Monday, January 4, 2016
The New York Times took up the call for integration in New York City after the Civil Rights Project released a report in 2014 finding that New York's schools were among the most segregated in the nation. Since then, the city has passed legislation to monitor segregation in its schools and outline steps to address it. The City also now has access to grant funds from the state, which can be used to facilitate integration. Moving in that direction, the chancellor of the school system, Carmen Fariña, recent authorized seven city schools to establish admissions policies that would foster more diverse student bodies. While the City is owed a lot of credit for acknowledging the problem and responding to it in some way, its steps thus far are just drops in a large bucket of segregation. The next step is to fundamentally change the way students are assigned to schools in the city. Two members of the City Council are proposing just that, calling for controlled choice. Controlled choice would still allow families the opportunity to play a large role in determining where their children attend schools, but student demographics would also play a large roll. As a result, schools formerly closed off to some families would now be open and limits would be placed on schools becoming too isolated by any single demographic factor. Whether they can muster the political support to enact such a policy remains to be seen, yet two years ago, I never imagined the City would even be having the conversation.
For more on the proposal, see here.
Thursday, December 17, 2015
Yesterday, Rebecca Klein published an excellent story exploring a bilingual program in Oregon that appears to be improving outcomes in all respects for all students involved. She writes:
Heritage Elementary School isn't a fancy private school, or even a public school nestled in an affluent suburb where parents pay high property taxes to give their kids a good education. It's part of the Woodburn School District, which has an expansive dual-language program although the vast majority of students qualify for free or reduced-price lunch.
Many students enter Woodburn schools without knowing any English, but can switch seamlessly between two languages by the time they leave.
And these students are not just bilingual. Woodburn students are also more likely to graduate from high school than students from districts with similar populations and levels of poverty, according to Chuck Ransom, the district's superintendent. Most importantly, they're more likely to continue on to higher education, which leads to better job opportunities and, ultimately, a better quality of life.
. . . .
But in 2014, Woodburn School District had the highest on-time high school graduation rate for Latino students in the state, and the second-highest graduation rate for students who weren't native English speakers. Its overall graduation rate fell within the top 10 percent of Oregon school districts.
In the decade since the district enacted its dual-language program, the gap in graduation rates between Woodburn's English language learners -- or ELLs -- and native English speakers has closed. Experts say that if implemented properly, dual language programs not only encourage students to appreciate other cultures as well as their own, but can even help desegregate districts where minority students and their white counterparts attend separate and unequal schools.
Just before the recession, I had a growing sense that programs like these were going to take off, as parental demand was increasing. Unfortunately, the recession promoted an isolationist mentality where communities tried to protect whatever they had and did not dare try something new--save the new curriculum and teacher evaluation policies the federal government was forcing on them. Klein's story suggests we may be returning to more sane times. Even in Columbia, South Carolina--not typically a leader on these issues--the district conducted a survey this past fall to test parental interest in starting a bilingual school in the near future. The district has relatively significant segregation challenges and this would be a significant step to begin addressing some of it.
Wednesday, December 16, 2015
Newark Settles Civil Rights Complaint Alleging School Closures Were Discriminatory, Reveals Lessons for Other Cases
The Advancement Project and Newark's Parents Unified for Local School Education filed a complaint with the the U.S. Department of Education challenging Newark's school closures. They alleged that the closures disproportionately affected minorities and students with disabilities and violated Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act. Newark had closed several traditional public schools during the recession, consolidating them with other traditional public schools and/or replacing them with charters. OCR found that the closures did, in fact, disproportionately affect minorities and students with disabilities and did not produce the benefits that the district claimed was the basis for the closures in the first instance. Last week, Newark agreed to take remedial action. The problem, however, is that school closures cannot reasonably be reversed and Newark still got what it wanted. The remedial steps Newark now promises are relatively mild:
- Identify whether any transferring students have suffered any academic deficiencies and take steps to remedy them.
- Determine whether transportation issues affected the ability of transferring students to participate in extracurricular activities.
- Investigate where disabled transferring students were provided with appropriate special education and related aids and services in the receiving school; and if not, whether compensatory or remedial services are necessary.
Nonetheless, advocates saw this as a victory, as they should. A similar and more aggressive and disproportionate set of closures occurred in D.C. in recent years, but the challenge to them failed. As my earlier blog post noted:
In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
There, advocates filed suit in federal district court seeking an injunction, but the court denied their injunction and dismissed the case. Thus, by rough comparison, the Newark decision is enormous.
One analytical difference also bears emphasis. OCR evaluated the efficacy of the closures after the fact, which allowed it to find that the justifications for the closures had proven flawed. In D.C., plaintiffs sought to block the closures earlier and argued, based on social science and expert opinion, that the closures would harm students and not produce the benefits the district claimed to seek. The district court, however, ignored these prospective claims and assumed the District's goals to be valid. I have not seen any subsequent research confirming or rejecting plaintiffs factual allegations, but to the extent their factual allegations were not novel, it raises the question of whether courts should take social science and expert opinions more seriously in similar cases. Newark's experience suggests they should.
Thursday, December 10, 2015
I cannot recall any week, much less a single day, in education that carried two events as momentous as yesterday. The Senate passed the rewrite of the Elementary and Secondary Education Act (ESEA) by a vote of 85-12, which sends the bill to the President's desk, who will unquestionably sign it. At long last, No Child Left Behind will be no more. I will have far more to say on the substance of the bill in the coming weeks and months ahead. For now it suffices to say that if NCLB and the Secretary's waivers federalized education, this new bill has defederalized it. That is not to say that change was not in order. It is to say that this change significantly changes the federal role in education.
While Congress was signing off on the ESEA, the Supreme Court was arguing over the future of affirmative action in education, and I do mean the Supreme Court was arguing, not just the litigants. Apparently, the Chief Justice felt compelled to cut Justice Sotomayor's questioning off twice because she was not permitting Fisher's attorney to finish his response to questions. Given how Fisher I turned out, I will not attempt to read the tea leaves. I will only say that I thought the demise of affirmative action was greatly exaggerated in advance of that case. I have faith the same is true this time. That does not mean, however, the result in the case will be satisfactory. I doubt that even more. I would expect a compromise as tortured as the one we see in the ESEA rewrite. Read the oral argument transcripts here.
Fifth Circuit Rejects Claims That District Disproportionately Funneled At-Risk Students to Minority Schools
The Fifth Circuit recently decided Lewis v. Ascension Parish Sch. Bd., the contentious school rezoning case that we discussed on the blog last year when it was headed to trial. To recap, plaintiff Darrin Lewis challenged a Louisiana school board's rezoning plan (called Option 2f) that assigned a disproportionate number of at-risk students to Lewis' children's school, East Ascension High School, the only majority nonwhite and majority at-risk high school in the district. (East Ascension was projected to have 57% at-risk enrollment, more than twice the at-risk enrollment at nearby majority-white schools.) Lewis argued that the board's feeder plan deprived Ascension students of educational opportunities afforded to non-minority students. In its November decision, the Fifth Circuit upheld the district court's judgment for the school board, which concluded that the plan was facially race neutral because Lewis did not make a threshold showing that the redistricting plan treated similarly situated students of different races differently and failed to establish that the plan had a discriminatory effect. The Fifth Circuit focused on Lewis' two primary arguments: that "Option 2f was subject to strict scrutiny (1) because it contains explicit racial classifications, and, alternatively, (2) because its funneling feature was motivated by racial animus and had a disproportionately adverse impact on nonwhite students in the East Ascension feeder zone."
Resolving the first argument, the Fifth Circuit adopted the reasoning of the Third and Sixth Circuits that school zoning plans that assigns students based on their home addresses "is facially race neutral, and the rezoning body’s consideration of demographic data in drawing the relevant geographic boundaries does not amount to making an express classification." In doing so, the Fifth Circuit distinguished Ascension Parish's plan from that would be subject to strict scrutiny, such as the one in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), because in Parents Involved, in which officials explicitly considered race and the overall racial makeup of the school when making student assignments. TAlthough the Ascension district considered racial demographics and desired to maintain unitary status through racial balancing, the court concluded that the district's decision was not explicitly based on race and thus was subject to rational basis rather than strict scrutiny review. The circuit court also rejected Lewis' argument that the redistricting plan’s feeder plan was subject to strict scrutiny review because it had both a discriminatory purpose and a discriminatory effect. The court found that Lewis' evidence that the percentage of at-risk students in the East Ascension feeder zone increased after Option 2f was insufficient to show either discriminatory purpose or effect. Lewis v. Ascension Parish Sch. Bd., No. 15-30030 (5th Cir. Nov. 17, 2015) is here.
Tuesday, December 8, 2015
For those who missed the National Coalition on School Diversity's recent conference, "21st Century School Integration: Building the Movement for Diversity, Equity, and Inclusion," the Poverty and Race Research Action Council has published a set of articles and essays that further detail the major research and practical experiences revealed at the conference. They include
- Making School Integration Work in Integrated Schools
- Inviting NYC Students onto the Scene of School Integration
- Next Generation Schools in Maryland
- Embrace Race
- City Garden Montessori School in St. Louis: A Story of Education Reform, Gentrification, and Housing Advocacy
- Neighborhood Schools-An Etymology
Read the articles here.
Monday, December 7, 2015
Thursday, December 3, 2015
Can Plaintiffs' Educational Adequacy Challenge to the Growing Hypersegregation in Minneapolis Reinvigorate a National Movement?
Plaintiffs in Minneapolis and Saint Paul have filed a lawsuit against the state, alleging that the racial and poverty segregation in the metropolitan area violates the state constitution's education clause, equal protection clause, and due process clause, as well as the Minnesota Human Rights Act. The state supreme court has previously recognized education as a fundamental rights. On that basis, plaintiffs challenged segregation in Minneapolis in 1995. The Supreme Court never reached the merits of whether the segregation violated the state constitution, but held that plaintiffs case could move forward to trial. Plaintiffs presented a sufficiently compelling case that the state settled the case and agreed to an integration remedy.
In recent years, however, segregation in the metropolitan area has dramatically increased, with little or no effort by the state to abate it. To the contrary, charter school and other attendance policies are making matters worse. While children of color and low income students are respectively only 29 and 38 percent of the state's overall school population, "the public schools of the City of Minneapolis are approximately 66 percent children of color and 64 percent free or reduced lunch; and the public schools of the City of Saint Paul are 78 percent children of color and 72 percent free or reduced lunch." The adjoining surrounding school districts, however, are "overwhelmingly white" and predominantly middle income. Moreover, within the city school districts themselves, the state has created predominantly white and middle income schools alongside hyper-segregated poor and minority schools. Plaintiffs allege that "[t]he segregation and hyper-segregation [in these schools] have been the result of boundary decisions by the Minneapolis and Saint Paul School Districts, made with the knowledge and consent of defendants, which have had both the purpose and effect of creating and increasing segregation of the Minneapolis and Saint Paul public schools by race and socioeconomic status."
Charter schools, in particular, seem to have been the means to exacerbate segregation:
The Twin Cities metropolitan area now contains 131 charter schools, over 80 percent of which are segregated by race, socioeconomic status, or both. [Nearly seventy charter schools] are either more than 95 percent students of color or more than 80 percent white students. Nearly a third (42 of 131) of charters in the Twin Cities are more than 95
percent students of color. In addition, there is a growing pattern in the suburbs of predominantly white charter schools locating near more racially diverse traditional schools. In 2013, 67 percent of suburban charters (32 out of 48 schools) were predominantly white (defined as more than 80 percent white students) compared to just 44 percent of traditional schools in the suburbs. More than half of predominantly white suburban charters were located in the attendance areas of traditional schools that were significantly more racially diverse. This figure has nearly tripled in the previous five years.
This case is, of course, Minnesota's version of the Sheff v. O'Neill litigation in Connecticut, which produced the first and only state supreme court decision holding that racial segregation--even if de facto--denied students equal educational opportunity under the state constitution. The remedies in Sheff have garnered significant attention over the past year or so, with the New York Times criticizing the state of New York for its failure to replicate Connecticut's common sense remedies to address New York's hyper-segregation. Were Minnesota's supreme to eventually become the second state supreme court to formally validate the theory in Sheff it would go a long way to speeding along a movement two decades in the making. It is also worth noting that charter schools were not around in any real sense when Sheff was decided, but magnet schools were. Those consciously pro-integration magnet schools of choice have been the central means of integrating schools in Connecticut, whereas Minnesota's integration-agnostic charters of choice have become a major tool of segregation.
Get the full complaint here: Download Minnesota Complaint
Wednesday, December 2, 2015
Affirmative action will return to the Supreme Court next. It will host oral arguments in Fisher v. Texas on Wednesday. The Century foundation is hosting a debate on the case, with distinguished guests on both sides of the issues, and a preview of likely arguments on Monday. More here. Lyle Denniston also put up a preview of the issues and arguments this morning on Scotusblog. At this point, Texas has two wins before the Fifth Circuit and is looking for its first substantive win before the Supreme Court. This time, the plaintiff seems to have shifted her argument. As Denniston writes,
In this second time around, Fisher has put forward both a quite modest claim, and a more ambitious — even momentous — claim.
The simpler challenge is that the Fifth Circuit disobeyed the Supreme Court’s 2013 order to reconsider the Texas policy using a rigorous “strict scrutiny” approach. The majority in the two-to-one ruling, the new petition argued, gave the university a pass, allowing it to control the defense of the admissions program on the university’s terms, without the majority boring deeply into the actual use of race.
The fact that the Court has granted review again, with no change in the policy since its last review, hints at the possibility that the Court might be content to clarify further the guidance it gave last time, and let the Fifth Circuit have another go at it.
Further complicating the case is the fact that, as last time, only eight justices will hear the case and a 4-4 decision would mean affirming the Fifth Circuit.
Monday, November 30, 2015
The Office for Civil Rights has opened an investigation of Duval County Public Schools in Florida. The investigation will focus on equal access to quality educational opportunities. Of particular concern appears to be unequal access to quality teachers. Last fall, OCR issued a Dear Colleague letter, emphasizing that it would begin to take equal access to resources seriously. OCR stated:
Many States, school districts, and schools across the Nation have faced shrinking budgets that have made it increasingly difficult to provide the resources necessary to ensure a quality education for every student. Chronic and widespread racial disparities in access to rigorous courses, academic programs, and extracurricular activities; stable workforces of effective teachers, leaders, and support staff; safe and appropriate school buildings and facilities; and modern technology and high-quality instructional materials further hinder the education of students of color today.
Consistent with its work of the past two years, OCR has issued progressive policy statements and followed through in enforcing them, although it is, of course, far too earlier to know what OCR will find in Duval County. It is also worth noting, however, that Duval County was involved in one of the last major desegregation cases in the 11th Circuit. See N.A.A.C.P., Jacksonville Branch v. Duval Cty. Sch., 273 F.3d 960 (11th Cir. 2001). In a 2-1 split decision, the Eleventh Circuit declared Duval County unitary, finding that the continuing racial isolation in the district was the result of white flight and voluntary residential segregation. Judge Rosemary Barkett wrote in her dissent:
Tuesday, November 24, 2015
Yesterday, the University of South Carolina announced that it will establish a Center for Civil Rights History and Research to chronicle the contributions of the Palmetto State to the American civil rights movement. It will be the first single entity dedicated to telling South Carolina’s civil rights story. Congressman James Clyburn, the state’s first African-American member of Congress since Reconstruction and the assistant House Democratic leader, also announced that he will donate his congressional papers to the new center. For education scholars, the center will be particularly important, as South Carolina holds an out-sized role in the history of desegregation. Most obviously, Briggs v. Elliot was the deep-South companion case to Brown v. Board. Clarendon County, where Briggs arose, still carries this history. It has been the locus of the state's school funding litigation for the past two decades.
As just a tease of what is to come from the center, I offer this picture of the original complaint in Briggs v. Elliot. Having spent almost the entirety of my scholarly career on a computer and now being able to freely access historical materials in pdf. from the convenience of my office, seeing this complaint and the handwritten signatures on it was stirring. Unfortunately, my picture can do no more than offer you easy electronic access, but I invite you all to visit the Center in the future as its work unfolds. More here.
Friday, November 13, 2015
The Education Trust's new report, Black Minds Matter, argues that "though it is abundantly clear that Black children can achieve at the highest levels, most of the data paint a dire portrait of an education system — preschool through college — that systematically squanders Black talent." It frames that argument around basic data points. Just to list a few:
- African American children are "less like to have access to high quality preschool and early learning opportunities. The result? Achievement gaps begin early, even before children reach school age."
- "[I]nstead of organizing our K-12 school systems to ameliorate [the fact that African American children often start kindergarten behind], these children get less in school too." They attend the most challenging educational environments.
- African Americans attend schools that are predominantly poor and predominantly minority.
- African Americans are twice as likely to feel unsafe at school and three times as likely to be suspended.
- African Americans are far less likely to be enrolled in rigorous courses.
The report then offers a series of recommendations.
- Offering and ensuring academic relevance, rigor, and supports
- Ensuring equitable access to effective educators
- Extending learning time
- Improving school climate and fixing school discipline
- Providing a broad range of health, wellness, and socio-emotional supports.
Thursday, November 12, 2015
Three weeks ago, I posted on a National Center for Education Statistics study that found that, all other things being equal, African-American students performed lower in predominantly African-American schools than in other schools, but white students did not score lower in predominantly African American schools. I offered a number of potential explanations, but omitted one obvious factor: white students experience the benefits of diversity in a predominantly African American schools, whereas most African Americans would not (given that their classrooms would tend to be one race in a predominantly African American school). My oversight is probably due to my own bias. When speaking of predominantly poor and minority schools, we/I tend to speak of the harms of attending those schools. When we speak of the benefits of attending a diverse school, we/I tend to speak of schools with substantial, if not majority, middle income or white populations. We often forget that a minority group, regardless of their race, may benefit by being the minority.
An NPR story that commented on the NCES study also referenced the work of Katherine Phillips at Columbia Business School. Phillips does an excellent job of actually explaining why diversity matters, particularly to whites, who are so rarely in the minority. She does not specifically pitch it that way, but I find that work like hers and Scott Page's is absolutely necessary to helping my students understand the benefits of diversity as a reality rather than just rhetoric. In her research, Professor Phillips has found that:
corporations with better gender and racial representation make more money and are more innovative. And many higher education groups have collected large amounts of evidence on the educational benefits of diversity in support of affirmative action policies.
In one set of studies, Phillips gave small groups of three people a murder mystery to solve. Some of the groups were all white and others had a nonwhite member. The diverse groups were significantly more likely to find the right answer.
"What the work tells us is that when you have people from the social majority in a diverse environment they work harder and focus on the task more," Phillips explains. "They think about problems more broadly."
And, she adds, they are more likely to back up their own opinions and consider alternative points of view, rather than assuming that everyone thinks as they do.
Phillips believes that her research, done on business students, could generalize to other classroom settings. Being in a homogeneous group may feel more pleasant, she says, but diverse groups keep people on their toes.
This is potentially an important finding for schools, given the Common Core's emphasis on deep learning, critical thinking and citing evidence.
In an older Forbes op-ed, Phillips offered this longer explanation of her work:
I recently published research in Personality and Social Psychology Bulletin, with co-authors Katie Liljenquist of Brigham Young University’s Marriott School of Management and Margaret Neale of the Stanford Graduate School of Business, that found that members of a social majority are more likely to voice unique perspectives and critically review task-relevant information when there is more social diversity present than when there is not. Moreover, this is true even when the people who are “different” don’t express any unique perspectives themselves. Our research suggests that the mere presence of social diversity makes people with independent points of view more willing to voice those points of view, and others more willing to listen.
When anyone in a group has perspectives, opinions or information that vary from the consensus, our research suggests, the mere presence of social diversity will make them express, and others consider, those perspectives in a way that benefits the group.
In one of our studies, we compared homogeneous and diverse groups trying to solve a murder mystery. The diverse groups reported that they didn’t work together very effectively, and they were less confident about their decisions than the homogeneous groups, yet they consistently outperformed those homogeneous groups.
Moreover, the benefits of diversity were most pronounced when the persons who were different did not bring a unique perspective to the table, but instead agreed with one or more of the social majority members. The members of the social majority then turned their focus to the task at hand and were more motivated to deal with it because of the social diversity present. They wanted to reconcile and to understand why some outsider actually agreed. They essentially didn’t want to leave without figuring out this apparent incongruence.
Whether trying to solve murder mysteries, develop new products, enter new markets or overhaul work processes, employees in organizations work harder when diversity is present, and a little bit more hard work is exactly what we need in corporate America. So as you think about diversity and its effects in organizations during this tough economic time, recognize that the most robust practical value of diversity is that it challenges everyone in an organization. We are more thoughtful, and we recognize and utilize more of the information that we have at our disposal, when diversity is present. That is diversity’s true value.
Monday, October 26, 2015
Wednesday, October 21, 2015
Yesterday, Bill Garfinkel, in response to my post on a new segregation study and my reference to ability grouping raised the question of whether we hurt our strongest students and society overall by not offering some form of ability group that offers them the most challenging work they can do. And if so, how do can we deal with this issue in a way that is fair to all? His question is sufficiently important and complicated that it warrants a full explanation.
At the highest level of abstraction, ability grouping is not per se bad or good. It comes in many different forms, good and bad. Thus, the issue may be more one of implementation and form than ability grouping versus non-ability grouping. As to form, ability group can start at various different stages in school. Some elementary schools begin informally grouping students within classrooms and labeling them as rabbits, turtles, etc. as early as kindergarten. Grouping students, even if only within classrooms, is problematic at this very early stages, for reasons further suggested below.
Tuesday, October 20, 2015
A recent study by the National Center for Education Statistics at the U.S. Department of Education reached some new conclusions regarding the achievement gap between black and white students. First, it found that African-American students performed lower in predominantly African-American schools than in other schools. Most prior research attributes this lower performance to the concentration of poverty in those schools. The current study, however, found lower African American achievement even after controlling for poverty and other variables. Second, white students, in contrast, did not score lower in predominantly African American schools than in other schools. Third, because African American students' achievement was lower in predominantly African American schools and whites achievement remained steady there, the black-white achievement gap was larger in predominantly black schools and smaller in predominantly white schools.
Putting these finding together produces a pretty remarkable principle: attending predominantly African American schools hurt African Americans' achievement, but not Whites'. That is a remarkable conclusion, which will surely be subject to debate, critique, and further analysis. But if it is correct, it flies in the face of the conventional wisdom of many white families. The study's findings would suggest that white flight from integrated or predominantly minority schools is not about achieving better academic outcomes for white students, but about racial fears. By the same token, in gentrifying neighbors, white integration into predominantly African American schools is not the risky proposition many families might believe it to be.
Monday, October 19, 2015
Christopher Suarez's article, Democratic School Desegregation: Lessons from Election Law, 119 Penn St. L. Rev. 747 (2015), is now available on westlaw. His abstract offers this summary:
Despite their joint relevance to democracy, no article to date has attempted to analyze election law alongside education law. This Article examines the relationship between the doctrinal threads of these bodies of law. From this study, this Article concludes that, while election law is imbued with democratic principles to guide courts and policymakers -- such as the one-person one-vote principle -- education law is not guided by any such democratic principles. Additionally, while electoral boundaries are viewed as malleable under federal law, school district boundaries are not. In light of these doctrinal differences, and in light of the importance of education to democracy, this Article advocates a policy of democratic school desegregation based on a principle focused on reducing socioeconomic isolation in schools. This democratic principle, referred to in this Article as the 60/40 principle, has the ultimate goal of ensuring that no child in the United States attends a school with a low-income student majority. Under this principle, school district boundaries are not sacrosanct and may be adjusted as a last resort to achieve the ideals of democratic school desegregation.
Tuesday, September 29, 2015
OCR Finds Princeton Does Not Discriminate Against Asian Americans and Offers a Preview of Race Neutral Analysis for Fisher II
The Office for Civil Rights at the Department of Education (OCR) completed its compliance review of Princeton's admission practice last week. Princeton, like Harvard and the University of North Carolina, has been accused of discriminating against Asian Americans in admissions. OCR applied strict scrutiny to the University's admissions practices and policies and concluded that "there was insufficient evidence to substantiate that the University violated Title VI or its implementing regulation with regard to the issue investigated."
Princeton easily met the compelling interest analysis by demonstrating its interest in achieving the educational benefits of diversity. As to narrow tailoring, OCR asked
whether the University considered workable race-neutral alternatives; whether the admissions
program provided for flexible and individualized review of applicants; whether it unduly
burdened students of any racial group; and whether the consideration of race was limited in time and subject to periodic review.
On the question of flexible individualized review, it rejected the notion that quotas were at play, finding there was
no evidence that the University tried to cap or otherwise limit the number of applicants who would be admitted from any race or national origin group. OCR also did not find that the University engaged in “patently unconstitutional” racial balancing, which the Supreme Court has defined as an effort “to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.” Instead, to the contrary, OCR found mostly steady increases in the percentages of Asian students who have been admitted in the past several years, rising from 14.2% of the University’s Class of 2007 to 21.9% of the University’s Class of 2012 and 25.4% (more than one-fourth) of the University’s Class of 2014. Such fluctuations are inconsistent with the existence of a quota, as the Supreme Court noted in Grutter.
It also found that race played a relatively small and flexible role in the process:
Here, OCR found that during the University’s admissions process, an applicant’s race and national origin – if he or she offered that information — may or may not be considered, depending upon whether that information provides further context about an individual applicant. For example, an admissions officer might consider how race may have figured in the context of where a person was born, where a person grew up, and where he or she had gone to school. Race and national origin may also be considered if an applicant brings up those subjects in his or her essay. However, OCR found no evidence of the University giving an automatic “plus” for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic “minus” for belonging to a particular race or national origin. OCR also found no evidence of the University using a fixed formula to weigh an applicant’s race or national origin.
Post-Fisher v. Texas, the potentially more difficult analysis for universities is the race neutral alternative analysis. If interpreted strictly, Fisher's statement that a university should demonstrate that its consideration of race is "necessary" could be fatal to many admissions plans. If interpreted consistent with Grutter, the term means something more flexible than absolute necessity.
OCR's letter did a nice job of averting the significance of this definition problem, which scholars have been wrangling over. OCR did so by referencing the Court's "necessary" quote in a footnote, but refusing to allow the meaning of the phrase to become the analysis itself. Instead, it rephrased the question as being one of "sufficiency." It asked "whether race-neutral alternatives were sufficient to achieve its diversity goals, of which race was a single though important element." It then alternatively phrased the question as whether race neutral alternatives were "not sufficient to achieve the educational benefits of diversity." Sufficiency captures the notion of flexibility far more clearly than necessity would, and that flexibility, of course, was clearly forwarded in Grutter. Drawing on Grutter's approach to race neutral alternatives, OCR concluded that "there were no race-neutral alternatives that would have worked about as well."
In reaching that conclusion, OCR interestingly focused on the race neutral alternatives that the University currently uses. Often, the focus elsewhere is on those hypothetical processes the university could or should use instead of race. Here, OCR makes a compelling argument that the University is already using these alternatives and race is just a tipping factor on top of those alternatives in certain circumstances, although without those tipping it would not achieve its goal. In other words, the fact that the University is using race-neutral alternatives substantiates the fact that it has considered alternatives and exhausted their efficacy. One would expect these ideas to show up in the government's briefs in Fisher II, where the analysis of the facially race neutral top ten percent plan will be key.
Get OCR's full letter here.
Tuesday, September 15, 2015
Controlled choice has been central to the ability of progressive school districts to voluntarily desegregate. The title of this post is in no way meant to disparage school choice in general, but rather to highlight a recent study by Julia Burdick-Will. Her study revealed an interesting pattern: "as a neighborhood’s income decreases, its range of educational experiences greatly expands." In other words, the assumption that students in disadvantaged neighborhoods are trapped in their failing local school is not necessarily true. Rather, children in wealthier neighborhoods are the ones most likely to stay in their neighborhood schools. No one, of course, would claim these students are trapped. Rebecca Klien points out that going to a strong neighborhood school is the privilege, not choice. Wealthier students have this privilege. Low-income students do not.
Tuesday, September 1, 2015
In the spring of 2008, shortly after it became pretty clear that Barrack Obama would secure the democratic nomination for president, the then-dean of Howard Law School, Kurt Schmoke, convened a lunch time town hall at the school to discuss the upcoming election and the potential history it would make. I posed the question of whether it was possible that Obama's election might spell a step backward on several of the issues that we held most dear. The response suggested that my question bordered on blasphemy, but fortunately I was surrounded by lawyers and bright students who politely moved on to the euphoria of the times.
I fully supported his presidency and served in the administration's transition team after the election, but I had a sneaking suspicion that we were too optimistic. What we needed was a good dose of Derrick Bell-style skepticism. He was not there, so I played the inadequate fill-in. My concern was not that Obama would lack the conscience of our convictions but that he would face political and cultural opposition that a white candidate pushing those same convictions would not.