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.
Monday, November 25, 2013
Friday,U.S. District Court Judge Ivan Lemelle ruled that the Department of Justice is entitled to monitor Louisiana's voucher program, although the details of that monitoring are yet to be determined. The judge gave the state and DOJ 60 days to agree on a process. Both sides are claiming victory in a resolution limited to monitoring.
Bobby Jindal took victory in the fact that "the judge acknowledged that data provided by the state show the program does not have a negative impact on desegregation. We are also glad the judge made clear he does not want to disrupt the scholarship program." But consistent with my most recent post on the case that this is a controversy Jindal hates to see go away, he suggested that there is an ongoing battle that he will fight, remarking ,"We will draw a hard line against allowing the federal government to control the scholarship program and handpick schools for Louisiana's children." Unfortunately for Jindal, DOJ is not suggesting anything of the sort.
DOJ, instead, is claiming victory, as minor as it may be, in the ability to monitor the program. Jocelyn Samuels, DOJ acting assistant attorney general for the civil rights division, remarked, "We are pleased that the court has supported the department's position in this matter," and added, "This should not have been controversial in the first place." Samuels last point was mine since this dispute began. Yet, given the low stakes involved in a monitoring battle, one wonders how this case made it this far.
Thursday, November 21, 2013
In 1996, the Connecticut Supreme Court issued its momentous decision in Sheff v. O'Neill, becoming the first and only state high court to hold that racial isolation in the Hartford schools violated the state constitutional right to an equal education. Finding a remedy that everyone could agree on and comply with has been the challenge of the following decade and a half. The state would agree to a set of goals one year, only to be hauled back into court a year or two later with charges of non-compliance. Progress has not be a straight line, but has occurred. This year the state appears to have met it integration goals. While full integration is far from complete there, this year's numbers are a testament to what is possible and rejoinder to those who accept segregation as a given.
The Sheff Coalition Movement released this statement this morning:
The state has released 2013-14 enrollment figures for schools and programs covered by the Sheff v. O'Neill settlement agreements. Over 19,000 students are now participating in the Hartford region's innovative two way voluntary school integration programs. This figure includes all city and suburban students attending regional magnet schools, Hartford students participating in Open Choice, and Hartford students attending regional technical and agricultural high schools.
The state has also exceeded its 2013 goal of 41% of Hartford minority children in "reduced isolation settings" (see calculation below*) - and this number includes over 38% of Hartford children now attending racially and economically integrated schools (schools that meet or are approaching the regional integration standard).
In spite of this important progress, the state is still unable to meet the growing demand for integrated school options. The Sheff Movement coalition has called for a doubling of the integration goal in the next five years.
"These enrollment figures are good news as we move into the next phase of Sheff implementation," said Elizabeth Horton Sheff, co-chair of the coalition, "It shows we have a healthy growing system and that is working. But 41% is not enough - we need to keep growing this system so all children have the ability to attend diverse schools."
Wednesday, November 20, 2013
Yesterday, DOJ withdrew its requests for an injunction of Louisiana's voucher program. Most conservatives and choice proponents immediately rejoiced and appeared ready to move on. Bobby Jindal, however, displayed either minor disappointment or an inability to accept victory graciously. My read is that he is disappointed this issue is going away and is going to try to keep it alive as best he can. The problem is that he only remaining objection is paperwork.
While DOJ is no longer seeking an injunction, it does want to continue to monitor the program to ensure it does not have segregative effects. To do so, it wants to receive data each year on the program. Data tracking, demographic shifts, and regular status conferences to review them are standard fare in desegregating districts and there really is no basis to object. One never knows to which side's advantage the facts will play, but monitoring progress and regression is absolutely necessary for courts to carry out their responsibility.
Jindal's response: "This is a typical Washington move. The updated Department of Justice request reeks of federal government intrusion that would put a tremendous burden on the state, along with parents and teachers who want to participate in school choice.” Louisiana's state superintendent also fell in line behind his governor, calling the request for data a “power grab. . . .They want to retain control over something that we believe should be in the hands of parents. . . .It is clear that they want that power.”
Given our data driven and reporting world, turning of this small data set over is unlikely to pose much, if any, additional burden on Louisiana. This sounds more like an attempt to continue the political rhetoric and disregard basic desegregation law. The troubling aspect of this case is why DOJ is taking this position now. My perspective throughout was that we had to respect the legal process in a case where existing desegregation orders were already in place and that we could not presuppose the facts. What is unclear is whether DOJ had been blocked from getting the facts initially and, thus, filed suit (but now that it has the facts believes there is no problem) or DOJ folded under political pressure. DOJ is not one to fold and mid-way into this battle had indicated that all it wanted was data. In that respect, its actions have been consistent. But if it only wanted data, why did ask for the program to be enjoined? One explanation would be litigation strategy. If in fact Louisiana was being obstinate in regard to the minor request for data, the request for injunction upped the ante and protected against the possibility that Louisiana was hiding something. Regardless, to Jindal's likely disappointment, this case is finally poised to fade away into the normal litigation progress, which only a select few will follow.
Tuesday, November 19, 2013
The issue of race in public education has long been salient in Missouri. St. Louis, along with its cross-state counterpart, Kansas City, was an epicenter of the battle for desegregated schools. Through much of Missouri’s history, great pains were taken to ensure that schools were racially isolated. The state constitution mandated the racial segregation of schoolchildren until 1976, more than 20 years after the provision was rendered void by the U.S. Supreme Court in Brown v. Board of Education.
Post-Brown desegregation efforts were reluctant, resistant, and protracted. But, ultimately, they were deemed successful. In 1999, St. Louis Public Schools (SLPS) reached a settlement, which ended federal court supervision of its desegregation efforts. But while schools in St. Louis are legally desegregated, they are not integrated in any practical sense. Almost 60 years after Brown ended segregation by law, students in St. Louis attend schools that are segregated in fact. And with 89% of St. Louis public school students qualifying for free or reduced lunch, socioeconomic isolation pervades as well.
Racial and socioeconomic isolation lead to racially and socioeconomically disparate educational outcomes. As I explained in a previous writing:
Disparities among St. Louis area school districts have an undeniable racial character. Of the seven area districts with black student enrollments above 50%, all have free or reduced lunch rates of at least 60 percent, compared to only two of the 15 majority white districts. All of the majority black districts have graduation rates below the state average, compared to only one of the majority white districts. In five of the seven majority black districts, a lower proportion of graduates enter four-year colleges than the state average, compared to only four of the fifteen majority white districts. Moreover, in four of the majority black districts, the proportion of graduates immediately undertaking any post-secondary education is lower than the state average, compared to only one of the majority white districts.
Unfortunately, the suburban migration, or white-flight, that has characterized the post-WWII era, rendered integrated schools all but impossible in St. Louis and other cities. Recognizing this reality, many people advocated for desegregation plans that encompassed entire metropolitan areas, rather than individual cities only. The idea was that because of their broader scopes, metropolitan plans would minimize the effects of segregative housing patterns on school demographics and also make “flight” more difficult. However, in 1974, the U.S. Supreme Court made it difficult for federal courts to impose such plans.
In Milliken v. Bradley, 418 U.S. 717, 745 (1974), the Court held that for suburban districts to be brought into a desegregation plan, it must be shown that those districts operated segregated schools or were significantly affected by school segregation in other districts. This decision, while plausible on its face, failed to account for the effects of housing policies and practices that fostered suburban migration, segregated neighborhoods and, as a result, segregated schools. The actions of individual school boards are but a small factor in the calculus of racial isolation. But Milliken ensured that federal judges overseeing school desegregation would be severely hamstrung in their efforts to bring about actual integration. The demographics of SLPS and many other districts across the country are legacies of Milliken.
Monday, November 18, 2013
How Diversity Stole the Show at Oral Argument in Schuette v. Coalition to Defend Affirmative Action, by Scott Greytak
I was still in the early stages of using my neighbor – an apathetic marble pillar – as an armrest when Schuette’s oral argument turned into a debate over diversity in higher education. This was mostly a surprise, considering how the appeal before the Court concerned Proposal 2, a 2006 Michigan ballot-initiative-turned-constitutional-amendment that hinged on the applicability of something called the “political restructuring doctrine.”
A little background: After the U.S. Supreme Court affirmed the constitutionality of race-conscious admissions some ten years ago in the now-famous case Grutter v. Bollinger, Jennifer Gratz, the plaintiff from its companion case, started rolling the snowball for what would become Michigan’s Prop 2. The referendum, which banned racial preferences in higher education, public employment, and government contracting, was approved by Michiganders 58%-42% in 2006, only to be struck down six years later at the Sixth Circuit Court of Appeals by an 8-7 vote. The Sixth Circuit, applying the political restructuring doctrine, determined that the amendment made it unacceptably difficult for minorities to access and influence Michigan’s political process. Jennifer Gratz & Co. appealed the decision, and the final review of Schuette (pronounced “Shoe-tee”) went into motion.
Because an aggressive Schuette Court ultimately could, some argue, choose to outlaw affirmative action across the board, conversations on diversity at oral arguments were certainly possible, but were far from necessary. Nothing about Schuette speaks directly to the Supreme Court’s diversity-in-higher-education jurisprudence. A conversation about the political restructuring doctrine – interrupted every now and then by an heroic tumbleweed or two – seemed written in the stars.
Forget that plan. Though the intricacies of the doctrine would receive plenty of airtime later, the eight justices (Justice Elena Kagan was absent due to her former involvement while U.S. Solicitor General) wanted to talk diversity first. And not two minutes would go by between Chief Justice Roberts announcing Schuette and the unearthing of freshly-buried ideological hatchets. Even though, according to the first oralist – Michigan Solicitor General John Bursch – the “point [of Schuette] isn’t to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about,” right from the jump, Bursch and Justice Sonia Sotomayor picked up where the Court had left off in last term’s Fisher v. University of Texas at Austin, arguing diversity and – most attention-grabbing – the viability of race-neutral alternatives to traditional, “check the box” affirmative action policies in higher education. Suddenly the courtroom was alive with old, familiarly controversial spirits that roamed the courtroom in search of warm-bodied jurists.
Fisher, which I consider the Court’s most misunderstood decision of its 2012-2013 term, dealt directly with the novel legal conundrum of race-neutral admissions plans, namely Texas’s Top Ten Percent Plan. The decision, released this past June, has since rekindled – in that slow-burning, “Purple Rain”-type of way- the smoldering controversy of affirmative action in colleges and universities.
Because Schuette offers the conservative bloc of the Court another swing at the use of race in admissions – albeit with a much smaller strike zone than in Fisher – all three oralists managed to inconvenience their primary points of law in order to speak to the larger ideological picture: “[T]here are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways,” Bursch – the eager beaver of the three oralists – offered after only slight provocation.
“I thought that in Grutter,” Justice Sotomayor shot back, “all of the social scientists had pointed out [that] all of those efforts had failed.” In response, Bursch highlighted how the University of Michigan could in fact increase its diversity levels if it eliminated its preferences for the children of alumni, and if it attached greater value to applicants’ socioeconomic statuses. (The latter idea has caught fire recently because of its near-airtight legality – it does not explicitly consider race, making it impervious to 14th Amendment-based challenges – its political digestibility, and, perhaps, its capacity to produce more diversity than traditional affirmative action.)
And so the gusto over diversity, Grutter, and Fisher rowed on for a bit, eventually beat back by the jurisprudential boundaries of Schuette and the political restructuring doctrine. Just a skirmish, it turns out. But one that reminded us all of the deeper issues yet to be resolved.
Scott Greytak is an associate at 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.
Friday, November 15, 2013
How One School District Bucks Trends in School Choice While Replicating Old Mistakes (And Still Seems to Come Out on Top)
Earlier this week, the Greenville County Schools in South Carolina made a change to their school choice policy, moving from a first come first serve basis to a lottery. The school system may not ring a bell to many, but Greenville has both historical and growning modern significance. For instance, it was the locus of desegregation sit-ins during the 1960s that led to a Supreme Court decision. Today, it attracts national recognition for its quality of life and economic vibrancy. It is regularly listed among the top 10 fastest growing cities in the country and among the top 10 strongest job markets. Several multinational businesses, including BMW and Caterpillar, have set headquarters or major facilities there.
The quality and attractiveness of the school system is necessarily part of this mix. The school district assigns every student to a school based on neighborhood zones, but offers every family the opportunity to transfer out of their neighborhood school. About 18 or so percent of families have opted for schools other than those in their neighborhood. Prior to this year, parents literally had to stand in line at the school of their choice and transfer were accepted on a first come first serve basis. Local news likened it to Black Friday at Best Buy. Some parents would camp out over the weekend to increase their children's chances. Last year, in Best Buy fashion, the first come first serve process resulted in a physical injury to one parent.
This year the board began debating options. Substantial numbers of parents preferred the old system. Why not give the seats to the most eager and committed, they charged. My suspicion is that those with that opinion were disproportionately represented at the school board hearings. Those who can stand in line for enrollment are also those most likely to have the time and ability to go to school board meetings. This skewed voicing of opinions almost resulted in the district retaining its old policy. Better judgment prevailed and the new policy requires parents who wish to transfer to identify three preferred schools. Admissions are then granted on a lottery basis.
After digging at the details, a few unusual facts struck me. First, the old system is the exact type that in the past has perpetuated segregation and inequality. It incentivizes flight from minority schools and flight from underachieving schools, but tends to only give refuge to the advantaged. But based on what I saw in the data, the choice plan was not obviously having this effect, maybe because the African American and Latino population in total is only 25% of the district and the incentives for racial flight are not as high. Maybe, the district is working some other magic. I suspect it is.
Second, families choose to transfer out of schools that would otherwise be characterized as good. The district's explanation is that parents are basing transfers on legitimate concerns like commutes, after-care, proximity to the parent's workplace, etc.
Third, the schools with the highest percentages of African American students tended to have the highest waitlists. Based on historical patterns, I doubt that this is because people are fleeing to African American schools. My assumption is that these schools either had fewer available openings to begin with, they are geographically desirable, or they are just among the better schools. Regardless, race is not having it normally substantial impact.
None of this is to say that Greenville is a model. Parents are responsible for transportation when they transfer, which tends to have substantial socio-economic and racial impacts. In addition, the lottery is completely blind, which from an equity standpoint is problematic. Consider that students from good schools can randomly gain admission to a school of choice over another student with special needs or a student coming from a failing school. For this reason, a blind lottery foregoes the possibility of balancing schools in various important ways.
Despite these flaws, Greeneville has gotten some other important things exactly right. It has somehow fostered an open lottery system whereby choice is often being sought for legitimate rather than illegitimate reasons. Equally important, it has increased capacity in all of its schools so that choice are available. Every school has a substantiall number of available slots for transfers. Finally, the district has gotten people excited about their schools, gauranteed options, and made its school system attractive to business considering locating there. While the story of choice is different in every locality, this one likely warrants special attention and research.
Wednesday, November 13, 2013
Education Next ran a long story on diverse charter schools this past winter. Last week ,the New Orlean's Advocate ran its own story about a new diverse school in its own backyard. These schools are remarkable because they have tended to sprout up in districts that are otherwise racially and socio-economically diverse, like as New York City and Washington, D.C. They show that charter schools are capable of achieving ends that otherwise allude regular public schools. Some of them also show the capacity to draw students from across district lines, thus evading the primary driver of segregation, which Milliken v. Bradley indicated was beyond the power of courts. For these reasons, Jim Ryan touted the possibility of charter schools in his book, Five Miles Away, A World Apart.
While these schools show promise, they remain tiny drops in a huge bucket of segregation. The Century Foundation has identified 24 diverse charters that have sprung up in recent years. As of 2010, there were over 5,300 charters and their numbers have increased since then. In addition, some local communities charge that this diversity has come with a price. Some claim the schools have exclusively catered to and recruited middle income families, fostering the perception that they are schools of exclusion rather than inclusion. Likewise, advocates in NYC have emphasized that their diverse charter schools are not diverse in all respects, but rather enroll far fewer special education students than other schools. The bottom line seems to be we must push far much harder for diverse schools and not lose site of the fact that it matters how we achieve diversity. We must be equally mindful that they are open and diverse in all respects.
Tuesday, November 12, 2013
A group of UCLA African American males, led by Sy Stokes, an African American Studies student, created a video to call attention to the dwindling diversity at UCLA. The basic facts as they see them are that only 660, or 3.3%, of the 19,838 males enrolled at UCLA are African American. And 65% of those 660 are athletes. The numbers were even worse for the entering class in Fall 2012. Only 48 were African American, or just over 1 percent of the entering class. They also point out that the graduation rate for African American males at UCLA is only 74%, so only 35 African American males from that entering class will be expected to graduate. They then point out that the school has 109 athletic national championships, more than twice the number of African American males in the entering class. Based on this, they levy the charge that the school only sees African American males as important to increasing the school's athletic winning percentage.
Friday, November 8, 2013
A new report by the Altarum Institute and the W.K. Kellogg Foundation, The Business Case for Racial Equity, details the economic impact of racial inequality and the benefits of advancing racial equity, particularly given the evolving demography of our nation. It argues, based on economic and social science studies, that increasing racial equity would benefit businesses, government, and the overall economy. It focuses on housing, education, health and criminal justice as the primary areas of inequality that need to be addressed. In education, the report posits that school integration, pre-k education, and high expectations for minority students would produce significant benefits. The arguments and research in regard to each of these education proposals are not new, but the report, unlike most, does bring these three distinct educational reforms together into a single argument about the economy.
The articles from Denver University's symposium on Keyes v. School District No. 1 are now available on westlaw. The symposium includes articles by Mark Tushnet, Kevin R. Johnson, Michael A. Olivas, Rachel F. Moran, and Phoebe A. Haddon, as well as memoirs by individuals personally connected to the events in Denver. While all address interesting topics, Mark Tushnet's keynote address and article, A Clerk’s-Eye View of Keyes v, School Dsitrict No. 1, 90 Denv. U. L. Rev. 1139 (2013), offer a particularly interesting account of the inner workings of the Court surrounding the case. Tushnet was clerking for Justice Thurgood Marshall when Keyes was decided. Relying on his personal experience and other new available materials from the Court, he explores the complexity of the Court's deliberations.
The story of these internal debates is not entirely new. Justice Powell's concurrence, for instance, explicitly reveals the depth of his disagreement with the Court. And, Bob Woodward and Scott Armstrong's book from 1979, The Brethren, also explored some of these divisions. Tushnet, however, best captures the doctrinal battles occurring on the Court and the personalities behind them. As he notes, seven out of eight justices found there to be a constitutional violation in Keyes. The fractured decision represented not so much a debate over what to do with Denver, but a fight over what Keyes would mean for places like Detroit and Boston.
Although not explicit in the opinion, the fight over busing largely drives the Court's final decision. Powell wanted to reject de jure versus de facto distinctions, but in doing so, he wanted to limit the available desegregation remedies, particularly busing. The majority wanted to keep busing as a way to affirmatively further integration. The only way it could get the votes to do that was by drawing a distinction between de facto and de jure segregation. That distinction would shield many districts from busing, but keep it well alive in throughout the south.
From my perspective , it is not clear that the Court fully appreciated the long term ramifications of its decision. The Court may have been too caught up in the times, which is understandable, and unsure of the best path in regard to its first northern desegregation case. Regardless, Keyes is later cited as the foundation for requiring intent to prove a constitutional violation in all racial discrimination cases. As a result, Keyes drew the line that placed the bulk of racial inequality in all areas of life off-limits. And while the de jure-de facto distinction may have saved busing in some districts (the evidentiary presumption in the case also became a powerful tool in the south), it created the principle by which to later place significant limits on desegregation. In effect, Keyes was the beginning of the end for desegregation.
All of the article titles and authors follow the jump.
Wednesday, November 6, 2013
In a brief released today, Kevin Welner, Director of the National Education Policy Center, emphasizes what I have argued in several posts regarding the litigation over Louisiana's voucher program: the politics of vouchers are attempting to run roughshod over the basic constitutional doctrines of school desegregation. In a far more detailed way than I could through blog posts, Welner's brief details how this litigation got transformed into "Much Ado about Politics." The brief's introduction:
explains that Louisiana Gov. Jindal and other opponents either misunderstand or misrepresent the actions of the US Department of Justice, which is attempting to bring Louisiana’s voucher program within the scope of existing law and to avoid predictable harm to children that would occur if their racial isolation were increased. Research evidence does not support claims that vouchers advance educational or civil rights. The evidence does, however, establish that racial isolation is harmful to children and to society. Such racial isolation was not acceptable when Freedom of Choice plans were first proposed in the 1960’s, and it is no more acceptable today. Whereas the goal 45 years ago was to maintain segregation, the goal today is to forcefully push aside concerns about segregation. Neither goal is consistent with core American values.
The full brief is available here.