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 firstname.lastname@example.org 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.
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.