Wednesday, April 23, 2014
Yesterday, the Court held in Schuette v. Coalition to Defend Affirmative Action that the Michigan referendum, which amended the state constitution to prohibit the consideration of race in admissions following Grutter v. Bollinger, was constitutional. The plaintiffs had alleged that the Michigan amendment violated equal protection under the Court's political process theory, most recently articulated in Washington v. Seattle Schools, 458 U.S. 457 (1982). In Washington, the state had banned integrative busing (except that required by court order), which invalidated the Seattle School District's voluntary desegregation plan.
The plaintiffs in Schuette argued that the Michigan amendment put minorities and minority interests at a distinct disadvantage in securing favorable laws, just as the state had in Washington. An alum of the University of Michigan could, for instance, petition for favorable admissions policies and considerations for children of alums without needing to resort to a consitutional amendment, but after Michigan's referendum, those advocating for racial diversity considerations would be precluded from securing favorable legislation or policies without first passing a constitutional amendment. This, they say, violates equal protection in the political process.
The Court rejected their claim by a vote of 6-2 (Kagan recused herself), but there was no majority opinion agreeing on the rationale. Three justices (led by Kennedy) distinguished the Washington line of cases as being about states changing the political process in such a way that made it more difficult to remedy discrimination and/disadvantage. In other words, those three justices read the political process theory to preclude states from locking in a political process that made it more difficult to remedy discrimination. They reasoned that Shuette did not involve limits on remedying discrimination, but limits on using racial preferences. The latter is distinct and, thus, the political process theory does not apply to Michigan's actions here.
In a separate opinion, Justice Scalia, joined by Thomas, reasoned that the political process theory would apply here and that the facts of Schuette are not distinct. He, however, argued that the political process theory was itself a flawed doctrine and should be overturned. The proper standard would be the intentional discrimination standard, which the plaintiffs could not meet here.
Justice Breyer, writing alone, reasoned that this case did not involve a change in the political process, but simply a constitutional amendment, which was permissible. The U.S. Constitution permits race conscious admissions, but does not require them. Thus, voters are free to reject them.
Justice Ginsberg and Sotomayor argued that the Washington line of cases applied and this amendment violates that precedent, per the plaintiffs' rationale discussed above.
In most respects, the case does not change much (at least not yet). It did not change the holding in Grutter. The issue of whether diversity is a compelling interest was simply not before it, which the Court emphasized. The only issue before it was that of altering the political process by which a state or locality makes decisions about race. In other words, at what level of government should issues of integration, diversity, busing, and discrimination be made and when can those decision-making rules be changed so as to make certain racially progressive policies more difficult. Cases premised on this precise contextual question have only come before the Court a few times in the past and do not involve a rich doctrinal development. So while the Court did appear to limit that doctrine, it was never a widely used doctrine.
The case does sanction anti-affirmative action legislation, but the fervor for that legislation was greatest following Grutter, not now. There is nothing in Schuette to incite or upset anti-affirmative action advocates. With that said, I will leave further discussion to others who have spent more time thinking seriously about this case. A few have already contacted me and I hope to have their thoughts soon.
Tuesday, April 22, 2014
As many of you know, the 60th Anniversary of the Supreme Court's decision in Brown v. Board of Education is just a couple weeks away. In advance of the anniversary, numerous organizations, media outlets, and individuals have been reflecting on and updating our history of school desegregation and resegregation. ProPublica, in particular, has released an extensive report, Segregation Now, which chronicles the story of desegregation in Tuscaloosa, Alabama, and tells the story of students attending schools today that strongly resemble those of the pre-Brown era. Below is a sampling of other articles and commentary.
From Jose Vilson, Racism without Racists: The School Resegregation Edition.
From the Star-Leger, Six Decades after Brown v. Board of Education, NJ's Schools Are Still Segregated.
From my perspective, the conversation this time around--as opposed to the 50th Anniversary--is less alarmist in tone. The story last time was more shocking and came at a time when the possibility of stemming the tide of resegregation seemed more important (to more more people) and potentially within reach. This time, unfortunately, some commentaries seem to lament the loss of integration but accept it. After all, the national conversation regarding education policy and improvement now tends only to turn to segregation on anniversaries. In fact, I posit that it still remains to be seen whether it will be part of the national conversation this time around. We have three weeks to see.
Wednesday, April 2, 2014
On Friday, May 2nd, Teachers College, Columbia University will host a one-day event for policy makers, educators, and activists to celebrate victories and identify major setbacks on the road to the suburban promise of Brown. The title of the event is The Suburban Promise of Brown: Addressing Challenges to Sustaining Racially Diverse Schools and Communities. The flyer summarizes the conference as follows:
Once seen as havens for middle-class whites fleeing the cities, the American suburbs have become far more diverse, putting them at the epicenter of the struggle for integration and equal opportunity. Much progress is being made around these issues, especially in the area of fair housing, but the crisis of separate and unequal schools is as salient in the suburbs as anywhere.
Registration and the full schedule are here.
Friday, March 28, 2014
A new report by the Civil Rights Project finds that New York “has the most segregated schools in the country.” Weighing the state down is New York City, “home to the largest and one of the most segregated public school systems in the nation.” This was not always the case, says the report. “Forty years ago, school desegregation was a serious component of the state’s education policy, as a result of community pressure and legal cases.” But “[a]round the time of Reagan’s administration, the state moved away from desegregation efforts and instead focused on other practices and policies like accountability systems, school choice, and charter schools.” Today, those policies, particularly school choice, “are exacerbating racial isolation as demographics continue to change.”
The report takes an interesting new tactic on the question of high performing minority schools, the idea of which drives the charter school movement. The Civil Rights Project writes: “Can separate be equal, yes. If measured by test scores, a few resegregated schools show high performance." This point is one that often breaks down discussions about integration, even within the minority community, because some believe that integration policy is a statement that minority schools cannot be successful. Thus, the Civil Rights Project allows that they can (even if inconsistently) and moves on to more important points. It writes, "even if equality can be reached between racially isolated schools, students may never achieve the skills and abilities required to navigate an increasingly diverse nation.” Moreover, 60 years of research demonstrates that integrated schools produce greater academic achievement, higher future earnings, better health outcomes for minority students, reduced racial prejudice, and greater interracial communication skills.
The report argues that school segregation is not inevitable in New York. In fact, the conditions are ripe for integration. There is “a growing diversity of student enrollment in schools and school districts across the state and main metropolitan areas, particularly in urban schools.” Education policy has simply failed to tap into it, instead allowing segregation to persist, if not increase.
Thursday, March 20, 2014
One Nation Indivisible has released its newest story, Utah's Bilingual Boon, which profiles Spanish two-way bilingual programs in which native English speaking and native Spanish speaking students share classrooms and learn together in both languages. These two way programs are part of a larger, state-supported language immersion effort. This story took One Nation Indivisible to rural, urban and suburban schools in Heber City, Park City and Kamas. See the full story here.
Tuesday, March 18, 2014
Sean Reardon and Ann Owens have released 60 Years After Brown: Trends and Consequences of School Segregation, which is forthcoming in the Annual Review of Sociology. The primary focus of the paper is whether segregation has increased since 1990. Civil Rights Project reports and others have, of course, popularized the "resegregation" of public schools, finding a sharp upward trend over the last two decades. Another smaller group of scholars (Vigdor and Glaeser) have claimed the opposite: that segregation is coming to an end. Reardon and Owens attempt to mediate this disagreement, which they claim stems from different methodology between the two camps. Reardon and Owens agree that minorities attend school with fewer whites today than they did 20 years ago. In this respect, one could argue they are more segregated. But Reardon and Owens stress that more minorities attend public school today than 20 years. Thus, by necessity, they attend schools that are more populated by minorities than whites. This change is not the equivalent of "resegregation." To analyze resegregation, they say, one must factor in this growth in the percentage of minorities attending public schools. Accounting for this growth, they find that segregation levels have remained relatively stable since the 1990s. They point out, however, that this does not mean that schools are free of troubling trends. For instance, there are still issues of socio-economic segregation and classroom segregation that have not been fully explored.
I would also emphasize a more important takeaway. Our schools were never "integrated." In the South, for instance, 4o percent of African Americans in the South attended integregated schools by the end of the 1980s, which was signficant progress, but far from full integration. In the North, nowhere near as much progress was made. Thus, to say they have not resegregated is not to say everything is fine or we can breath a sigh of relief. Rather, it is to say that the work in progress from the 1980s remains unfinished. Our only victory, if you want to call it that, is that we have not gone backward as far as we might have thought.
Reardon and Owens' abstract is as follows:
Since the Supreme Court’s 1954 Brown v. Board of Education decision, researchers and policymakers have paid close attention to trends in school segregation. While Brown focused on black-white segregation, here we review the evidence regarding trends and consequences of both racial and economic school segregation. In general, the evidence regarding trends in racial segregation suggests that the most significant declines in black-white school segregation occurred at the end of the 1960s and the start of the 1970s. Although there is disagreement about the direction of more recent trends in racial segregation, this disagreement is largely driven by different definitions of segregation and different ways of measuring it. We conclude that the changes in segregation in the last few decades are not large, regardless of what measure is used, though there are important differences in the trends across regions, racial groups, and institutional levels. Limited evidence on school economic segregation makes documenting trends difficult, but in general, students are more segregated by income across schools and districts today than in 1990. We also discuss the role of desegregation litigation, demographic changes, and residential segregation in shaping trends in both racial and economic segregation.
One of the reasons that scholars, policymakers, and citizens are concerned with school segregation is that segregation is hypothesized to exacerbate racial or socioeconomic disparities in educational success. The mechanisms that would link segregation to disparate outcomes have not often been spelled out clearly or tested explicitly. We develop a general conceptual model of how and why school segregation might affect students and review the relatively thin body of empirical evidence that explicitly assesses the consequences of school segregation. This literature suggests that racial desegregation in the 1960s and 1970s was beneficial to blacks; evidence of the effects of segregation in more recent decades, however, is mixed or inconclusive. We conclude with discussion of aspects of school segregation on which further research is needed.
Monday, March 17, 2014
Osamudia R. James' new article, Opt-Out Education: School Choice as Racial Subordination, is now available on westlaw at 99 Iowa L. Rev. 1083 (2014). Her abstract summarizes the article as follows:
Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and the ways in which choice merely masks racial subordination and the abdication of democratic values in the school system. Students of color and their families may be opting out, but their decisions to do so neither improve public education nor reflect genuine choice. This Article ultimately argues that the values underlining school choice and choice rhetoric?like privacy, competition, independence, and liberty?are inherently incompatible with the public school system. The Article concludes by suggesting an alternate legal and rhetorical framework acknowledging the vulnerability of minority students, as well as the interdependence between white students and non-white students in the system, and it advances strict limitations on school choice, even, if necessary, in the form of compulsory universal public school education.
Wednesday, March 5, 2014
Obama's 2015 Equity Initiative: Quality Teachers, Funding Fairness, School Climate, and Concentrated Poverty
Notwithstanding all the claims that the President's budget is dead on arrival, his new budget is important in the policies and values it is putting forward, particularly since this President has shown his ability to push his policies administratively, even when Congress does not act. The 2015 budget includes "a new initiative called Race to the Top-Equity and Opportunity (RTT-Opportunity), which would create incentives for states and school districts to drive comprehensive change in how states and districts identify and close opportunity and achievement gaps." The initiative focuses on the equitable distribution of school funding, hiring quality teachers, and improving school climate. Tagged on at the end is a new message from the President: "identify and carry out strategies that help break up and mitigate the effects of concentrated poverty." It is unclear whether the President intends to promote integration strategies, try to make separate equal, or both. The President's own description of his plan states:
Grantees would enhance their data systems to place a sharp focus on the districts, schools, and student groups with the greatest disparities in opportunity and performance, while also being able to identify the most effective interventions. They would develop thoughtful, comprehensive strategies for addressing these gaps, and use the data to continuously evaluate progress. Grantees would invest in strong teaching and school leadership, using funds to develop, attract, and retain more effective teachers and leaders in high-need schools, through strategies such as individualized professional learning and career ladder opportunities.
States would collect data on school-level expenditures, make that data transparent and easily accessible, and use it to improve the effectiveness of resources and support continuous program improvement. Participating districts would be required to ensure that their state and local funds are distributed fairly by implementing a more meaningful comparability standard based on this school-level expenditure data.
RTT-Opportunity funds also would be used, for example, to provide rigorous coursework; improve school climate and safety; strengthen students’ non-cognitive skills; develop and implement fair and appropriate school discipline policies; expand learning time, provide mental, physical, and social emotional supports; expand college and career counseling; and identify and carry out strategies that help break up and mitigate the effects of concentrated poverty.
The resegregation of public schools over the past two and a half decades is not news to most of the readers of this blog. Numerous reports demonstrate that our public schools are now as racially and socioeconomically segregated as they were when mandatory desegregation began in earnest in the early 1970s. What may be news is the new trend of "school district secession." Historically, many of the most effective school desegregation plans covered large school districts in metropolitan areas. Now that those districts have been released from court ordered desegregation, smaller wealthier neighborhoods are attempting to secede from their districts to form their own independent and isolated schools. Businesweek reports:
In Alabama, which makes it relatively easy to create districts, two Birmingham suburbs have left the countywide system in the past two years. After the majority-black Memphis schools merged last year with the majority-white county district, Tennessee's Republican-dominated legislature lifted a decades-old ban on creating new systems, and six suburbs seceded, approving sales tax increases to pay for their schools. Parent groups in Atlanta and Dallas are considering similar proposals.
A similar move is being pushed in Baton Rouge, Louisiana, where a parent leader of secession comments that "We are tired of basically being a cash cow for the rest of the parish." If secession occurs, per pupil spending in the Baton Rouge district would drop from $9,635 to $8,870. The new affluent district would have per pupil expenditures of $11,686. In other words, secession would create a $2,000 per pupil gap overnight. In an average elementary school, this would be the difference of nearly a $1,000,000 a year.
This trend raises important causal questions. Are these secession movements the lingering effects of school systems that never became substantively unitary? Are they the result of the "invidious value" that Kevin Brown argues segregation fostered and integration never cured? (See Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1 (1992)). Or are they the result of bringing market ideas to public schools and fomenting the idea that education, rather than a public good, is consumer resource? I would suspect the trend stems from all three. In so far as it is connected to the third, it also demonstrates my point in Charters Schools, Voucher, and the Public Good, where I argue that charters and vouchers are not inherently good or bad. Rather, they are the policies through which good or bad values can flow (most often bad at the moment). But laws permitting school district secession allow these same bad values to flow through traditional public schools.
For Jan Resseger's analysis of the trend, see here.
Wednesday, February 26, 2014
The district court has issued a new opinion in Lewis v. Ascension Parish Sch. Bd., 2014 WL 556677 (M.D. La. 2014), a case involving allegations that the district discriminated in the rezoning of its schools. Like Spurlock v. Fox, 716 F.3d 383 (6th Cir.2013) and Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir.2011), the court in Lewis had to navigate the complex post-Parents Involved in Community Schools v. Seattle world, in which racial intent, racial classifications, and racial considerations all of different doctrinal relevance and potentially conflicted precedents.
The district court in Lewis had previously issued a summary decision granting the school district's motion for summary judgement, which was summarily overturned by the Fifth Circuit and remanded. The Fifth Circuit had intimated that the Third Circuit's holding in Lower Merion--that Justice Kennedy's opinion in Parents Involved was controlling and that assignment plans are subject to rational basis so long as they do not rely on individual racial classifications--was incorrect. The Fifth Circuit, however, indicated it need not reach those doctrinal question because certain factual issues needed to be addressed first.
In its new decision on remand, the district court offers what may be the most cogent post-Parents Involved analysis to date. Plaintiff's basic claim is that the district's new assignment plan segregates African Americans and provides them with unequal educational opportunities. The district court analyzes his claim based on three distinct doctrines. First, it asks whether a racial classification was employed in the assignment plan. If so, Parents Involved's strict scrutiny applies. Here, the court indicates there is no evidence of a racial classification. Awareness or consideration of race, alone, are insufficient to trigger strict scrutiny. Thus, the rational basis approach of Lower Merion would apply. On the one hand, this holding is another validation of districts' ability to voluntarily desegregate. On the other hand, the plaintiffs in Lewis were alleging segregation and, thus, this court makes clear that those claims still must meet the higher burden of Village of Arlington Heights v. Metro.
Second, the court analyzes the disparate impact of the plan and the extent to which it potentially gives rise to a claim of intentional discrimination per Arlington Heights. It finds that the assignment plan does.
Third, the court analyzes the school district's consideration of racial demographics, etc., in drawing the assignment zones. The court finds that these considerations, along with the impacts, create a triable issue of fact as to whether intent existed. The Court elaborated:
Here, the School Board also does not contest that the majority of the non-white students in the District are in the East Ascension High School feeder zone and that the majority of the white students in the District are in the Dutchtown High School and St. Amant High School feeder zones. With regard to the factors considered by the School Board when it adopted Option 2f, the School Board does not contest that its members considered race and socioeconomic status when they developed, evaluated, and adopted Option 2f. Unlike the students in Lower Merion, non-white and white students in the District have each been affected by Option 2f (i.e. assigned to different schools). Indeed, the School Board does not contest this fact. Further, the School Board does not contest that Option 2f assigns all students to schools based on their geographic location.
Unlike the court in Lower Merion, this Court is unable to consider all of the evidence presented until after a full trial on the merits. See Lower Merion, 665 F.3d at 542. However, given the evidence presented here, context of this matter, and factors considered by the School Board when it adopted Option 2f, the Court concludes that Varando and Child B are, in fact, similarly situated to white students in the Dutchtown High School and St. Amant High School feeder zones. Accordingly, the School Board's request that the Court dismiss Lewis' remaining Equal Protection claim on this basis is DENIED.
In short, the district court agreed with Lower Merion (and rejected plaintiffs argument for applying strict scrutiny), but found there are sufficient facts on which discriminatory purpose could be inferred (which would trigger strict scrutiny) and set the case for trial.
Friday, February 21, 2014
Magnet schools have been stagnate for some time. For instance, as Erica Frankenberg and Genevieve Siegel-Hawley detail in Choosing Diversity: School Choice and Racial Integration in the Age of Obama, 6 Stan. J. C.R. & C.L. 219, 244 (2010), federal funding for magnet schools has been flat since the late 1980s. At the same time, charter school funding has been exponentially increasing.
Many districts perceive charters as non-public schools or anti-public schools. Motoko Rich's story in the New York Times indicates that some school districts are now re-embracing magnet schools as a way to fight back or push back against the pressures of charter schools. She points to Chicago, Dallas, Denver, Los Angeles, Newark and Washington as examples, but focuses on Miami, where the number of students attending magnet schools has increased 35 percent in the last four years.
For those who follow the segregation debate, this pushback is more important than just charters versus magnets or public schools. Various reports charge charter school with exacerbating school segregation (although I have argued their point may be exagerated). In the past, the primary purpose of magnet schools, however, has been to increase integration. In fact, federal funding for magnet schools has been explicitly conditioned on their ability to help districts meet mandatory desegregation obligations or voluntarily desegregate.
Beyond the differing roles that they play in segregation and their differing public school status (perceived or real), magnets and charters share a tremendous amount in common. This commonality, however, begs the question of why the federal government and reformers have placed so much support behind charters and so little behind magnets in recent years. Is it that they object to integrated or public schools? My article Charter Schools, Vouchers, and the Public Good, 48 Wake Forest L. Rev. 445 (2013), explores theses issues further. It refrains from labeling charters, magnets, and vouchers as inherently "good" or "bad" schools and instead asks whether they have been implemented in ways that can promote or have promoted the overall public good, which I posit is the primary question of public education.
For the New York Times story on magnets, see here.
Tuesday, February 18, 2014
Erika Wilson's new article, Towards a Theory of Equitable Federated Regionalism in Public Education, is forthcoming in the UCLA Law Review. The article is aimed at addressing the longstanding problem of inequity and segregation across school district lines, which were sanctioned by the Supreme Court in Milliken v. Bradley and San Antonio v. Rodriguez. Wilson says the problems are further exacerbated by the "a strong ideological preference for localism" in state education laws that "do not require or even encourage collaboration between school districts in order to address disparities between neighboring school districts." Thus, she calls for a reconsideration of "the wholesale commitment to localism in public education" and argues that, "in some instances, the dissemination of public education should be made on a regional basis rather than a local basis. [Her article] examines how enacting regionalism — a theoretical framework, which advocates for the installment of regional governance structures — might occur in public education. Borrowing from two specific theories of regionalism, equitable regionalism and federated regionalism, [her article] proposes a framework entitled 'Equitable Federated Regionalism' for disseminating public education on a regional basis."
This new article builds on her prior work, Leveling Localism and Racial Inequality in Education Through the No Child Left Behind Act Public Choice Provision, 44 U. Mich. J. L. Reform 625 (2011). Both works are insightful attempts to push us beyond old ways of thinking. They are fit nicely with both positive and negative developments in a few localities. Consider Omaha, Nebraska's cooperative school district zones, which suggests Wilson's proposals are more than feasible. Or consider the current school transfer provision in Missouri that is wreaking havoc on both accredited and unaccredited school districts. Wilson's proposals might offer a far more orderly means of dealing with the problems there. The same is true of the problems that will follow the rise of parent triggers, school closures, and the like in other localities.
Monday, February 17, 2014
The Missouri statute allowing students to transfer out of unaccredited school districts is continuing to place huge pressures on the districts and the state. (For more background on the statute, see my earlier posts here and here). The Normandy School District has now suffered enough losses that it is facing "financial collapse." If it does, the state will have to reassign the 3,000 students currently enrolled in the district. There are another 62,000 students in the state attending other unaccredited school districts. Normandy could be just the first of many crises the state and surrounding districts will have to manage.
Recognizing this, the state board of education is debating its options. One proposed option, suggested by a consultant, is to hand control of these unaccredited to districts to nonprofit entities, which would presumably be something akin to a charter school operator. Other options include creating a state-run school district comprised of the "failing districts," allowing the local school boards to continue operating their "failing districts," or pushing the state to amend the transfer statute. The nonprofit and state-run options have already drawn strong objections from some board members. I would suspect that the privitization lobby, however, will soon enough pressure lawmakers in the opposite direction. What makes Missouri's situation so interesting and important is that the concept of this transfer provision across district lines offers some good possibilities, most importantly integration and poverty deconcentration. But when the law operates too harshly, its primary effect is to destabilize the entire education system of the state, which is not good for anyone. That seems to be the case now. Hopefully, the legislature or board can come up with a reasonable response to these self-inflicted wound.
For more local reporting on the story, see here.
Tuesday, February 11, 2014
The Education Law Association is hosting its annual conference on November 11-15, 2014, in San Diego California. The topic of the conference is "The Resegregation of Education in America," in celebration of the 60th anniversary of Brown v. Board of Education. I know the Association is interested in more participation from law faculty and encourages them to submit panel proposals. The call for panel proposals will remain open until March 1, 2014. The proposal process is straightforward: a short biographical sketch for each presenter, a title and brief summary of the presentation (not to exceed 25 words), and a 500-750 word description of the proposed session.
More details on the conference and proposals are available here.
Wednesday, February 5, 2014
Wendy Parker’s new article, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Fla. L. Rev. 1871 (December 2013), offers a unique perspective on the Court's holding in Parents Involved and other recent race cases. In particular, she frames the cases in such a way that they could be of benefit to civil rights advocates rather than just hindrances. Parker argues that the majority in Parents Involved changed the meaning of discrimination from substantive discrimination, which originated with the Warren Court, to process discrimination. Process discrimination occurs “from the process of different treatment, without proof of any attending substantive harm.” She also emphasizes that Fisher v. Texas was premised on process rather than substantive discrimination.
She theorizes that process discrimination, as an aggressive colorblind principle, can ultimately help plaintiffs of all races in discrimination suits because it allows plaintiffs to more easily show that their race was part of the decision that caused them harm. Prof. Parker illustrates this with a hypothetical:
Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing. Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.
My forthcoming article in a Fisher symposium frames Parents Involved and Fisher as a triumph of form over function, and bears a lot of similarity to Parker's. What she calls "process" I call "form," and what she call "substance" I call "function." In other words, we read the cases the same, but put different labels on them. The current conclusion of my paper, however, takes a different route than Parker. I conclude that the focus on form benefits whites and disadvantages minorities, primarily because the harm that typically falls on minorities is not explicit. Instead, the harms minorities suffer are often the result of the way the system functions. This type of harm escape judicial scrutiny under an analysis heavily weighted toward form.
Parker's article, however, would indicate that form over function is not all bad. Minorities just have to embrace the new paradigm and marshall it to their benefit in the same way opponents of affirmative action have--an extremely important and insightful point that I overlooked in my pessimistic analysis of the cases.
An earlier version of the paper is available here on ssrn.
Tuesday, January 28, 2014
Investing in Integration: What a Second Year Law Student Knows and the Department of Education Cannot Figure Out
Jennifer Rust, a law student at Loyola University, just published Investing in Integration: A Case for "Promoting Diversity" in Federal Education Funding Priorities, 59 Loy. L. Rev. 623 (2013). She points out that the Department of Education "first identified school diversity as a priority in granting discretionary federal funding to schools in 2011," but this step "came nearly four years after a majority of the United States Supreme Court declared school integration a 'compelling government interest.'" and only after staunch criticism from civil rights advocates. Moreover, it is just one of sixteen priorities and not present in all programs. She then goes on to discuss the Department and "President Obama's rigorous support and funding for charter schools[, which has] catapulted the movement to the forefront of education reform."
The Department's Race to the Top Fund:
provides over $4.35 billion to eligible schools and awards federal funding to states that lift the cap on the number of charters they allow to operate. However, RTF provides virtually no incentive for charters to promote diversity. Under the current plan, states can win RTF funding without any effort to reduce concentrations of poverty and racial isolation within their schools. RTF is indicative of the failure by the federal government to adequately emphasize the importance of voluntary integration in its programs.
. . .[C]harter schools are uniquely positioned to promote diversity in education, but have fixated on a flawed agenda. By prioritizing high poverty schools over all others, charters have made a failed attempt to overcome the weight of history suggesting that separate schools are not better for anyone.
I was so struck by this law student's ability to capture the Department's error by omission--something not easy to spot--that I asked the usual suspects whether they had played in any role in her work. Thus far, the answer is no. Ms. Rust's footnotes indicate she has read several published papers by diversity coalitions and organizations, but came to her idea and conclusion on her own. If only the Department was as observant and considerate.
Friday, January 17, 2014
The Obama Administration's Misunderstanding About the Connection Between Higher Education and K-12 Diversity
Civil Rights advocates have been less than enamoured with the Obama administration's approach to diversity in K-12 education, but credit goes to the administration on higher education. DOJ's briefs in Fisher v. Texas--before the Supreme Court and on remand--have been forceful and creative in their defense of affirmative action. Yesterday, the administration continued to emphasize access to higher education as one of its top priorities. The Los Angeles Times billed yesterday's forum as an effort to "encourage economic diversity in higher education."
The administrations efforts are worthy of applause for their symbolism, but they overlook the crucial practical link between integration in K-12 and higher education access. One of the most significant factors in higher education attainment is not higher education policy, but the high school a student went to and the peer influences experienced there. Middle class schools have a culture and expectation of higher education attainment that does not require significant prodding from the outside. Minority students are disproportionately excluded from those schools and, instead, attend schools where graduating from high school is not even necessarily the dominant expectation. In these schools, selling students on college and making it a realistic goal is more of an uphill battle and requires outside influences, which are not nearly as effective (although surely worth the effort). In short, if the administration were serious about higher education access, it would think more seriously about its K-12 integration policy.
Monday, January 13, 2014
Friday, the Eleventh Circuit affirmed the district court's holding in I.L. v. Alabama that the state's school funding was not discriminatory. The Eleventh Circuit's opinion primarily focuses on issues of jurisdiction and redressibility. In the final pages of the opinion, the court reaches plaintiffs' central claim: that several provisions of and two amendments to the Alabama Constitution were motivated by discrimination. In particular, plaintiffs claimed that the caps on education spending and otherwise generally low commitment to education trace back to Alabama's desire to disinvest in education once it realized it would have no choice but to desegregate its schools and their finances. (Similar claims were also made in a challenge to higher education funding in Knight v. Alabama, 476 F.3d 1219 (11th Cir. 2007)). The court acknowledged Alabama's sordid history, but indicated it could find no clear error in the the trial court's conclusion that these limitations on education "were a reaction to the increases in property appraisals and assessments mandated by [an earlier case], and the accompanying threat of a tremendous increase in the property taxes paid by land owners."
This case is unique in its attempt to explicitly link intentional discrimination with dismal school funding. As of yet, however, no modern plaintiffs have been able to sustain such a claim on a statewide level. The further in time they are removed from the original "deed" the more skeptical courts tend to become of the claim.
The full opinion is available here. Thanks to Scott Bauries for alerting me to the opinion.
Thursday, January 9, 2014
The last time we saw activity in the Louisiana voucher case things were deescalating. My reading of Jindal's comments then was that he was disappointed. This was a fight with DOJ that he was itching to drag out. Playing the victim served any number of local and national political ends. It took him six weeks, but Jindal figured out a way to revive the fight. Since there was not much more to say about vouchers (because DOJ is only asking for reporting data), Jindal has now moved to terminate the underlying desegregation order altogether.
The underlying order arose out of a 1976 case, Brumfield v. Dodd decision, in which Louisiana had facilitated white flight out of integrating public schools into segregated private schools--the same concern DOJ has with the current voucher program. The burden for terminating desegregation orders generally rests with the state, but in an interesting turn, Jindal's argument attempts to flip the burden. By his reasoning, unless DOJ can show the current program is violation, the state is entitled to terminate the standing order. As noted in earlier posts, the reason why DOJ has always, at least procedurally, been on the right side of this case is that, once a violation was found (in Brumfield), it is the state that must show its policies do not perpetuate segregation, not the plaintiff who must show that they do.
Given recent history, I am sure there will be something new to report soon.
Monday, December 30, 2013
Just last month, the Fifth Circuit Court of Appeals held a new round of oral arguments regarding Abigail Fisher’s ongoing claim that the University of Texas at Austin (“UT”) rejected her because she is white. Fisher first sued UT some five years ago after failing to gain admission through either the State of Texas’s Top Ten Percent plan – which automatically admits any high school student who graduates in the top ten percent of his or her class – or through UT’s regular, race-conscious admissions scheme, a “check the box” admissions scheme that, in both theory and practice, is comparable to hundreds of other admissions plans across the country.
This round of oral arguments came on the heels of the U.S. Supreme Court’s borderline unpredictable ruling this past June in Fisher. In a decision that saved diversity advocates from chewing their fingernails to the bone, the Court held that educational diversity remained a worthwhile, compelling state interest. However,the Court also held that the Fifth Circuit had misapplied the particular rule used by the Court to evaluate race-conscious admissions plans – “strict scrutiny” – as introduced by the Court some ten years ago in the case Grutter v. Bollinger.
As a result, the Court threw out the Fifth Circuit’s original decision, and shipped the Fisher case back to Austin, Texas, asking the Fifth Circuit to determine – and they really mean it this time – whether UT’s race-conscious policies are “narrowly tailored” (and necessary) to produce a “critical mass” of minority students. Lastly, and most headline-worthy, the Court’s opinion in Fisher stated that strict scrutiny requires universities to “demonstrate, before turning toracial classifications, that available, workable race-neutral alternatives” – alternatives like the Top Ten Percent plan in Texas – “do not suffice.”
Most commentators and experts examining Fisher have focused mostly on the first part of this decision, the part that unquestionably preserves the legality of race-conscious plans in college admissions. Yet far greater uncertainty has clouded whether – or rather, to what extent – the Court’s fixation on the latter, “narrowly tailored” part of the equation has in fact created completely new rules for affirmative action in higher education.
Those of us most concerned with this possibility have so far confined our suspicions to private phone conversations, tersely supportive emails, and off-the-political-radar panels and events on affirmative action. We carved out space in trade journals, salivated over the possibility of being validated by influential organizations, and came to exhibit uncharacteristically conspiratorial behavior. Terms like “institutional bias” and “government credibility” crept into our lexicon.
But when the Fifth Circuit reheard Fisher on November 13th, our concerns finally went mainstream. Arcade Fire had “The Suburbs.” We had Patrick Higginbotham.
Late in the hearing, amidst a blizzard of criticism from Bert Rein – the attorney for Ms. Fisher – Judge Higginbotham slowed the exchange, and wondered aloud
What is the unfairness of letting [UT] go forward under the [Fisher] standard? We obviously – the district court and this court – were seriously mistaken in not following the dissent in Grutter, by not having anticipated that it would become [the rule]. Going forward, in fairness perhaps, [UT] ought to be allowed to meet the standard [in Fisher]. One can say, ‘Well that’s always the standard.’ Well, of course strict scrutiny was always the standard, but it was strict scrutiny as stated by Justice O’Connor [and] to which Justice Kennedy dissented [in Grutter.]
Now while legal experts know better than to hitch their predictive wagons to the jurisprudential Frankensteins that happen to catch an occasional lightning bolt at oral arguments, Judge Higginbotham’s recap of Fisher is exceptionally telling, if not foreboding. After all, Higginbotham is talking about fairness: the majority opinion in Grutter, written by Justice Sandra Day O’Connor, had provided lower courts with the exclusive blueprint for evaluating affirmative action cases for the last ten years, to such an extent that when Ms. Fisher first sued UT, Grutter wasn’t just the gold standard, it was the standard. But then, through the Fisher decision, Justice Kennedy’s dissenting opinion from Grutter silently grew to “become” the new blueprint. Who knew? And wouldn’t it be unfair to hold the university to this unforeseen set of rules? As Higginbotham pointed out, not even the Fifth Circuit had “anticipat[ed]” this transformation.
Whether the Fisher Court really did change the affirmative action blueprint is likely to serve as the decisive factor for the Fifth Circuit: If the court believes that Fisher changed the rules, it will likely send the caseback to a district court for a trial, wherein UT can present new evidence demonstrating the necessity of its race-conscious admissions plan. But if it determines that Justice O’Connor and Justice Kennedy were in fact singing the same tune all along, from Grutter to Fisher, the court will probably take a swing at the case itself. And as UT’s president related after the rehearing, a ruling against the university would be “a setback to diversity, not just at the University of Texas, but at universities across the country.”
Scott Greytak is an associate with Campinha Bacote LLC in Washington, D.C., where he provides legal analysis, policy recommendations, and commentary on the intersection of civil rights and education policy.