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.
Thursday, December 19, 2013
A new article by Kristen Ulan examines the connection between home prices and school assignment zones, particularly in the context of school integration. She uses Charlotte, North Carolina, and Columbia, Maryland, as case studies to compare and contrast. Her introduction explains:
While price is a significant factor in purchasing real estate, more important is location. Different individuals have varied location requirements for their desired property. Younger individuals and couples without immediate family plans typically do not consider the assigned schools as much as a family with young children. Likewise, for those with young children, proximity to bars and nightlife is not as imperative as the local school district, neighborhood safety, and nearby children. The neighborhoods involved in this case note tend to attract families that care most about the school district and boundary lines. In Charlotte, North Carolina, there is a significant association between real estate prices and high school districting, whereas in Columbia, Maryland there is not the same association. Due to this, real estate prices for houses located in areas of proposed redistricting and border areas in Charlotte fluctuate and real estate in these areas tends to be underutilized. Because Columbia residents do not face the same fluctuation and uncertainty, there is greater incentive to fully utilize real estate by owners. The history of the areas suggests that this difference may lie in the different societal choices made forty years ago between integration or fighting integration in schools. Both counties' school board societal choice is still unfolding and the effects are much different in Howard County, which implemented voluntary integration, compared to Mecklenburg County, which fought to keep segregation all the way to the Supreme Court.
Her article offers fascinating and important analysis for anyone interested in the feasibility and politics of school integration. I would note, however, that it proceeds on a contested premise: that home location is tied to school assignment. As a practical matter, this is the case in the vast majority of districts. Thus, the premise has strong footing. But some integration policies disentangle home location from school assignment. In fact, that was exactly how the integration policies in Parents Involved v. Seattle Schools worked. Louisville, for instance, expanded the concept of neighborhood school. Students no longer had a single neighborhood school--traditionally the one closest to the home--but several from which to choose. This meant that a student's assignment zone was rather large.
This flexibility had an interesting effect on the housing market: there was not the same incentive to "buy into" a "desirable" neighborhood and, as a result, housing segregation actually declined. While the decline was small, the notion that housing segregation would decrease rather than increase in response to school integration is remarkable. My post on Greenville, SC, last month raises the same possibilities. Greenville has a completely open student enrollment process. All schools in the district are open to students from all locations. Historically, this type of plan has been dangerous for integration, unless specific controls and weights were built into the system. Somehow, however, Greenville has managed to make it work without weights. On the whole, its schools are effective and relatively integrated.
Ulan's article, nonetheless, makes an important contribution based on prevailing realities. The article's full citation is Kristen Ulan, How Uncertainty in the Redrawing of School Districts Affects Housing Prices, A Case Study: Comparing Neighborhoods in Charlotte, North Carolina, and Columbia, Maryland, 2 U. Balt. J. Land & Dev. 113 (Spring 2013).
Thursday, December 12, 2013
Earlier this summer, the Missouri Supreme Court in Breitenfeld v. School District of Clayton, 399 S.W.3d 816 (Mo. banc 2013), rejected a claim that a Missouri statute requiring a school district to recieve transfer students from nearby unaccredited districts violated the state constitution's prohibition on unfunded mandates. A similar action was filed in another school district. Tuesday, the Missouri Supreme Court reaffirmed its position in Blue Springs R-IV School Dist. v. School Dist. of Kansas City, 2013 WL 6448904 (2013), writing:
While this case was pending on appeal, this Court issued its opinion in Breitenfeld v. School District of Clayton. 399 S.W.3d 816 (Mo. banc 2013). Breitenfeld involved a very similar claim that the transfer provisions of section 167.131 constituted an unfunded mandate by requiring that students in the then-unaccredited St. Louis Public Schools be permitted to transfer to schools of their choice in adjoining counties. This Court rejected that argument, holding that section 167.131 merely reallocates responsibilities for educating students among districts and that the Hancock Amendment prohibits only new or increased levels of activities, not a shifting of responsibilities among school districts.
The holding in Breitenfeld is determinative. Section 167.131 does not mandate a new or increased level of activity but merely reallocates responsibilities among school districts. Further, this Court does not find that the State stipulated to the contrary below, and in any event the State may not by stipulation bind this Court to an erroneous statement of law. The judgment in favor of the Independence, Lee's Summit and North Kansas City taxpayers is reversed, and the judgment against the Blue Springs and Raytown taxpayers is affirmed.
Tuesday, December 10, 2013
Over the past few months, I have noted some major agreements by OCR that have expanded equal access to AP courses and other high level curriculum for minority students. The most notable was in Lee County, Alabama. Based on recent news, OCR appears to be continuing to press that issue elsewhere. News outlets in Michigan recently reported that, at the behest of/in conjunction with OCR, Grand Rapids Public Schools its revising its classroom assignment and admissions policies in an attempt to remedy the under representation of African-American students in AP, honors and college preparatory courses. The district and OCR hope to reach a settlement agreement soon. The district indicated that the first suggested step is to hire an outside consultant to analyze its data and identify what current barriers to equality might exist. The distict has already jumped on that task. Last week, the board approved a contract with the National Equity Project to begin the research. Kudos to OCR for staying on top of this issue, which research by Jeannie Oakes and others has long shown is the hidden segregation in our schools, but which has an enormous impact on the education children receive.
I am not sure whether it is related to OCR spotlighting the issue, but the New York Times recently reported on several other major school districts that are independently taking the initative to expand access to AP curriculum for poor and minority students.
Thursday, December 5, 2013
Aaron Taylor's two recent posts with us call into question the sincerity of some elite universities that profess a commitment to merit based admissions. His posts suggest a commitment to money. Unfortunately, one of the nation's very finest public universities is heading toward that camp. The University of Virginia is one of the least socioeconomically diverse colleges in the country. According to the study in LaJuana's post this morning, only the University of Delaware has a smaller percentage of students attending on Pell Grants. To UVA's credit, it, like the Stanfords of the world, previously adopted an extremely generous financial aid package for low-income students, whereby it would cover the full financial need of students whose families fell below 200% of the poverty line. Announcements of these sorts almost always gain universities praise on NPR. In fact, I recall a slew of these stories in recent years ago, as the elites sought to outdo one another.
As critics often point out, however, these programs often have little effect on these universities because students from that income bracket rarely gain admission to these top universities. In other words, it is not a diversity in admissions program, but rather financial aid premised on making it through the admissions process.
The problem for UVA is that its program worked too well. Low-income students have gained admission and taken the university up on its offer. "The proportion of students eligible for need-based aid under the program has grown from 24 percent to 33 percent. And the share of the student body that is low income has risen from 6.5 percent to 8.9 percent." UVA's response: end its no-loan policy for low-income students next year. The most flattering version of this story is that UVA is a victim of its own success and now cannot afford the program. Given the wealth of UVA and its overall budget, Ed Central doubts this. The least flattering version is that UVA was more interested in the public relations benefits of the program than diversity.
Tuesday, December 3, 2013
Forbes recently published an editorial entitled, The Farce of Meritocracy: Why Legacy Admission Might Actually Be a Good Thing. The thesis of the piece is that legacy admissions preferences are so absurd that they may actually be useful in exposing the farcical nature of our meritocratic notions. While I agree that legacy preferences are antithetical to conceptions of merit, I strongly disagree that they are in any way “a good thing.”
As the author points out, legacy preferences tilt the admissions game in ways that allow social, financial, and political capital to masquerade as merit, thereby further disadvantaging already disadvantaged applicants. Put simply, legacy preferences preserve privilege. I understand what the author was attempting to do—use irony to highlight an absurdity. But I guess I have less faith in the ability of some to grasp the shrewdness of the piece.
I have written in other spaces about the effects of un-meritocratic privilege in selective admissions. So there is no need to revisit those points here; but the author made one point is that I think is deserving of further emphasis. He writes the following about Stanford’s admission process:
Applicants are not just given preference because they are children of alumni, but because they are children of alumni who donate money…If alumni have donated money, the admissions office will know about it. In any other circumstance, this would be considered bribery. But when rich alumni do it, it’s allowed. In fact, it’s tax-subsidized.
This point cannot be emphasized enough. The tax code subsidizes the de facto (if not actual) bribery of selective colleges and universities all over the country. Privileged individuals are allowed to use un-meritocratic means (in this case, money) to tilt the admissions process in their favor (legacy applicants at Stanford are three times more likely to be offered admission), and in the process, they receive a tax deduction. And if that is not bad enough, the institution is allowed to collect the payoff free of taxes as well. In this context, less affluent individuals are contributing, in the literal sense, to their continued disadvantage.
We spend seemingly endless amounts of time arguing about the appropriateness of so-called “welfare” programs for the poor, but rarely give the same attention to welfare for the rich. Similarly, we express passionate indignation (righteous and otherwise) about racial preferences, while accepting socioeconomic preferences as simple facts of life.
But let us be clear: not all preferences are created equal. And racial preferences premised on broadening access to opportunities are far nobler than those, like legacy admissions, that merely preserve the unequal and unjust status quo.