Friday, March 17, 2017
Members of the Kentucky legislature are taking aim at school integration. If its new legislation succeeds, it will degrade the educational opportunities available to thousands of kids and, ironically, move in the opposite direction of the stated positions of the new Secretary of Education.
After the Supreme Court held in Parents Involved in Community Schools v. Seattle that Jefferson County's voluntary integration plan was unconstitutional, the school board reworked its student assignment plan. The problem with the old plan, according to the Court, was that the district had not shown that the consideration of race was necessary to achieve integration. At least in Jefferson County, maybe the Court was right. The district came up with a new plan that relies on race-nuetral factors and appears to work relatively well. And like the old plan, it remains popular among families there. As Barrett Holmes Pitner reports, "[a]s of 2011, 89 percent of Jefferson County residents supported the school system’s desegregation policies (PDF)."
A constitutional plan, a popular plan, local prerogative, and the benefits of integration apparently are not enough to dissuade those in the state legislature from monkeying with education policy. Kentucky House Bill 151 would "provide that those residing within the shortest travel distance to a school be given first priority in cases where the capacity of the school may be exceeded; permit a child to attend a school other than the one closest with permission of the district." The logical inconsistency of this legislation with other education policies and research findings is astounding.
Both of Kentucky's U.S. Senators just voted in favor of Betsy DeVos as Secretary of Education. DeVos stands on two major policy positions: more local control and more student choice. Just this week, DeVos told the Council of the Great City Schools, a coalition of 68 big-city school districts, of which Jefferson County is a member, that “When Washington gets out of your way, you should be able to unleash new and creative thinking to set children up for success.” Although this statement does not reference state government, it is implied. After all, she was talking to districts, not states. In other words, let local districts unleash their creative thinking.
As far as creativity goes, Jefferson County is in the top one percent. It found a way to make integration work, make it popular, and make it voluntary in a place that was once mandated to desegregation under force of court order because those in power staunchly opposed it. This new bill would crush this creativity and allow the resegregation of schools, even though that result is not what most families there want. So much for respecting parents and local control.
The bill is equally problematic in terms of choice. Jefferson County's current plan does not involve compulsory integration. It works because it allows parents choice of where they will go to school, imposing only a few constraints around the edges when those choices threaten to tip a school toward resegregating. But by giving parents an absolute veto and priority for local neighborhood schools, this new bill would strip many families of the right to choose an integrated school.
This bill does not line up with voucher ideology either. The bill would, in effect, tell families that if you want to exercise school choice outside of your neighborhood, you need to look for a voucher. In your traditional public schools, we will preference neighborhoods. How can choice be a generally desirably things, but bad when it produces integration.
I, however, would rather just put politics aside and have us think about what works to improve educational opportunity. Half a century of research shows that integration is incredibly effective in closing achievement gaps. The reason largely lies in the harms that students suffer in predominantly low-income schools. As I detail here, "It is not just that a student’s individual demographic characteristics make him or her less likely to succeed; rather, high-poverty schools have a negative impact on a student’s educational outcomes regardless of the student’s individual socioeconomic status. In at least six major academic categories, predominantly poor and minority schools cause harm or deliver inferior educational opportunities to students." Access to integrated middle-income schools does the opposite. And to be clear, middle-income and white students receive significant educational benefits from attending integrated schools as well. Contrary to popular belief, the benefits of integration are not a one-way street.
Fortunately, the bill currently appears to have stalled, in part, because of the effect it might have on charter schools, not due to any of the other above concerns.
Thursday, March 16, 2017
Case Challenging Segregation As a Violation of State Right to Education Heading to Minnesota Supreme Court
On Monday, the Minnesota Court of Appeals in Cruz-Guzman v. Minnesota ruled that plaintiffs' challenge to segregation in public schools was non-justiciable under the state constitution. Plaintiffs, among other claims, argued that segregated schools deprive students of an adequate education. While the court recognized that the state has a duty to provide a uniform, thorough, and efficient education under the state constitution, the court reasoned that the constitution does not include any qualitative standards or judicially manageable standards. Thus, it lacked a basis upon which to find that segregation did not or did not deprive students of the requisite level of education. The court wrote:
Appellants argue that the Minnesota Constitution does not provide textual support for respondents’ assertion of a constitutional right to an “adequate” education. As appellants note, “[T]he word ‘adequate’ does not appear in Minnesota’s Education Clause.” Instead, the Education Clause sets forth the legislature’s duty to establish a “general and uniform system of public schools” and to secure, “by taxation or otherwise,” a “thorough and efficient system of public schools.” Minn. Const. art. XIII, § 1. The clause does not state that the legislature must provide an education that meets a certain qualitative standard. Moreover, assuming without deciding that the Education Clause requires the provision of
an education of a certain quality, the clause does not set forth the relevant qualitative standard.
Respondents’ request for relief therefore requires the judiciary to both read an adequacy requirement based on a qualitative standard into the language of the Education Clause and to define the qualitative standard. Respondents have a different view, arguing 9 that the judiciary merely needs to determine whether appellants have violated the purported constitutional duty to provide an adequate education. We disagree: to determine whether appellants have violated the purported obligation to provide an adequate education, we must also define “adequate” and the attendant qualitative standard.
The problem of justiciability is not new to adequacy claims. Nearly ever court in a school funding and quality cases has had to confront the problem. A majority of courts, when entertaining similar claims, have held that their constitution includes a quality or adequacy competent and that courts could define its rough outlines.
The plaintiffs' lead attorney, Dan Shulman, has already said they will appeal to the state Supreme Court. Dan Shulman, an attorney for the plaintiffs, said he will appeal the decision to the Supreme Court. As Twin Cities Pioneer Press reports,
“Courts all over the country have said that an adequate education is something that courts can determine, and in our view that includes the Minnesota Supreme Court,” he said in an interview Monday. Shulman noted that in a 1993 ruling on a school-funding lawsuit, the Supreme Court established that Minnesota children have a fundamental right to an adequate education.
This case is definitely worth watching. As some may recall, Shulman represented plaintiffs in a segregation case two decades ago that alleged segregation violated the state education clause. The case was successful on multiple counts, so much so that the state settled the case before the state supreme court could rule on it. That settlement handed plaintiffs a desegregation remedy, but failed to establish precedent on which later plaintiffs could rely. Thus, the issue still remains one of first impression in Minnesota.
Thursday, February 16, 2017
The Civil Rights Project has released a new report on school segregation in Washington D.C. The report is particularly interesting because it reveals the ways in which segregation in D.C. is more nuanced than in other major cities like New York and Los Angles. White enrollment in the D.C. Public Schools is up over the last two decades and its total school enrollment is relatively steady. In other words, white flight from DC ended some time ago, and has now reversed to some extent. Likewise, overall "private school enrollment has plummeted in spite of tuition vouchers," although white enrollment in private school remains steady. Public apartheid schools--those with 99%-100% non-white enrollments--have also dropped significantly. Ninety percent of African Americans attended an apartheid school in 1992, but that number dropped to 71% by 2013. Yet, notwithstanding those trends, charter schools have seemingly gone in the other direction. "The charter schools overall have a less diverse and more segregated enrollment than the public schools."
To be clear, however, segregation in the public schools remains extremely high and the report focus on missed opportunities that could have achieved significant integration in D.C. The report also contrast D.C. to the surrounding districts, noting that across the river Arlington's schools are predominantly white, while "[t]he relatively small Alexandria district showed positive potential by enrolling a balanced number of each racial group: whites (27%), blacks (33%), and Latinos (32%). The segregation level in the district was the lowest among the six immediate metro districts."
Get the full report here.
Thursday, February 2, 2017
Yesterday, I wrote about how Secretary of Education John King worked until the final days and helped push through the Department's guidebook on racial diversity and integration in public schools. Tuesday also brought news of a major desegregation breakthrough in Mississippi for the Department of Justice. This one, however, is even more surprising and comes on top of another major Department of Justice desegregation victory in Mississippi last year.
The new victory involves the Cleveland School District. It had been operating a freedom of choice student assignment plan that had been producing significant racial imbalance between its two high schools and two junior high schools. One high school, for instance, was forty percent white while the other high school could count its white students on one hand. The district court had ordered the school district to merge its schools per the Department of Justice's proposal. The school district appealed that ruling and the Court of Appeals issued a stay, blocking the order to desegregation. Somehow on Tuesday the Department of Justice managed to secure an agreement with the district, whereby it would drop its appeal and consolidate the schools anyway. The Clarion Ledger reports:
[T]he Cleveland School Board announced at Monday’s school board meeting that it had reached a settlement in the desegregation lawsuit and would drop its petition, which sought to maintain the district’s current open enrollment system.
District lawyer Jamie Jacks said the decision by the board was unanimous.
“It felt moving forward with a solid plan would serve the district, its students, faculty, parents and community best in the long run,” Jacks said in a statement. “The district is looking forward to making 2017-18 a successful year as we all move forward together.”
The work of enforcing decades-old desegregation cases in small little districts across the country easily goes unnoticed. And even when these little districts act entirely contrary to law, it is probably easy enough for some, including our courts, to look the other way. At least, that is my take on a number of desegregation decisions over the past decade. A lot of credit goes to the Department of Justice for pushing this case from the start and seeing it through, even as the keys to the White House changed hands. It is also worth acknowledging that this school board agreed to do the right thing. It is altogether possible it could have avoided doing so.
On a more global level, this case also offers a pristine example of why the leadership in the Department of Justice matters so much.
Wednesday, February 1, 2017
Former Secretary of Education John King said the Department would work until the last moment, as it had important work still to do. January 19th, 2017 did not disappoint. The Department released a guide for improving diversity in public schools. The introduction states:
This brief provides information to support school districts and stakeholders seeking to improve student diversity in their schools through voluntary, community-led programs as part of an overall effort to increase equity and excellence for all students. Diversity can include many factors, such as race, national origin, disability, socioeconomic status, and language proficiency. What follows is an action-oriented summary of considerations when embarking on efforts to increase student diversity, starting with possible steps to consider when conducting a diversity needs assessment and planning for implementation. Potential diversity strategies and a few examples from the field are included, as well as thoughts on efforts to sustain an inclusive environment once diversity strategies are being implemented.
The guide goes through the nuts and bolts of data collection, decision making, and funding for diversity programs--the basic things a school needs to look at to determine what is or is not necessary. It then focuses on five specific types of programs and policies that schools can use to diversify: magnet schools; controlled choice; open enrollment; high-quality charter schools. The guide also offers suggestions for maintaining an inclusive environment in diverse schools: culturally relevant instruction, detracking/expanding access to advanced coursework within schools; diversifying the teacher workforce; and teacher development.
There is nothing particularly new in the document, but it offers good resources and a strong vote of confidence for districts considering positive changes.
Get the full report here.
Friday, January 13, 2017
The National Coalition on School Diversity has issued an updated report of the Obama Administration's support for school integration. It concludes that "while much remains to be done, the Obama Administration has made concrete progress on school integration policy." The report focuses on four categorical areas in which the administration focused on integration: its 2011 Guidance on voluntary school integration; school diversity language and incentives in USDOE competitive grant programs for K-12 education; school diversity language and incentives in Early Childhood Education programs; and Reauthorization of the Elementary and Secondary Education Act and “ESEA Flexibility.” Get the full report here.
Thursday, January 12, 2017
The Law School Admission Council's Diversity Committee Announces a Writing Competition on: WHY PIPELINE PROGRAMS TARGETING STUDENTS FROM UNDERREPRESENTED RACIAL AND ETHNIC BACKGROUNDS ARE ESSENTIAL TO THE FUTURE OF THE LEGAL PROFESSION
The Law School Admission Council (LSAC) is committed to fostering diversity in law schools and the legal profession. Currently, through its Diversity Committee, LSAC sponsors and funds a number of initiatives aimed at increasing the diversity of the legal profession. These initiatives include organizing national and regional pipeline workshops that promote the development of outreach and early educational programs for students from diverse backgrounds; offering grants to support diversity initiatives at LSACmember law schools; maintaining databases and websites such as DiscoverLaw.org with information, resources, and programs that encourage students of color, students living with a disability, and LGBTQ students to pursue a legal career and equip them with the tools for successful admission and graduation from law school; and engaging in ongoing collaborative programs and projects with prelaw advisors and students at Historically Black Colleges and Universities (HBCUs), Hispanic Association of Colleges and Universities (HACUs), and Tribal Colleges and Universities (TCUs).
For decades, studies consistently have shown that students of color, students living with a disability, and LGBTQ students are underrepresented in most law schools. As a consequence, smaller percentages of persons who represent these groups are graduating from law school and entering the legal profession. This writing competition is designed to reinvigorate the dialogue about the recruitment and retention strategies that law schools should deploy to yield a more diverse class of graduates who will enter the legal profession.
Include a cover page with your submission. The cover should only contain the author's name, title of the paper, mailing address, law school affiliation, law school status (lL, 2L, 3L/4L), a telephone number where the author may easily be reached, and an email address.
To allow anonymous evaluations, please do not put your name on the actual paper. The title on the paper must precisely match the title on the cover page that contains the identifying information described above.
Email entries to DiversityOffice@LSAC.org. Only electronic files (PDF or Word) will be accepted.
A panel of law school faculty, legal writing instructors, and LSAC diversity committee members will evaluate each submission and select the winning papers. If no paper meets the standards set forth in this announcement, the panel may decide either not to issue an award or publish a paper. The panel's decision will be final.
All papers must be sent no later than 5:00 PM EST on Friday, March 31, 2017. No extensions will be granted under any circumstances. Papers submitted after the deadline will not be eligible for an award. All submissions become the property of LSAC, and LSAC will retain the copyright of any winning papers selected for publication.
Topic: Why Pipeline Programs Targeting Students from Underrepresented Racial and Ethnic Backgrounds Are Essential to the Future of the Legal Profession.
Eligibility: Current JD candidates who are in good standing at LSAC -` member law schools
Length and Format: Up to 20 pages (5,000 words or less), 8½ by 11 inch paper, double spaced, 1-inch margins, Word format, 12-point font, with endnotes written in "A Uniform System" of Citation: (The Blue Book) format
Evaluation Criteria: Essays will be judged according to:
• Research and use of relevant sources and authorities (cases; law review articles; other secondary sources, including, but not limited to, books, newspapers, and magazines; and empirical and sociological studies)
• Quality and clarity of legal analysis, persuasion, and writing
• Understanding, interpretations, and conclusions regarding diversity and the implications of diversity in this context
• Full compliance with all competition procedures
Awards: One winning paper will be selected from each of the three (3) qualifying categories of eligible students (1L, 2L, 3L/4L). Each winner will receive a $5,000 cash prize and the winning essays will be posted at DiscoverLaw.org. In addition, one winning paper will be submitted for publication in the Journal of Legal Education or similar publication.
Questions: Please send your inquiries to the LSAC Diversity Initiatives
Office – DiversityOffice@LSAC.org.
Monday, November 28, 2016
Erika Wilson's new article, The New School Segregation, 102 Cornell L. Rev. 139 (2016), is now available on westlaw. She offers this abstract:
The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980s, schools in the South became among the most desegregated in the country. An important but often underappreciated tool that aided in the fight to desegregate schools in the South was the conventional and strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially and economically segregated municipal boundary lines.
Some affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law.
This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race-neutral proxy to create segregated school systems that are immune from legal challenge. It concludes *140 by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically and decentralized public education governance structures more broadly.
Monday, November 7, 2016
Last week's New York Times recognized the contribution of David Seeley, who served as Assistant Education Secretary during President Lyndon Johnson administration. In a June 2016 interview with the website The 74, Seeley described himself as a "soldier" in while working for the Eisenhower administration (1956-59), negotiating school districts' "total massive resistance" to desegregation after Brown v. Board of Education, work that he continued in the Johnson administration. Dr. Seelely wrote an influential book on building community schools, “Education Through Partnership," and taught at CUNY after his career in national and city government. Seeley reflected in the June interview that the work on desegregation is far from over:
We got practically all of [the school districts] to come in with plans, but many made it easy for the “separate but equal” doctrine to be kept alive by leaving integration up to a school’s or individual family’s choice … So we didn’t get much integration going, nor did we convert the Southern people, who I think are still unconverted. They’re right in a resurgence of the old Confederacy today — today, right now, we’re still confronting this. … We’re definitely not past the race problem. Right here in Staten Island, too, it’s gotten worse as a matter of fact.
The NYT obituary is here.
Thursday, November 3, 2016
Kandice Sumner, a public school teacher, breaks down racial and socio-economic inequality in our public schools in this straightforward and experiential-based Ted Talk. The webpage offers this introductory summary:
Why should a good education be exclusive to rich kids? Schools in low-income neighborhoods across the US, specifically in communities of color, lack resources that are standard at wealthier schools — things like musical instruments, new books, healthy school lunches and soccer fields — and this has a real impact on the potential of students. Kandice Sumner sees the disparity every day in her classroom in Boston. In this inspiring talk, she asks us to face facts — and change them.
One of the more interesting themes of her talk is the argument that our education system has never been designed to offer equal or quality opportunities to communities of color and that when it does occur it is random or potentially a result of private philanthropy rather than the education system itself. In one snippet of the conversation, she offered:
If we really, as a country, believe that education is the "great equalizer," then it should be just that: equal and equitable. Until then, there's no democracy in our democratic education.
On a mezzo level: historically speaking, the education of the black and brown child has always depended on the philanthropy of others. And unfortunately, today it still does. If your son or daughter or niece or nephew or neighbor or little Timmy down the street goes to an affluent school, challenge your school committee to adopt an impoverished school or an impoverished classroom. Close the divide by engaging in communication and relationships that matter. When resources are shared, they're not divided; they're multiplied.
You can watch her talk here.
Monday, September 12, 2016
A School District on the Brink of Collapse: Educational Opportunity at the Intersection of Race, Poverty, and Geography
For the past few years, Pennsylvania's education system has stood at the brink of disaster in some shape, form, or fashion. First came the state's decision to retreat from its new school funding formula and impose new cuts. Then came stories of completely upside down budgets, with public schools bleeding money to brick and mortar charter schools. Those were followed with rampant corruption and a federal indictment of a virtual charter school operator. Mixed in was the story of a Philadelphia girl who fell ill and died on a day when no nurse was present at school due to funding cuts. This brought national attention on the state's policies. This past school year did not look much better. It started with no state education budget. As late as March, the state was still flirting with finishing the school year in the same position--with no school budget. Along the way, there were stories of unpaid teachers, shuttered pre-kindergarten programs, extended winter breaks to save money, and the potential collapse of entire school districts.
The Erie School District was one of those districts pushed to the brink. Its superintendent indicated that the small district might be forced to dissolve itself and allow its students to be subsumed by the much larger neighboring suburban districts if the state did not pass a budget and adopt a more equitable funding formula. The state passed a budget and tinkered with the funding formula, but neither was substantial enough to change the underlying reality in Erie. According to NPR, it still is far from having the resources it needs and is considering dissolution:
Erie's schools have been pushed to the brink after six years of deep budget cuts, and he believes the children in the city's district — which predominantly serves students of color — are being systematically shortchanged.
That's in part because urban school districts in Pennsylvania face a particularly brutal logic.
They serve the poorest, most needy students. Yet, when it comes to state funding per pupil, most of them don't make the top of the list.
Even though Erie is one of the most impoverished districts in the state, and has one of the highest percentages of English language learners, the district currently receives less per-pupil funding from the state than hundreds of other districts.
Excluding pension costs, per-pupil spending in Erie is less than it was in 2008-09.
. . . .
The issue in Erie is even more complicated because of Pennsylvania's education funding policies. For most of the past 25 years, the state has distributed money without a rational, student-based formula.
So although Erie is one of the state's most challenged districts, the state sends more money per-pupil from its main pot of cash to most other districts in the county — including wealthier ones, with less pressing needs, that already have an easier time raising local funds.
"The differences between the resources we have in the county compared to in here are just shocking," said Brian Polito, chief financial officer for Erie Public Schools."
Polito used to have a similar job in North East, a rural district in Erie County. Drawing a comparison, he says last year Erie spent $6,000 dollars on its 18 libraries.
"In the school district that I came from, we had three libraries and our budget for library resources was almost $40,000."
It's examples like these that has Millcreek parent Genene Mattern completely supporting the stand that superintendent Jay Badams has taken on closing the city's high schools.
"People need to get mad. People need to get loud, because the more you just sit and let it happen, I think the more they figure, 'well, they're okay with that,'" she says.
The Erie district did receive a modicum of relief in the state budget that recently passed, including a $3.4 million boost in basic education funds, and a one-time $4 million dollar emergency supplement.
But the systemic issues will persist, and Erie's finances are slated to be in the same straits by the end of the school year.
Talk of dissolving Erie's district, however, is causing a lot of uneasiness in surrounding districts. They are predominantly middle-income and white, while Erie is predominantly poor and minority. Some of the concerns are more explicitly related to race, while some others hearken back to the facially neutral but coded language that opposed busing during desegregation in the south. The problem, they would say, is not race but the difficulties children will face when they attend something other than a neighborhood school. NPR also asks: "Would Erie's crisis even be happening if it was a majority white district?" This question, however, may be best directed at state policy than just local politics.
The unfortunate situation in which Erie's school children find themselves is the sad story of race, poverty, and geography in American schools. Geography is highly determinate of educational opportunity and probably even more so in most northern locales, where school districts are much smaller. The smaller we draw district lines, the higher the capacity to wall-in or wall-out particular neighborhoods. As a practical matter, districts become far more homogeneous than an overall county's or region's demographic population. In other words, small districts increase racial and socio-economic isolation. When this isolation is coupled with state policy that largely bases education funding on local property taxes, it produces highly unequal resources between districts. In other words, the districts become segregated and unequal. When this occurs, state level funding solutions become politically more difficult. The education world has been divided by race, class, and resources and there is little incentive for the "haves" to agree to plans that would send more resources to the "have-nots." In other words, the suburb votes are stacked against urban school districts.
The only apparent solution for districts like Erie is to cut through the structural morass of inequality and blow up the system--to, in effect, say we reject district lines, we reject inequitable funding systems, we reject a system that leaves inner city children to fend for themselves. We give up, and the state and its suburban school districts must now find a way to integrate us into its flawed system. No wonder those who control the levers of power are so upset in Erie. They should be upset in Harrisburg too.
Monday, August 29, 2016
In a Rare Case, School District Does Not Use Demographic Change As an Excuse to Give up on Integration
In 1970, the United States brought suit against the Tyler Independent School District in Texas. That lawsuit initiated what would become nearly a half-century desegregation case. Last week, both the United State and the school district agreed that the district had reached unitary status, meaning that it had eliminated the vestiges of discrimination to the extent practicable. The district court then entered an order closing the case.
For those that have read this blog before, you might expect a series of critiques to follow news that a court had relieved a district of its desegregation obligation, but based on the court's description of the facts, this one appears to be the real deal. The court explained that "the number and percentage of Hispanic students enrolled in TISD schools has risen dramatically since 1970, from 0.6% to 37.1% in the 2007-08 school year to 45.7% now." This is normally the type of fact that precedes the conclusion that demographic shifts have overwhelmed a district's desegregation efforts and, thus, it cannot be held accountable for current segregation patters. In fact, this was the exact line of reasoning in Freeman v. Pitts, in which the Court held that DeKalb County, Georgia, no longer needed to pursue integration in student assignments.
The district court in the instant case, however, did not have to go there because
[a] review of the parties’ statistical report, Joint Motion at 6-7, and the recent Compliance Report, reveals that there are few schools in any of the grade-level categories that reflect either a higher or lower percentage of student enrollment by race. None is significant when viewing the TISD enrollment statistics overall. Further, as the parties point out, of the eight categories of enrollment showing a somewhat higher or lower percentage compared to the averages for TISD overall, four of them reflect schools that are proceeding under one or the other of the Court’s two most recent attendance zone modifications approved in conjunction with the construction and opening of new or renovated schools. . . . These coincide with four of the five highest variations from the average, none of which is concerning.
. . .
Here, the enrollment statistics convincingly reveal that TISD has achieved the desegregation goal for student assignments in its schools at all levels. Further, having reviewed the statistical compilations from the last several years of TISD’s Compliance Reports, the Court finds that TISD has maintained this student assignment status and operated as a unitary system during that period.
First, assuming no egregious inequalities were papered over, credit is due the school district for taking steps to maintain integrated schools for an extended period of time, notwithstanding significant demographic changes in the district. Second, that this district had the capacity and commitment to do so begs the question of why the United States Supreme Court and lower courts have been so quick to absolve other districts of their obligations. As I have argued elsewhere, the mere instance of demographic shifts is entirely irrelevant to the question of whether a district has carried out its affirmative obligation under Green v. New Kent County to eliminate the vestiges of discrimination root and branch. The question of whether the district has discharged its duty should always precede the question of demographic shifts. Otherwise, a district acting in less than good faith could just stall in its desegregation efforts in hope that inevitable demographic shifts will eventually relieve it of its duty. Unfortunately, far too many districts seemed to adopt this route over the decades.
Third, demographic shifts raise causal questions, but demographic shifts are not dispositive on those questions. Demographic shifts might be a result of a district's student assignment policies themselves, might account for only a portion of segregation, might have produced segregation only because the district failed to act, or might have been the dominant cause of current segregation. Too often, however, courts have jumped to the last conclusion without giving any serious attention to the other possibilities. In effect, the occurrence of demographic shifts has acted as an affirmative defense for districts, placing the burden of proof on plaintiffs, which, of course, is counter to the doctrine articulated in Keyes v. New Kent County.
Fortunately, the Tyler Independent School District appears to have cut through all these legal questions and loopholes by simply doing the right thing.
Friday, August 26, 2016
EdBuild has released a report of what it calls the most segregated schools in the country. The goal of the study was "[t]o explore how school district borders isolate the neediest students [by] conducted[ing] an analysis of each of these boundaries across the country." It found that
A typical school district border in the United States separates a pair of districts whose student-age poverty rates differ by seven percentage points. The difference between the 50 most segregated neighbors ranges from 34 to 42 percentage points: an average that is more than five times the national mean. Among the 50 pairs, the wealthier school districts have a poverty rate of just 9 percent, while their neighbors average 46 percent— 400 percent higher. This means that wealthier peers enjoy a poverty rate that is less than half the national average; whereas their neighbors enroll over 150 percent more impoverished students than the average US district. The 50 higher-income areas are also far smaller enclaves of wealth– their schools serve 15,000 less students on average. Additionally, the average homes in the wealthier districts are worth $131,000 more than their neighbors’. Because local funds for education are tied to property wealth, high-poverty districts are not able to generate as many funds locally. In fact, even though several of the 50 high-poverty districts tax themselves at a higher rate than their neighbors, they generate $4,500 less per student from local taxes. The 50 most segregating borders are found in only 14 states. Ohio contains nine, more than any other state. Alabama has seven. New York and Pennsylvania each contain six. Twenty-nine borders, almost 60 percent of the top 50, are located in the Rust Belt region. States with countywide school districts, like those in the south and the west, are almost entirely absent from the list.
The five most-segregated were the following:
- Detroit Public Schools - Grosse Pointe Public School System: Difference in School-Age Poverty of 42.7 percentage points
- Birmingham City School District - Vestavia Hills City School District & Mountain Brook City School District Difference in School-Age Poverty of 42.3 & 42.0 percentage points
- Clairton City School District - West Jefferson Hills School District Difference in School-Age Poverty of 41.7 percentage points
- Dayton City School District - Beavercreek City School District & Oakwood City School District Difference in School-Age Poverty of 40.7 & 40.3 percentage points
- Balsz Elementary School District - Scottsdale Unified School District Difference in School-Age Poverty of 40.3 percentage points
The reports concludes that
When the Supreme Court established that desegregation orders could not be enforced across district boundaries, it significantly reduced the possibility of achieving meaningful integration. And because America relies so heavily on local property taxes to raise funds for education, the inability to cross district boundaries institutionalizes income segregation and contributes to vast funding disparities among public schools. In this report, we highlight the worst examples of socioeconomic segregation across school district borders as illustrations of a problem that can be seen all across the country. These divisions are harmful for all students, but especially for those who reside on the wrong side of these borders. There you will find 26 million children living within high-poverty school districts, effectively trapped by impermeable borders, while greater educational opportunities often are being enjoyed by their better-off peers right next door. The fact, too seldom acknowledged, is that district boundaries themselves compound the inequalities that our public schools were intended to conquer. In present day America, we allow invisible lines to determine the fate of our youngest and most vulnerable citizens. While many focus on policies that will bring more resources into these underserved districts, very few question why these lines exist in the first place. Our wealthy are consigning lower-income students to a lesser caste by cordoning off their wealth and hiding behind the notion of “local control”. We’ve created and maintained a system of schools segregated by class and bolstered by arbitrary borders that, in effect, serve as the new status quo for separate but unequal.
Thursday, August 25, 2016
Lawsuit Revisits the Question of Education As a Fundamental Right Under the U.S. Constitution, But Is There More To It Than That?
Plaintiffs in Connecticut have filed a new lawsuit against the state challenging the "inexcusable educational inequity and inadequacy" in its school "that prevent inner-city students from
accessing even minimally acceptable public-school options." The complaint argues that these problems are a result of:
First, Connecticut has instituted a moratorium on new magnet schools (Conn.
Gen. Stat. § 10-264l(b)(1); Public Act No. 09-6, § 22 (Spec. Sess.); Public Act No. 15-177, § 1), despite the fact that a large majority of Connecticut’s magnet schools consistently outperform inner-city traditional district schools.
Second, Connecticut’s arcane and dysfunctional laws governing public charter
schools (Conn. Gen. Stat. §§ 10-66ee(c)-(d), 10-66bb(a), 10-66bb(g)) prevent high-performing charter schools from opening or expanding in the State, despite the fact that Connecticut’s few charter schools consistently outperform inner-city traditional district schools.
Third, Connecticut’s inter-district Open Choice enrollment program (Conn. Gen.
Stat. §§ 10-266aa(c), 10-266aa(e), 10-266aa(f), 10-266aa(g), 10-266aa(h)) penalizes school districts that accept students from inner-city school districts, thus dooming the viability of the very program ostensibly designed to provide Connecticut’s students with quality public-school options.
As a remedy, plaintiffs ask:
for a simple declaration that would have immeasurable benefits for many thousands of children: By forcing Plaintiffs and thousands of other students to attend public schools that it knows are failing, while impeding the availability of viable public educational alternatives through the Anti-Opportunity Laws, Connecticut is violating students’ federal due process and equal protection rights. Connecticut should be required to take any and all steps necessary to ensure that neither Plaintiffs nor any other students within its borders are forced to attend a failing public school.
The case is a hard one to pigeonhole. On the one hand, it attempts what I and others have long advocated for: a reconsideration and overturn of San Antonio v. Rodriguez. As the Connecticut Mirror reports,
Forty-three years have passed since the U.S. Supreme Court narrowly ruled in the landmark San Antonio v. Rodriguez school-funding case that education was not a constitutional right and that the disparate spending on education for students from low-income neighborhoods was not a violation of the equal protection clause of the U.S. Constitution.
"The time has come for the federal courts to recognize a federal constitutional right to some minimal, adequate level of education. We felt Connecticut was a very good place to bring it," said Theodore J. Boutrous, one of the attorneys representing the seven student plaintiffs from low-income families.
Boutrous told reporters during a Wednesday conference call that the Rodriguez decision "left open the possibility that a claim like ours could succeed" since that case focused on school funding disparities while this lawsuit focuses on the limited options students have to leave failing schools.
. . .
Experts observing this case say a lot is at stake.
On the other hand, the case takes a factual angle in making out this claim that sounds a lot like free market thinking in education. Moreover, Students Matter, the group that has lead the constitutional challenge to teacher tenure, is backing the case. As a factual matter, the case would appear to be about student choice. It holds up the interdistrict magnet schools created as a result of the Sheff v. O'Neill litigation, which are designed to further integration, as important models for improving educational opportunities for minority student, but argues those type of magnets are not the only viable option. More charter schools, it argues, could create similar options to escape currently unconstitutional traditional public schools. In this respect, the plaintiffs are trying to, in effect, piggy back off of the success of Sheff.
My initial response is that there is a big gaping hole in this use of Sheff magnets. Sheff magnets are an integrative cure to a segregative injury. It is not clear that charters are a proportional or analogous remedy to anything, nor did I notice any indication that these charters would follow the lead of Sheff magnets. With that said, the complaint follows up its charter school claim with the suggestion that the state expand inter-district magnet opportunities, which is consistent with Sheff.
On the whole, however, these limited opportunities are evidence that the plaintiffs say shows that the state is failing to offer even a minimally adequate education, which Rodriguez indicated might be protected. The big question for me is what the plaintiffs really want. Is it to right the wrong of Rodriguez or to dress up a charter school plea in language that sounds appealing to a lot of civil rights advocates that might otherwise be adverse? I do not know enough about the key players in the case to have a firm opinion, but the prior constitutional challenge to teacher tenure offers some hints. What I am confident of, however, is that danger lurks if issues as weighty as Rodriguez are in the wrong hands.
Thursday, August 11, 2016
A few days ago the New York Civil Rights Coalition sent a letter to Moraine Valley Community College to
call your immediate attention, and to request your formal response, to the Chicago Tribune August 4th piece, and in other media, about a college course at Moraine Valley Community College reportedly exclusively for black (African-American) students.
Especially concerning to us are quotes attributed to college publications and officials that explain and seemingly justify the racial restrictions on enrollment in the required college course, “College: Changes, Challenges, Choice.” According to published reports and the Chicago Tribune piece, a catalog of course listings Note specifies that registration to a section of the aforementioned course is “limited to African-American students.” The piece quotes the college’s assistant director of communications, Jessica Crotty, as explaining that the course, which meets for 8 weeks, is required to be taken by students in their first year. The catalog describes the course as one that “provides [the student] an opportunity to assess your purpose for college, assess your study strategies, set college and career goals, examine your values and decision-making skills, and develop an appreciation for diversity.”
In explaining and, arguably, defending racial restrictions on some sections of the course, Ms. Crotty is quoted as saying: “Sometimes we set aside sections for specific populations, including veterans and older students.” (Emphasis added). Ms. Crotty added, and I quote: “Students feel comfortable and are more likely to open up because they’re with other students who are like them.” (Emphasis added),
I find it strange indeed that a course that purports to guide and develop students’ “appreciation for diversity” employs racial separatism and segregation as acceptable and effective means for teaching that “appreciation” for diversity. Most shockingly, I find it incredible and disingenuous on the part of any educational institution and/or higher education official to equate offering courses in racially restrictive ways to that of clustering students in focus groups that are not themselves categories prohibited by law or regulation.
Worse, we are shocked and appalled by the notion that racial segregation can be argued for, much less justified, on the premise that statistical data or “social science evidence” may exist somewhere that allegedly supports the college’s policy and/or practice of restricting or conditioning enrollment in a course of study in any academic program by race or skin color. Such argumentation obscures and defies everything we know about the wrong-headedness of classifying and treating students differently by reason of their “race”, and separating them by race and/or skin color in the academy.
Separation or segregation by race defies state and federal laws, and Supreme Court decisions that prohibit differential treatment of black students or of other students because of their skin color or groupings that are premised and justified by stereotypes about their racial group.
Tell me, please, that these media reports are errant.
Tell me, please, that Moraine Valley Community College is not actually segregating students in academic courses by race and/or skin color, in ways that separate them from their peers of other skin colors and in ways that bar any student from enrolling in a course designated for students of a particular race only.
In explicit terms, it is not sufficient for the college to offer psychobabble rationalizations for reprehensible racial classifications and legally and morally suspect groupings. We find it especially abhorrent for a college to project and invoke the bogus argument that any principled or singular objection to classes and courses for blacks only is itself a manifestation of [whites’ and others’] hostility or racism towards blacks. That’s racial and sheer idiocy. Rather, the grouping of black students in a course designated only for “them” is the practice of racism; it is the same as the college decreeing that sections of a course will be restricted to students who are “white/Caucasian,” and, therein, justified in the guise that students of a certain skin color supposedly feel more comfortable in discussing sensitive matters with peers of ‘”their own kind.”
Classes for “whites only” and/or classes for “blacks only” are one and the same—sheer racism. Such racial restrictions violate every tenet of equal protection under the law, and of academic integrity—notably the open pursuit of knowledge. I need not recount here or remind you what the federal and state laws require and prohibit. Indeed, Moraine Valley Community College’s web site and mission statements make clear that its leadership and trustees are keenly aware of the legal framework and guidelines for avoiding discriminatory policies and practices: “It is the policy of Moraine Valley Community College not to discriminate on the basis of race, color…” or “conduct in its educational programs, activities or employment practices” discrimination based on race, color. Thus, we cannot abide the alibis and excuses offered by any official or spokesperson for a community college for registering students—or barring students’ registering or enrollment to any academic offering—on the basis of any student’s race or skin color.
The mocking of the law and the sheer arrogance implicit in decision-making based on race and skin color “differences” are at hand. Any policy or effort that restricts enrollment to a college course on such objectionable and prohibited racial grounds—is profoundly obvious and disturbing. Such racial discrimination raises troubling and substantial questions about the college’s commitment to state and federal law—indeed to the rule of law—and to its commitment to the open pursuit of knowledge which is a fundamental of the academic experience and mission. To defy the law and regulations and academic principles in such a flagrant fashion suggests the lowering if not outright abandonment of rigorous standards of the college’s accreditation. That is why we are addressing this open letter to the college’s president and to the president of the Higher Learning Commission, the college’s accrediting authority. We are also copying this letter to the Chair of the Board of Trustees, because it is our belief that the trustees share responsibility for upholding the law and for fulfilling the college’s academic mission without compromise with fads and racist shenanigans.
With confidence, we are of the opinion that a self-respecting board of trustees and Higher Learning Commission will promptly recognize and act on their duty to intervene and to correct any violations of law and public policy and to remedy any diminution of academic standards. The imposition of any racial qualification or restriction on any student, of any race, to enroll in any college course because of his/her race or skin color, cannot stand. The objection to such race-based restrictions must by definition take exception to any purported rationalization that the affected or excluded racial group will not contest the racial classification. Likewise, we are not impressed with the argument that the affected minority group or the excluded members of other racial groups may “opt” to enroll in alternate courses that do not have the racial restrictions.
Let us be clear; racial segregation as offered or practiced by a community college is objectionable on legal and educational grounds. That there are some blacks, and whites, who advocate such restrictions on course enrollment, matters not the least bit to us. In our view, racial restrictions and qualifications for a course are improper classifications and are evidence of discrimination per se, in purpose and effect. As my mentor, Dr. Kenneth B. Clark, the social psychologist, observed while he was alive—in objecting to the then fashion of separatist fads that were sweeping some college campuses, commented:
“In 1954 [when the U.S. Supreme Court outlawed enforced segregation in public education] it would have been the consensus in the black and white liberal communities that white racism would have gained its greatest triumph had it been able to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.’
Segregation by race then and today is not acceptable; and it is not desirable.
Higher education leaders should express the strongest opposition and outrage over this latest fad and manifestation of racism—that of stereotyping, steering, and segregating students by their “race” and/or skin color into separate courses and classrooms.
If these reports that I have described to you have any ring of truth to them, we urge you to rethink and remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College, forthwith.
The College President, Sylvia Jenkins, immediately recanted, indicating that the "decision has been made to remove all racial restrictions and qualifications for course-taking at Moraine Valley Community College." If winning were only that easy in other instances.
Wednesday, July 20, 2016
New Study Confirms the Role Race Plays in School Choice, But Past Experience and Common Sense Offer a Solution
A recent study of school choice by Steven Glazerman and Dallas Dotter reveals the lingering cold-hard truth that race still matters far too much in parents' decision of where to send their child to school. In their paper, Market Signals: Evidence on the Determinants and Consequences of School Choice from a Citywide Lottery, they find that:
- Parents trade off school demographics and academic performance with distance when choosing schools.
- Parents tend to prefer schools where their children have at least some peers of the same race or ethnicity, but some parents also prefer a diverse school to a homogeneous one.
Preferences vary by race, income, and grade level.
- Simulations suggest that parent preferences, if allowed to dominate school assignment (with no capacity constraints), translate into more racial and economic integration and higher enrollment in high-performing schools.
This last point bears further explanation. The study finds that current school choice is heavily influence by race, but race preferences are not linear. Rather, there are tipping points, at which a school becomes too heavily one racial groups and parents of that group appear to prefer more diversity. The problem in DC is that the system lacks the controls and choices to bring this diversity interest into play. In simulations, however, the study finds that school choice could improve integration. In particular, they assume a world in which the district closed more low performing schools and increased capacity in higher performing schools.
As a side note, this appears to be the exact opposite of what DC has done over the past decade. A lawsuit by special education and minority students in federal district court alleged that DC had closed numerous low performing schools but simply lumped those students into larger low performing schools. Higher performing schools and white families had been almost completely unaffected by school assignment closures and policies in the DC. See more here.
Regardless, this new study, coupled with what half a century of social science has demonstrated about the negative effects of concentrated poverty in schools, confirms why the various choice programs proposed at the federal and state level are such a bad idea. For choice to improve educational opportunity, policy makers have to be far more careful about the context in which they apply it.
The million dollar question is how we might make race matter less in choice program. The answer may be surprising to some: consciously consider race from the outset. Controlled choice plans that account for race and place caps on racial and poverty concentrations have proven extraordinarily effective in creating and maintaining integration. And, as detailed in In Defense of Voluntary Desegregation, once districts achieve some level of demographic balance in the earlier years of a choice program, parents are then forced to begin making school choice based on factors other than race. In other words, race cannot factor in a parent's school choice because demographic are consistent across all the schools they might consider. Within this context, geography, academic programs, and other relevant factors will weigh more heavily. In this way, schools consideration of race is actually the way to make race no longer matter.
Monday, July 18, 2016
elow is the press release on this crucially important bill:
WASHINGTON – U.S. Senator Chris Murphy (D-Conn.), member of the U.S. Senate Health, Education, Labor and Pensions (HELP) Committee, and Congresswoman Marcia L. Fudge (Ohio-11), Ranking Member of the Subcommittee on Early Childhood, Elementary and Secondary Education of the U.S. House Committee on Education and the Workforce, on Tuesday introduced the Stronger Together School Diversity Act of 2016 to promote diversity in schools. The bill builds on President Obama’s FY 2017 Stronger Together budget proposal, and consists of a voluntary program to support the development and expansion of new and existing community-driven strategies to increase diversity in America’s schools. In June, Murphy joined U.S. Education Secretary John B. King Jr. at an event in the U.S. Capitol to discuss the opportunity for increased diversity in schools and communities to drive positive student outcomes in school and in life.
An April 2016 Government Accountability Office report found that the number of socioeconomic and racially segregated schools is increasing, negatively impacting students nationwide. The data shows that poor, segregated schools receive fewer resources, offer students fewer educational opportunities and take more disciplinary actions. Expanding socioeconomic and racial diversity in schools will reverse these troubling trends and help future generations of students receive the education they deserve. In fact, students from low-income households who attend diverse schools are nearly 70 percent more likely to attend college than students from low-income households who attend high-poverty schools. TheStronger Together School Diversity Act of 2016 provides planning and implementation grants to help school districts find voluntary local solutions, implement new strategies, and expand existing diversity initiatives.
“Diverse schools help students. That’s the bottom line,” said Murphy.“We’re introducing this bill because districts need the resources to enact voluntary measures that will make schools more diverse and reduce the economic and racial isolation that sadly exists in places like Hartford and Bridgeport. Looking back, some of the proudest moments in our nation's history have come when the federal government prioritizes racial integration in our schools. That’s why Washington cannot sit on the sidelines as racial and socioeconomic divisions in our schools get worse and our kids’ schools suffer.”
“Brown v. Board ruled more than 60 years ago that ‘separate is not equal,’ yet it is obvious that many schools are suffering from the effects of “de facto” segregation,” said Fudge. “As Ranking Member of the House Subcommittee on Early Childhood, Elementary and Secondary Education, increasing diversity in staff, resources, and student populations in our public schools is a top priority. That’s why I am pleased to be the House sponsor of The Stronger Together School Diversity Act of 2016. This bill will help bring parity of access and resources to schools across the nation, provide a platform to address inequities within our current education system, and help give all of our students a chance to succeed.”
“Today, diversity is not a nicety but a necessity,” Secretary King said.“Diversity is critical, not just for some students, but for all of our students. There are communities and neighborhoods and schools all over this country where educators, parents, and students understand this and are pushing for more diversity in their schools. The legislation introduced by Senator Murphy and Congresswoman Fudge will support and expand these efforts.”
Philip Tegeler of the National Coalition on School Diversity said,“School integration isn’t just important for academic achievement, although the evidence on achievement is very strong. Bringing children of different backgrounds together also helps to reduce racial prejudice and teaches children how to live and work together across racial and class lines. This bill is an important step toward reversing the trend of resegregation of our public schools that was recently documented by the Government Accountability Office, and it will provide funding for cities and towns that have recognized the importance of bringing their communities back together. What is unique about this bill is that it relies on substantial financial incentives to encourage progress on school integration.”
The Stronger Together Diversity Act has been endorsed by the National Education Association, American Federation of Teachers, the National Urban League, National Women’s Law Center, National Coalition on School Diversity, Association of University Centers on Disabilities, Magnet Schools of America, Lawyers’ Committee for Civil Rights Under Law, Poverty & Race Research Action Council, Civil Rights Project - UCLA, National Council of Jewish Women, and Girls Inc..
The Stronger Together School Diversity Act:
- Authorizes $120 million to provide planning and implementation grants to support voluntary local efforts to increase socioeconomic and racial diversity in schools.
- Supports school districts, independently or in collaboration with neighboring districts, as well as regional educational authorities and educational service agencies.
- Grants could fund a range of proposals, including (but not limited to):
- Studying segregation, evaluating current policies, and developing evidence-based plans to address socioeconomic and racial isolation;
- Establishing public school choice zones, revising school boundaries, or expanding bussing service;
- Creating or expanding innovative school programs that can attract students from outside the local area;
- Recruiting, hiring, and training new teachers to support specialized schools.
Friday, June 24, 2016
Harpalani On Fisher II: The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani (Savannah) shared his take on Fisher II below, which he writes "was the clearest victory for affirmative action" since Grutter and now gives universities clearer guidance on how race may be evaluated in admissions policies.
The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani, J.D., Ph.D., Associate Professor of Law, Savannah Law School
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.
In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.
Thursday, June 23, 2016
This morning, the Supreme Court in Fisher v. Texas upheld the long contested admissions program at the University of Texas. In an opinion by Justice Kennedy, the Court reasoned that the consideration of race was narrowly tailored, meaning that it was necessary, that without it a critical mass would not be achieved, and that the University had considered race neutral alternatives. One of the most telling lines to me, however, was "[t]hat race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality." As I have long emphasized, the very limited role that race plays in Texas admissions was the point that was getting lost. In the overall scope of things, race plays a role across a very small number of applications and, within those applications where it does play it role, it is considered alongside several other factors. In other words, it is a factor within a factor within a factor.
Only by ignoring the larger scope and narrowing one's view down to the precise instance in which race plays a role can one offer a reasonable argument that Texas's use of race is inconsistent with what the Court previously sanctioned in Grutter v. Bollinger. I argue here that race plays a smaller role in admission decisions at Texas than it did at Michigan in Grutter. Thus, what Fisher was really about was an attempt to reverse Grutter itself. But that could be achieved only by elevated form over function (i.e. making the question of whether race was considered more important than the question of how it was considered). Unfortunately, form has consistently triumphed over function in most recent race cases, which is why many have been so concerned about the final outcome in Fisher over the past few years. That form did not triumph in Fisher today is victory not just for Texas or diversity, but for the more realistic assessment of race cases before the Supreme Court in the future.
The case may also signal a shift for Justice Kennedy. In the past, Justice Kennedy has held out the theoretical notion that he approved of race conscious action, but he had never upheld an actual plan. This led many commentators and scholars to muse that he was toying with litigants, presenting himself as progressive in theory by staunchly conservative in practice. Today, Justice Kennedy proved them wrong. Then again, maybe this decision is just the productive of a perfect storm in which only 7 justices decided the case, Justice Scalia is no longer on the Court, and Justice Kennedy's role as the swing vote may be nearing its end.
Get the full opinion here. See the pertinent parts of the Court's syllabus below:
Wednesday, May 18, 2016
New Federal Study Finds Increase in School Segregation and Recommends More Aggressively Federal Action
Yesterday, on the 62nd anniversary of Brown v. Board of Education, the U.S. Government Accountability Office released a report on school segregation titled Better Use of Information Could Help Agencies Identify Disparities and Address Racial Discrimination. The study found that
The percentage of K-12 public schools in the United States with students who are poor and are mostly Black or Hispanic is growing and these schools share a number of challenging characteristics. From school years 2000-01 to 2013-14 (the most recent data available), the percentage of all K-12 public schools that had high percentages of poor and Black or Hispanic students grew from 9 to 16 percent, according to GAO's analysis of data from the Department of Education (Education). These schools were the most racially and economically concentrated: 75 to 100 percent of the students were Black or Hispanic and eligible for free or reduced-price lunch—a commonly used indicator of poverty. GAO's analysis of Education data also found that compared with other schools, these schools offered disproportionately fewer math, science, and college preparatory courses and had disproportionately higher rates of students who were held back in 9th grade, suspended, or expelled.
While detailing and commending the various efforts the Departments of Education and Justice have taken "to identify and address racial discrimination against students," the GAO recommends that the Department of Education "more routinely analyze its civil rights data to identify disparities among types and groups of schools and that Justice systematically track key information on open federal school desegregation cases to which it is a party to better inform its monitoring. In response, both agencies are considering actions in line with GAO's recommendations."
I might, however, note a more important recommendation that is beyond the purview of the GAO report: the Elementary and Secondary Education Act should require districts to track their own demographic data and report any year-to-year increases in racial isolation and hold them accountable for any increases that were the result of state or district policies. This would eliminate the question of de jure versus de facto resegregation and instead make the question one of whether the district caused the resegregation. Resegregation caused by the state or district should come with consequences. Moreover, given the ESEA's original intent to give the federal government leverage to force desegregation and to address the needs of students in concentrated poverty, this change to the ESEA is common sense, not radical. For a full explanation of this proposal, see here.