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.
Monday, September 30, 2013
A New Civil Rights Agenda for American Education: Creating Opportunity in a Stratified Multiracial Nation
The American Educational Research Association is hosting its tenth annual Brown lecture in educational research on October 24th. Gary Orfield is this year's speaker. His lecture is titled A New Civil Rights Agenda for American Education: Creating Opportunity in a Stratified Multiracial Nation. More details here.
Over the summer, scholars and advocates poured over the question of whether and how much the Court's opinion Fisher v. Texas changed the legality of affirmative action. According to the Departments of Education and Justice, not much has changed. In a "Dear Colleague" letter released Friday, they wrote:
On June 24, 2013, the U.S. Supreme Court announced its ruling in Fisher v. University of Texas at Austin. The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs. The educational benefits of diversity, long recognized by the Court and affirmed in research and practice, include cross-racial understanding and dialogue, the reduction of racial isolation, and the breaking down of racial stereotypes.
The Departments of Education and Justice strongly support diversity in higher education. Racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation. The future workforce of America must be able to transcend the boundaries of race, language, and culture as our economy becomes more globally interconnected.
This statement to be more than just rhetoric supporting theoretical diversity. The letter goes on to say that its pre-Fisher guidance on voluntary desegregation in K-12 and diversity in higher education remain in effect. Most important, many read Fisher to increase the burden on universities and colleges to justify their affirmative action programs under the narrowly tailored prong of strict scrutiny, but in a "Question and Answer" document that accompanied the letter, the Departments said Fisher did not even change the narrowly tailored prong. Rather, Fisher just emphasized what the law already was.
Kudos to the Departments for taking a stand on these key issues. This is something they had been reluctant and slow to do during Obama's first term. They waited for over three years before retracting the Bush administration's misleading and inaccurate guidance on Parents Involved in Community Schools v. Seattle's holding regarding voluntary integration. Now, they have positively acted in a matter of just months on Fisher. This should go a long way toward avoiding the uncertainty and fear among districts and universities that persisted following Parents Involved.
Friday, September 27, 2013
On November 8-9, 2013 in Hartford, CT, One Nation Indivisible is hosting a conference titled Where Integration Meets Innovation. Its focus will be on creating, sustaining, and improving dynamic and diverse public schools. More information on the conference is available here.
Thursday, September 26, 2013
Early this summer, I posted on the rising tensions in Missouri, where a statute authorized the transfer of students out of failing schools and districts to surrounding districts. In other words, the state had authorized the crucial interdistrict transfers or reassignments that the Supreme Court had long ago forbade federal courts from ordering in Milliken v. Bradley. As advocates and researchers have lamented ever since, interdistrict reassignments are the only hope of integration in most metropolitan areas.
After the enactment of the Missouri statute, thousands of students in St. Louis and Kansas City have availed themselves of this opportunity. The problem was that the surrounding districts claimed they could not accommodate them and the districts loosing them claimed they could not afford the financial hit because the students' per pupil expenditures would leave with them.
To the surprise of many, the surrounding districts were able to absorb these students and work out the logistics of enrolling them in a very short time period. The financial fears of the districts from which these students departed, however, are coming true. Edweek reports that some districts are on the edge of bankruptcy. Normandy school district, for instance, has an operating budget of $49 million, but will loose $14 million under the statute's funding shifts. The hope is that the state will come up with a fix for these districts. These districts were already unaccredited, which is the basis for the transfers, and have little hope of reaccreditation in the context of bankruptcy.
I would grade this statute as a good job half-way done. Interdistrict transfers are a great solution to the ills of school segregation. For that reason, I have consistently argued that Congress must similarly use its Title I funds to incentivize integrative transfers, but I also point out that Congress must include hold-harmless provisions for the schools left behind. Otherwise, Congress would be helping some students at the expense of others. Moreover, hold-harmless provisions theoretically free up resources for the original schools because they now have fewer students. This could present the opportunity for them to take steps to improvement rather than just treading water. Let's hope Missouri can come up with the money and sense to achieve this end. For more on using Title I to facilitate integration and improve schools, see here.
Wednesday, September 25, 2013
Monday DOJ filed a motion to amend its complaint in the ongoing saga over Louisiana's voucher program. Some interpret this as a softening of DOJ's position from an attempt to block the voucher program to a simple attempt to monitor and verify that the program is operating in compliance with desegregation orders. In addition, if this is a position shift, DOJ indicates it is only in response to Louisiana's new-found willingness to comply with information requests and be otherwise cooperative. These two events suggests a deescalation that will allow the parties and the courts to address the merits in the case and remove it from the daily news feed. Governor Jindal, however, is still displeased, calling DOJ's recent actions and statements a "PR stunt" and "disingenuous." I wonder whether it is Jindal who is enjoying the politics and media coverage of this dispute. Maybe, he doesn't want this case to fade into the legal process and an analysis of the merits. Regardless, this finally seems to be where this case is heading.
Tuesday, September 24, 2013
The UNC Center for Civil Rights has launched a multi-year Inclusion Project Project, "which is dedicated to understanding, documenting, and addressing the persistent and related impacts of the legacy of residential segregation." It will analyze the effects of residential segregation on public education, municipal underbounding, and environmental racism. The Center's first report, The State of Exclusion, is now available. In addition to housing opportunity and environmental hazard exposure, the report offers a sophisticated empirical analysis of each of North Carolina's communities and shows the disparities in access to racially integrated schools, middle income schools and high performing schools.