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.
Tuesday, November 5, 2013
DOJ Supports Texas Affirmative Action Plan on Remand and Argues Texas Still Entitled to Deference Regarding the Existence of Critical Mass
The Department of Justice filed its amicus brief in the remand in Fisher v. Texas last week. The key question on remand is whether the University of Texas's consideration of race in admissions is necessary. Bound up in that question the first time around was the level of deference that a court should afford a University in reviewing its admissions policies. The Department of Justice argues in its brief that, while the Supreme Court indicated that the lower court must independently review whether the admissions policy is narrowly tailored, the University is still entitled to "due regard" of its educational goals and how the consideration of race furthers them. In particular, the University is still entitled to a level of deference in terms of what constitutes a "critical mass" of minority students necessary to achieve the benefits of diversity. The pertinent part of DOJ's brief states:
In this supplemental brief, the United States will address the Court’s question whether “the University [is] due any deference in its decision that ‘critical mass’ has not been achieved.” Grutter used the term “critical mass” as shorthand for the point at which a university has attained sufficient diversity to achieve the educational benefits of diversity. 539 U.S. at 330. The question for this Court is therefore how it should review the University’s conclusion that it lacked sufficient diversity in 2004 and 2008 to provide the educational benefits of diversity to its students. That question entails a qualitative assessment of the educational experience the University is providing, rather than, as appellant suggests (Appellant Supp. Br. 23-24), a rote calculation of the number of minority students enrolled in the University, a number that might seem “substantial” in the abstract.
This Court should independently review the University’s determination that it lacks sufficient diversity to fully provide the educational benefits of diversity, while giving due regard to the University’s exercise of its educational judgment and expertise in reaching its conclusion. The determination that the University lacks sufficient diversity is a necessary predicate for its ultimate conclusion that it is “‘necessary’ * * * to use race to achieve the educational benefits of diversity.” Fisher, 133 S. Ct. at 2420. Because the University bears the “ultimate burden” on that question, ibid., the Court must be able to meaningfully review the University’s conclusion that it currently lacks sufficient diversity to fully provide the educational benefits of diversity. The Court should therefore verify that the University has amply supported its conclusion with concrete evidence and a reasoned explanation of why that evidence indicates that the University is not providing the educational benefits of diversity. At the same time, because the University’s assessment of such evidence rests on the application of educational expertise and judgments about the University’s institutional mission, this Court should evaluate the University’s conclusions with due regard for the multi-faceted educational assessments underlying those conclusions.
DOJ's full brief is here.
As a follow up to my post last week about the myths about poor students, I wanted to explore the practical implications of Paul Gorski’s book and the myths he addresses. Gorski is on target in laying bare our stereotypes about poor children and how stereotypes can negatively affect poor students’ educational outcomes. In reading the excerpt from his book, however, one could get the impression that, but for stereotypes and inequality of opportunity, poor students would be on par with middle income students. After all, he asserts that poor families value education as much if not more than others; poor families’ linguistics are just as complex and intellectually stimulating as middle income families’; and that poor parents are just as effective and attentive as other parents.
As an advocate of integration, the immediate question for me was: why, then, would poor students perform better in middle income schools? I doubt there are any fewer stereotypes in middle income schools. And, I doubt it is just a matter of more resources. If that that were the case, regression analysis would show integration does not matter and that, with equal resources, poor students achieve at the same level in schools with high percentages of low income students as they do in integrated schools. But regression analysis shows that socio-economic integration does matter and money alone does not cancel out certain environmental effects. (Money, of course, does matter. But it requires more than equal money to counteract disadvantage.)
The answer to this seeming quandary lies in what Gorski does not say or, rather, the nature of the claim he is making. Gorski’s arguments debunk moral and normative claims about poor families. Most obviously, he responds to the moralistic notion or judgment that poor people are lazy and deserving of their station in life. The moral aspect of the other myths is not as obvious, but there nonetheless. For instance, he debunks the notion that poor people are inattentive and ineffective parents. In other words, many think poor people are not “good” parents or do not care enough to engage with their children. What Gorski really debunks is the notion that poor people do not have the same love for their children as anyone else. Debunking moral based assessments of poor parents, however, does not debunk objective factors. We all know love is not enough. Even if poor families loved their children more than middle income families, that love will not pay high priced college tuition, buy books, provide expensive summer learning opportunities. Nor does love cancel out the educational deficit that a parent might have him or herself. Thus, debunking the moral stereotype about poor people should not be taken to mean poverty does not matter.
While being middle income does not equate with being a “good” or “loving” parent, it does correlate with a lot of other objective measures that do matter to their children’s education. It also correlates with political power and the ability to hold schools accountability in numerous ways that matter. So, middle income students show up to school with built in advantages and they attend schools that are more likely to deliver on their obligations to students. For these reasons, school integration does matter even though stereotypes about poor children are false.
Friday, November 1, 2013
Finally, school voucher news that is not about Louisiana's fight with DOJ surfaces. This time it is a new development in the Southern Poverty Law Center's suit against Alabama. Late this summer, SPLC alleged that the Alabama Accountability Act, which allowed students to transfer out of failing districts and enroll in private schools and receive tax credits, created two classes of students: "those who can escape [failing schools] because of their parents’ income or where they live and those who cannot." According to SPLC, the Act violated equal protection.
Since then, in a move parallel to a parent group in Louisiana, three parents sought to intervene in the lawsuit against Alabama. The state trial court has now granted their intervention. Their primary role seems to be to emphasize the benefits of the program, notwithstanding SPLC's charges of discrimination. It seems to me that this intervention is distinct from that in Louisiana, which I argued earlier this week was probably inappropriate. The Alabama intervention makes more sense because it is not the adjudication of a violation of prior desegregation order but a challenge to the constitutionality of Alabama's current law as it stands. Regardless, this case remains one to watch. Although not as politically hot, this Alabama case may prove more doctrinally important, as SPLC raises novel claims that, if sustained, may have ripple effects elsewhere.
Alexandra Muolo’s article, Not So Black and White: The Third Circuit Upholds Race-Conscious Redistricting in Doe ex rel. Doe v. Lower Merion School District, 58 Vill. L. Rev. 797 (2013), is now available on westlaw. Doe v. Lower Merion flew under the radar of most until the last minute. The case involved a school district with just two high schools and a minority population of around ten percent. The new student assignment plan split that minority community between the two high schools. Interestingly, the challenge to the race conscious redistricting came not from the white community but from the minority community.
In an analytically complex and extremely important decision, the Third Circuit held that Justice Kennedy’s concurring opinion from Parents Involved in Community Schools v. Seattle was the controlling opinion and, thus, race conscious plans that do not rely on individual race classifications to assign students are not subject to strict scrutiny. Within a few days of the decision, the Departments of Justice and Education issued policy guidance reaching the same conclusions themselves. In short, Doe v. Lower Merion is the most important post-Parents Involved decision available.
Muolo’s article offers an in-depth examination of this case, pointing out those key aspects of the redistricting process that made it constitutional. Muolo concludes on a practical note:
When school districts are faced with Equal Protection challenges, the first step of the court will be to determine the appropriate level of scrutiny. While race-conscious integration policies only demand rational basis review, the policies still must be rationally related to a legitimate state interest. Though there are several approaches that school districts can take to avoid constitutional challenge, Doe provides a practical example. By explicitly listing race-neutral grounds for redistricting--the Non-Negotiables and community values--Lower Merion School District was able to implement a race-conscious policy that was rationally related to the legitimate purposes outlined by the Board of Directors. In the case of student redistricting policies, therefore, practitioners must advise school districts to document the legitimate, race-neutral interests for redistricting. As such, the developers of the redistricting plan may also consider racial impact, which will foster integration.
Tuesday, October 29, 2013
Just when you thought the battle over Lousiana's voucher program was fading into the background, Governor Jindal has something new to lash out about. A group of parents, or rather the Conservative Goldwater Institute on behalf of parents, sought to intervene in the desegregation case. DOJ opposes their motion to intervene, primarily arguing that they have no interest at stake in the case because DOJ is not seeking to take their vouchers away but to monitor the program as it moves forward. DOJ also notes that it represents the public at large and, thus, it can adequately represent the interests of these parents. Govenor Jindal reacted vehemently to the motion, saying “The Obama Administration is attempting to tell parents to sit down and shut up. It’s never going to happen. Despite whatever evolving legal argument the Obama Administration comes up with, the voices of thousands of parents will not be silenced.”
My suspicion is that Jindal helped orchestrate this intervention in the first instance because it would give him another wedge to drive in this case. To his defense, orchestrated interventions by the underdog are not that uncommon (query whether governors fit the role of underdog). But the obvious danger with interventions in this type of case is their likelihood of muddying the water. The legal issues in this case do not turn on what voucher families want or need, nor do they have legally vested rights in the vouchers. Rather, the issues in this case turn solely on desegregation law. Thus, whether Jindal likes it or not, these families do not have a clear role in this case; they simply care about its outcome more than most. But, of course, that is par for the course in desegregation cases, as they directly and indirectly affect so many students. In fact, scholars have analyzed the likely role that third parties' interests have played in shaping major desegregation cases like Milliken v. Bradley. Per this reasoning, even if these intervenors do not make it into the case, their interest will likely weigh heavily on its outcome, which is why I noted in my first post weeks ago that the longer Jindal could delay this case the better for him. More parents would have applied for vouchers and the pressure to not impede their expectations would mount.
Wednesday, October 23, 2013
Marian Wright Edleman recently interviewed Jerry Weast, the former superintendent of Montgomery County Schools in Maryland. Montgomery County is one the highest achieving school districts in the country. Edleman, obviously, wanted Weast's sense of how the district got there. The overall message was that the district focused on early childhood education a lot, and the focus was not limited to the district's own education program. Rather, the district reached out to private pre-school service providers and parents. The goal was to make all of the stakeholders aware of the benchmarks the district expected students to meet when they started kindergarten. Before the district's efforts, only 30% of its incoming kindergartners met the standard. Afterward, 90 percent did. The district also focused on "wrap-around" services for its students once they arrived.
As a strong supporter of pre-k programs and wrap-around services, I applaud the district's efforts. I would note, however, that conspicuously missing from the discussion was Montgomery County's housing integration strategies, which played a huge role in creating integrated and diverse schools and high achievement. In fact, a 2010 study by the Century Foundation, entitled Housing Policy is School Policy: Economically Integrative Housing Promotes Academic Success in Montgomery County, Maryland, confirmed that the District's commitment of extra resources to schools with higher need students paid dividends, but integrative housing policy had a larger effect. In other words, the county got more academic bang for its buck by integrating schools than it did by spending money on segregated ones. This is not to say Montgomery County should abandon any of its wonderful education programs or that we should not look to them as a model, but only that integration matters too. Integrated schools with wrap-around services would appear to be the perfect recipe.
Tuesday, October 22, 2013
Maimon Schwarzschild's article, A Class Act? Social Class Affirmative Action and Higher Education, 50 San Diego L. Rev. 441 (May-June 2013), is up on westlaw now. She argues that, while class based affirmative action in higher education may have some alure due to the legal challenges that race based affirmative action draws, class based affirmative action is problematic from a policy and justice standpoint. She writes:
But there are good reasons to think twice about class-based affirmative action. Some of the problems with class preference are common to any educational preference based on group membership rather than educational qualifications. But some of the most important reasons for caution are specific to preferences based on social class.
Comparing class preferences with racial preferences helps to point up some of the reasons for the allure of class preferences but also points up some of the problems. A crucial consideration is the question of who is to receive class preference. For example, what about immigrants and their children? In general, social class is difficult to define, and this very difficulty would confer great discretion and power on faculties and academic administrators who undertake to bestow class preferences: discretion that would be open to abuse for political, ideological, and other ends. Finally, there is the question of whether preferential treatment is necessary to increase educational opportunities for the less privileged or whether the call for class preferences reflects a mindset inimical to impartial standards and prone to preferences as a first rather than a last resort.
I am afraid, however, that she misses one of the major premises behind both racial and socioeconomic affirmative action. These policies are not simply to "preference" the underrepresented group, nor to discount "educational qualifications." Rather, when used properly, considerations of race and poverty are an attempt to better identify educational qualifications. Because socioeconomic and racial bias are "cooked into" the typical measures of educational qualifications, such as the SAT, considering race and poverty and necessary to compare apples to apples. More bluntly, a 770 score by a high income student on the reading portion of the SAT is not equivalent to a 770 by a low income score. Social science would indicate that the low-income student with the same score most likely has more aptitude than the wealth student. It is hard to be precise with generalized comparisons, but low income student with a 710 might likewise have more capacity.
As Richard Kahlenberg, similarly, notes: "Anthony Carnevale and Jeff Strohl of Georgetown University found that the most socioeconomically disadvantaged student scores 399 points lower on average on the combined math and verbal SAT than the most socioeconomically advantaged student. A socioeconomically disadvantaged student who beats the odds and scores fairly well despite the obstacles she faces is likely to have more potential in the long run than a student who has been given all sorts of advantages in life. To be genuinely meritocratic, we need to consider socioeconomic status."
Monday, October 21, 2013
The Southern Education Foundation's new report, A New Majority: Low Income Students in the South and the Nation, is mind-boggling in its implications for the future of educational equity, educational quality, and integration. We have long known of the suburban-urban divide that stalled integration decades ago, as well as the flight of families with means to private schools. This new report shows that things have gotten worse, really worse. Throughout the south and much of the west, poor students are now the majority of enrolled students statewide. In Mississippi, an eye-popping 71% of public school students are poor. The north and midwest are still majority middle income, but only on a statewide basis. Thirty-eight of 50 states' city schools are majority poor.
This is a new phenomenon. It was not until 2007 that the south's schools become majority poor. The south and other states only crossed over into this territory as a result of enormous growth in poor students between 2001 and 2011. The south saw 33% growth in poor students, the west 31%, the midwest 40% and the northeast 21%. School funding has been woeful during this same period. As SEF's chart below reveals, the northeast is the only place where funding has kept pace with with the growth in the percentage of poor students (although this is not to say it has grown enough there either).
Based on these findings, I see four enormous problems. First, meaningful integration has become even less possible than before. If one accepts the dominant social science findings of the past several decades that attending a middle income school is a major predictor of success, these crucially import schools and districts are disappearing. In other words, there are fewer and fewer people with whom to integrate. Second, the political pressure against integration and for neighborhood schools is going to mount among those middle income families that remain. Although not often talked about, one of the key events in Wake County, North Carolina in the past few years was that it became majority poor. Thus, it is no surprise that this district, which had a long commitment to integration, has seen enormous tensions and took steps to undo integration. In short, Tea Partiers may have flamed the fire in Wake County, but tipping over into a majority poor district started the fire.
Third, funding for schools just became a lot more problematic because the important political base that would otherwise support it is no longer a majority. It has bled off into private schools and wants vouchers and tax breaks, both of which have seen rapid growth in just the past few years. Moreover, another significant chunk of middle income families has left or may leave for charter schools in hopes of isolating themselves at public expense. Either way, support for the traditional public school is in serious jeopardy.
Fourth, the public schools got dumped into a deep hole over the past decade. Most research indicates that poor children require 40% more funding than middle income children to receive an adequate education. Even if we assumed that 2001 levels of funding were adequate, the growth in funding since then has been insufficient to cover the cost of the additional poor children entering public school. But, of course, funding was not adequate in many, if not most, districts in 2001. Thus, school funding has gone from bad to awful.
I wish I could offer constructive thoughts on the way forward, but this report is just too much at the moment. It calls for nothing short of serious, crisis mode conversations about our commitment to public education that very few leaders are willing to have. After all, their constituents are already pursuing other options. A change of course will only occur if they take this report as seriously as I do.
Monday, October 14, 2013
Friday, the UCLA Civil Rights Project and the Institute on Education Law and Policy at Rutgers University-Newark jointly released two reports on school segregation in New Jersey. The first by the Civil Rights Project tracks racial imbalance in New Jersey's schools from 1989 to 2010, finding increasing levels of imbalance over time. The second report by the Institute on Education Law focuses on the most heavily segregated schools in the state. It finds several urban areas in the state with schools that "enroll virtually no white students but have a high concentration of poor children." These schools, however, "are located in close proximity to overwhelmingly white suburban school districts with virtually no poor students."
This second report, unlike many of the past, goes one step further to analyze the legal implications of this hyper segregation, arguing that it violates the state's constitution. New Jersey's education clause is one of the strongest in the nation and has been used in the Abbott v. Burke litigation to ensure one of if not the highest funded and most progressive school finance formulas in the country. Less tested is the state constitution's prohibition on segregation. For years, scholars have suggested that New Jersey would make a good state to replicate the strategy of Sheff v. O'Neill, in which the Connecticut Supreme Court held that its state constitution prohibited school segregation, even where the segregation was unintentional.
These two reports should turn up the heat on the state by focusing on it specifically and suggesting a legal battle may be coming.
Wednesday, October 9, 2013
As a matter of procedure, the data in Louisiana does not matter. Districts that have maintained de jure segregated schools and are still under court order to remedy the effects forfeit the right to assign students any way they want, even if their means are race nuetral. This has been the law for forty years. This legal principle is irrelevant in most post places because the vast majority of districts have been released from court order. But in other districts, courts are still there to look over their shoulders because these districts have not fixed the problem, nor proved that they can be trusted. Thus, as a matter of procedure, I still maintain no sympathy for Louisiana and its claims that it ought be free of second guessing.
Beyond the procedure, however, the facts are the facts, and new ones are coming out. When complying with court oversight, these desegregating districts should be free to move forward with any legitimate plans that do not negatively effect desegregation. According to DOJ, Louisiana had previously been less than forthcoming with the data necessary to make this determination. Now that the data is becoming available, it looks like some of the facts are favorable to Louisiana. According to a study published by Education Next, the voucher program improves racial balance in the vast majority of schools that students are leaving. (See their data to the left). Rick Hess, a national education commentator, uses these facts to say, in effect, I told you so, and jump on the bandwagon in criticizing and questioning DOJ's motions in this case.
But not so fast. Taking Ed Next and Hess's facts as true, it does not mean that the program is constitutional in its entirety. Desegregation orders are against individual school districts, so in those districts where vouchers increase segregation, they would be presumptively unconstitutional if the effect is more than minimal. In the other districts where racial balance improves racial balance, which is the vast majority, there is no problem and the programs can remain in place. In other words, how the program performs on the state level is largely irrelevant in terms of individual districts. Thus, the fallacy of Hess and others' reasoning is to only look at this program, on the averages, at the state level, instead of at the school and district level which is where segregation actually occurs. But to be clear, I do not have all the facts. The negative effects could be minimal in all of the school districts or overshadowed by other good things the state and district might be doing in within districts. Yet we do not know the answers to these things, hence my contention from the start that we should honor the judicial process and keep national politics over vouchers out of it.
Monday, October 7, 2013
Nearly a decade ago, a few graduates and current students from Maryland's historically black colleges and universities (HBCU), along with a local attorney or two, began questioning the funding and expansion practices of the state's entire university and college system. They filed suit, but soon found they were in for an enormous fight and needed more legal resources. With the help of John Brittain, the Howard University School of Law Civil Rights Clinic agreed to take on the case. Professor Aderson Francois and his law students largely carried the law suit in the early days. They were later joined by the Lawyers' Committee for Civil Rights and pro bono attorneys from Kirkland and Ellis.
Yesterday, the plaintiffs' long road resulted in a victory. The United States District Court for Maryland found in Coalition for Equity and Excellence in Maryland Higher Education v. Maryland Higher Education Commission that, in fact, the state had engaged in unconstitutional action in regard to Maryland's HBCUs. The court rejected plaintiffs' claims that the state's funding practices were unconstitutional, but, on the all important issue of the overall structure of the Maryland system, the court wrote:
I find the plaintiffs have prevailed in establishing current policies and practices of unnecessary program duplication that continue to have a segregative effect as to which the State has not established sound educational justification. Remedies will be required.
In other words, the State formerly operated a de jure segregated higher education system. The constitution imposes a duty on the state to dismantle that system. The state's current practice of creating and expanding new programs at historically white institutions, which duplicate already existing programs at HBCUs that are right down the road, has the effect of keeping Maryland's colleges and universities segregated. By doing so, it is violating its constitutional duty to disestablish segregation.
The court did not issue a specific remedy, but directed the parties to enter into mediation and come up with a plan to current the system's deficiencies.
The Young Conservatives of Texas appear to be displeased with the outcome of Fisher v. Texas, which upheld the use of race in higher education admissions (although it indicated it wanted a more rigorous narrowly tailored prong review). The Young Conservatives, in a repeat performance of the 2011 diversity bake sale at Berkeley, CA, held a bake sale in which whites would be charged the highest price for brownies at $2, followed by Asians at $1.50, Latinos at $1, Blacks at 75 cents and Native Americans at 25 cents. Women of all races and ethnicities received an additional price break of .25 cents.
A few points of note. First, the struggling economy has held the cost of affirmative action in check. These prices are the exact same ones offered at Berkeley in 2011. I only wish the same were true for potato chips and fountain sodas.
Second, the price differentials are interesting. Conservatives seem to think affirmative action costs whites more than any one else and that everyone but white males benefits from affirmative action. I am skeptical of the notion that it "costs" any racial group anything. Regardless, the young conservatives seem to miss the fact that there are few, if any, higher education diversity programs that treat Asians' ethnicity as a plus factor. In other words, even if the young conservatives general premise is true, I am afraid they are selling brownies too cheaply to Asians. Asians should make a run on the brownies and hold out until the next sale, when surely the average price of brownies will increase, along with a sharp increase on the price for Asians.
Finally, I think they really missed the boat on gender. State universities have more often, in recent years, tilted the scales in favor of men, since women tend to outperform men in high school, particularly in terms of GPA. Remember Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234 (11th Cir. 2001), where the University was pressed to give up its affirmative action for white males in the state. While formal boosts for white males have waned for obvious reasons, my understanding is that some universities still employee certain procedures that discount high school GPAs so as to help enroll a slightly higher number of white males and prevent women from overrunning the campus. So it seems men should be getting the 25 cent discount, not women. Then again, maybe the young heterosexual male conservatives who got into the University of Texas support affirmative action for women. The problem is that, given the number of women at flagship universities, the Young Conservatives may go bankrupt unless they are keeping a very close eye on their costs.
Wednesday, October 2, 2013
Last week, I posted on the release of Diane Ravitch's new book, Reign of Error: The Hoax of the Privatization Movement and the Danger to America's Public Schools. I am eagerly awaiting its arrival and will post a review once I read it. In the meantime, she offered us a fuller taste Friday in an interview with NPR. The interview indicates a no-holds-barred attack on charters, vouchers, and other reforms of the past decade, which she, of course, signed onto during the Bush administration, but now thinks better of. Speaking of school choice and charters, she threw several hard blows:
When people pay taxes for schools, they don't think they're paying off investors. They think they're paying for smaller class sizes and better teachers. . . . [Charters] have become part of the movement to turn education into a consumer product rather than a social and a public responsibility....What I mean is that you go shopping for a school. I don't believe in school choice. I believe that every neighborhood should have a good public school. And if the parents don't want the good local public school and they want to send their child to a private school, they should do so — but they should pay for it.
After this stinging critique, she emphasized that our schools are not in some new crisis. Rather, they are performing better than ever before. With that said, we do have significant pockets of dropouts and low performance. But these results are not a product of our schools somehow having sunk to new lows in terms of the education they offer. She cites the problem as the continuing presence of concentrated poverty. "Where there are low test scores, where there are higher dropout rates than the national average, is where there is concentrated poverty."
Much to my chagrin, she does not, however, seem to propose policies to deconcentrate poverty. Maybe she considers them unrealistic. Instead, she prescribes smaller classes, pre-k, and arts programs. I would agree that those are important programs that can provide significant help, particularly pre-k. I just hope she is not giving up on remedying the root cause of the problem.