawyers. Sometimes those lawyers represent opponents; other times, we observe their work while we are waiting in court. Most of those licensed lawyers are excellent professionals, but some are not.
The ones who fall short usually know the law and they almost always know how to argue. But they don’t know how to identify their client’s goals, gather persuasive facts, and negotiate (which is quite different from arguing). Their failures harm clients. In the misdemeanor court, where we work, poor representation means extra days in jail, higher fines, lost employment, and impaired family relationships.
I agree with Professor Subotnik that preparation is the key to professional competence. If our profession develops a realistic definition of lawyering competence, and devises a licensing process to test for that competence, law schools will prepare their graduates for both the test and practice. That will be an important victory for clients.
What does race have to do with it? As I explain in my original essay, we know that the current bar exam has a disproportionate racial impact. An invalid licensing test is bad: it wastes time and fails to protect consumers. But an invalid licensing test with a disproportionate racial impact is even worse: it means that the test wastes time, fails to protect consumers, and disproportionately excludes some racial groups. Three evils are worse than two. And, yes, I believe that an invalid test that disproportionately excludes disadvantaged racial groups is particularly bad.
How would a new bar exam affect pass rates? I don’t know. As Professor Subotnik suggests, that would depend partly on the preparation that law schools provide. Pass rates might rise, fall, or stay about the same. Professor Subotnik, however, errs in assuming that examiners would automatically adhere to the current pass rate. If they did, that would offer strong evidence that state supreme courts are using the exam to restrain trade rather than to assess minimum competence. I assume that, if our profession adopts a new exam, we will conduct one of the recognized psychometric processes for setting an appropriate cut score.
The key question, as I stress in my original essay, is not pass rates but validity. Our profession desperately needs to define the minimum competence needed to practice law, test for those competencies, and educate students to achieve them.
Thursday, March 30, 2017
The Washington Post reports that the Department of Education has killed funding for one of its few voluntary integration programs. The rationale is pretty flimsy. According to the Post, an official said it was not a good use of money because the funds were for planning rather than implementation. What? Doesn't planning often lead to implementation? Aren't planning grants predicated on promises that districts will implement the plan? I hope this is just a poor excuse and not a guiding principle for future policy: act first, plan later. But if this is just a poor excuse, it begs the question of why the Department is killing this program. Is it anti-integration?
In a letter earlier this month, the National Coalition on School Diversity urged DeVos to retain the program. In the letter, it wrote:
[W]e write to express our support for the Opening Doors, Expanding Opportunities program (“Opening Doors”), and urge you to make the awards under this program as expeditiously as possible. As evidenced by the large number of districts from all over the country that expressed their intent to apply for the program, there is tremendous interest in this program and what it seeks to do—namely to use school choice to achieve diversity and increase equity in our nation’s public schools. This program gives parents more options, and will help to expand innovation and educational opportunity.
We were excited to hear your recent comments regarding the importance of diversity in American schools. During the Magnet Schools of America 2017 National Policy Training Conference, you eloquently spoke of the “the vital role [magnet schools] played to improve the lives of … students, combat segregation, and provide a quality option to parents and kids alike.” Opening Doors seeks to advance the same goal: combating segregation in our nation’s public schools, for the benefit of our children and future generations. Furthermore, during your confirmation process, you wrote in response to a question by Senator Murray (D-WA), stating: “I believe government policies should not be established to intentionally create racial isolation, especially in our elementary and secondary schools.”
Opening Doors will help combat the rising resegregation we are seeing take hold in many public schools across the country. As the Government Accountability Office noted last year, while schools serving primarily Black and/or Hispanic students represented only 16 percent of all K-12 public schools, they accounted for the majority (61 percent) of high-poverty schools in 2013-14. Diversity is beneficial to all students, regardless of socioeconomic background or race. As you likely know, research shows that students attending socioeconomically and racially diverse schools have better test scores and higher college attendance rates than peers in more economically and racially segregated settings.
For these reasons, we urge you to award the Opening Doors grants to qualified applicants as soon as possible. Doing so will provide school districts with locally-developed tools that will foster diversity, which will benefit all students and our society as a whole.
Monday, March 20, 2017
A new four-part series in the Baltimore Sun offers a sobering look at the politics of school integration. Nikole Hannah-Jones' work over the last couple of years has helped make school integration a topic of public conversation. This new work by Liz Bowie and Erica Green show how integration actually does or does not come about. It explores Baltimore County's recent efforts to redraw school attendance lines. The opening lines begin with Jeff Sanford, a father of two African-American boys in the schools who had volunteered to represent his local community in the process. He "went to the debate at the high school cafeteria with an open mind. The boundary lines for 11 schools in the Catonsville area had to be redrawn to relieve overcrowding. But there was a chance to achieve something more, something that could help improve the lives of all children: integration."
What he and the school district found was that although demographic maps showed a perfect opportunity to diversify some schools, old boundaries and biases were as deep as ever. Many saw integration as a zero sum game where some would win at others expense. This fear opened new wounds that made integration as tough as it was decades ago. An integration plan that would have reassigned 2100 students was voted down and eventually whittled down to one that would only reassign a couple hundred. Read the full story here.
As a follow-up to the debate, The Sun, Maryland Humanities Council and Loyola University of Maryland's Center for Innovation in Urban Education will be hosting a community dialogue about the path forward for school integration.
The forum will be held Wednesday, March 29 from 6:30 - 8 p.m. at Loyola University. For more information and to RSVP go to www.loyola.edu/join-us/bridging-divide.