Wednesday, August 20, 2014
Education Law Center Calls on New Jersey to Assess Effect of Charters on Segregation and School Funding
The following is a repost of an Eduction Law Center press release:
In comments filed today, Education Law Center is calling on the NJ Department of Education (DOE) to issue rules requiring the State Education Commissioner to assess the impact of NJ charter schools on both student segregation and local school district budgets.
"The New Jersey Supreme Court has made clear the Commissioner's obligation to assess whether a proposed or operating charter school is causing student segregation or depriving district schools of necessary funding, both of which would violate the right of district students to a thorough and efficient education under our State Constitution, " said David Sciarra, ELC Executive Director.
"The State's failure to properly codify this obligation in the rules governing New Jersey's charter school program is a violation of constitutional law," Mr. Sciarra added.
In several rulings, most recently in December 2013, the NJ Supreme Court firmly established the responsibility of the State Commissioner to determine whether a proposed charter school would exacerbate racial segregation and/or deprive students in district-run schools of essential funding.
Erika Wilson's new article, Toward A Theory of Equitable Federated Regionalism in Public Education, 61 UCLA L. Rev. 1416 (2014), is now available on westlaw. It is sure to catch the attention in future scholars, hopefully policy makers as well. Her abstract offers this summary:
School quality and resources vary dramatically across school district boundary lines. Students who live mere miles apart have access to disparate educational opportunities based on which side of a school district boundary line their home is located. Owing in large part to metropolitan fragmentation, most school districts and the larger localities in which they are situated are segregated by race and class. Further, because of a strong ideological preference for localism in public education, local government law structures in most states do not require or even encourage collaboration between school districts in order to address disparities between them. As a result, the combination of metropolitan fragmentation and localism in public education leads to the exclusion of poor and minority students from access to high-quality school districts, which are largely clustered in more affluent and predominately white localities.
Monday, August 11, 2014
Phil Tegeler, Executive Director of the Poverty and Race Research Action Council, has a new article set to go to print in the Michigan Journal of Law Reform titled The "Compelling Interest" in School Diversity: Rebuilding the Case for an Affirmative Government Role. He convincingly takes the Department of Education, and the Obama Administration overall, to task for its failure to promote integration. The Administration has made supportive statements at times, but when it comes to money and affirmative support, it has done nothing, turning its support to charter schools and other "innovations." The introduction of the article is as follows:
The strong endorsement of the "compelling government interest" in school integration by five members of the Supreme Court in Parents Involved in Community Schools stands in surprising contrast to the Obama Administrations's tepid support for affirmative measures to expand school diversity initiatives. Although the Department of Education formally endorsed the Supreme Court plurality's position on school integration in a 2011 guidance to local districts, its funding programs have not followed suit. Since 2009, spending on magnet schools, the only Department of Education funding program that sponsors school integration, has declined relative to other departmental programs, while funding for charter schools, which are generally even more segregated than regular schools, has expanded.
Tuesday, July 22, 2014
Alderman Latasha Thomas, chairman of Chicago City Council's Education Committee, is calling for race to be considered in the admission process at Chicago's elite public high schools. The District was previously under a desegregation consent order, but since it was vacated in 2009, the admission process for the elite schools has been race blind. The result has been a significant increase in white enrollment and decrease in African American enrollment. Thomas makes an argument for reversing that trend that seems to fit squarely within the Supreme Court's narrow tailoring requirement:
Now that you’ve taken race out for four years and saw [the adverse impact], race can be one of the factors. Before, it was one of two factors. Now, race can be one of six or maybe seven factors you use, so it’s not weighted as heavily as it was before. Your legal consultants should be exploring that with the idea that, when you took race out, we were falling backwards. Now, we have justification.
The district's director of student enrollment committed to raise the issue internally and consult with the district's law firm regarding legally permissible options.
Monday, July 21, 2014
How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown
Preston Green, Bruce Baker, and Joseph Oluwole's new article, How the Kansas Courts Have Permitted and May Remedy Racial Funding Disparities in the Aftermath of Brown, is now available on westlaw at 53 Washburn L.J. 439 (2014). The introduction summarizes it as follows:
After the Brown v. Board of Education decision, black students have primarily used school desegregation and school finance litigation to attain equal educational opportunity. School desegregation litigation has focused primarily on breaking down the official barriers that prevented black students from attending public schools with white students. School finance litigation has sought “to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes.” This Article explains how the failure of the two legal strategies to address racial funding disparities in the aftermath of Brown enabled the Kansas legislature to create a school finance formula that disadvantaged the school districts affected by that famous decision. This Article also explains how Kansas's recent school finance litigation may provide insight as to how state education clauses might be used to enable students in high-black-concentration school districts to obtain equal educational opportunity.
Wednesday, July 16, 2014
In a Holistic Review of Holistic Admissions, Fifth Circuit Upholds University of Texas Admission Plan
For those who missed it, the 5th Circuit issued its opinion late yesterday in the remand from the Supreme Court in Fisher v. Texas. The Court of Appeals, by a 2-1 vote, upheld the admissions plan. The opinion is here. The University of Texas victory was unexpected by many close to the case. I personally thought the panel would still be predisposed toward the Texas plan, but there was a strong chance it would remand to the district court to further develop the facts to help bolster the narrow tailoring case. So my surprise was the Court of Appeals' willingness to defend the plan as narrowly tailored on the facts already before.
On my initial read of the opinion, I was most struck by the court's framing of the admissions plan. It analyzed the admissions plan in full context. This is something it had done in its previously decision, but it went even further this time and framed the facts in a way that offered a more definitive defense of the notion that the plan was narrowly tailored. First, it accounted for where diversity had been for several years prior to the current admissions plan to show that the Top Ten Percent Plan alone did not work nearly as well as race neutral advocates would have us believe. Second, it was insistent on analyzing the use of race not in the narrow context of the holistic admissions review process in which Texas used it, but in the broader admissions context. This allowed it to show how race has the potential to be a factor in only a small percentage of overall admissions program. Top Ten Percent Plan dominates the admissions process and the holistic review operates in the few remaining seats up for grabs. In that respect, the consideration of race is much narrower in Texas than it was in Grutter v. Bollinger.
Friday, June 27, 2014
In its June 26 newsletter update, the Poverty and Race Research Action Council offered the following in regard to the Department of Education consideration of diversity in competitive grant programs:
In 2010, the Department of Education approved a series of funding priorities that could be included as incentives or threshold requirements in Department competitive grant programs - including a priority for promoting racial and ethnic diversity in schools. However, since the priority was approved, it has not appeared in most competitive grant funding notices, with the exception of the charter school notices, where it has been a fairly weak incentive, as compared to program incentives to maximize the number of low income children. This week in the Federal Register, the Department has proposed a set of revised funding priorities, including a revision to the diversity priority that includes socioeconomic diversity (in addition to race/ethnicity). We welcome this development insofar as it signals that the Department will now begin utilizing the diversity priority in all of its K-12 grant programs. However, we are concerned that it could represent a retreat from the Department's stated commitment to racial diversity - and we will be watching how this plays out in the next round of funding notices. Economic diversity is related to and complementary to racial integration in schools, but the two goals are not interchangeable.
The Department of Education's Federal Register notice is here.
Wednesday, June 25, 2014
Howard Law Journal has published its symposium issue on Fisher v. Texas. The symposium includes an introduction by Aderson Bellegarde Francois, Acts of Meaning: Telling and Retelling the Narrative of Race-Conscious Affirmative Action and the following articles and essays:
Derek W. Black, FISHER V. TEXAS AND THE IRRELEVANCE OF FUNCTION IN RACE CASES
Gregory S. Parks and Matthew W. Hughey, OPPOSING AFFIRMATIVE ACTION:THE SOCIAL PSYCHOLOGY OF POLITICAL IDEOLOGY AND RACIAL ATTITUDES
Danielle Holley-Walker, DEFINING RACE-CONSCIOUS PROGRAMS IN THE FISHER ERA
Deborah N. Archer, COLLECTIVE OR INDIVIDUAL BENEFITS?: MEASURING THE EDUCATIONAL BENEFITS OF RACE-CONSCIOUS ADMISSIONS PROGRAMS
Aderson Bellegarde Franois, THE BRAND OF INFERIORITY: THE CIVIL RIGHTS ACT OF 1875, WHITE SUPREMACY, AND AFFIRMATIVE ACTION
The whole issue is available here.
In its newest issue, Howard Law Journal also published Affirmative Action Survives Again in the Supreme Court on a Legal Technicality: An Analysis of Fisher v. University of Texas at Austin, by John Brittain. The essay is a more detailed statement of his keynote address at the Wiley A. Branton/Howard Law Journal Symposium entitled Civil Rights at a Critical Juncture: Confronting Old Conflicts and New Challenges. Professor Brittain's essay is available here: Download HOW301
Tuesday, June 17, 2014
The Century Foundation and Lumina Foundation are releasing The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas today. The volume includes an introduction by Richard Kahlenberg and chapters Danielle Allen, John Brittain, Nancy Cantor, Anthony Carnevale, Dalton Conley, Arthur Coleman, Peter Englot, Matthew Gaertner, Sara Goldrick-Rab, Scott Greytak, Catharine Hill, Jessica Howell, Benjamin Landy, Richard McCormick, Nancy G. McDuff, Halley Potter, Alexandria Walton Radford, Stephen Rose, Richard Sander, Jeff Strohl, Teresa Taylor, and Marta Tienda.
[T]he authors tackle the critical questions: What is the future of affirmative action given the requirements of the Fisher court? What can be learned from the experiences of states that created race-neutral strategies in response to voter initiatives and other actions banning consideration of race at public universities? What does research by higher education scholars suggest are the most promising new strategies to promoting diversity in a manner that the courts will support? How do public policies need to change in order to tap into the talents of all students in a new legal and political environment?
The book proceeds in five parts: The Stakes; The Legal Challenge; State Experiences with Race-Neutral Strategies; Research on Promising Race Neutral Strategies; and Public Policy Proposals. You can read the book here, watch a webcast discussion of it here, read press coverage here, and get a summary of the key research from the Chronical of Higher Education here.
Friday, June 6, 2014
Halley Potter, research associate at The Century Foundation and David Tipson, director of New York Appleseed, published an interesting editorial in the New York Times this week calling for the elimination of gifted and talented programs in the New York City Schools. The editorial draws on a report published by Appleseed earlier this year: Segregation in NYC District Elementary Schools and What We Can Do About It: Addressing Internal Segregation and Harnessing the Educational Benefits of Diversity. They argue the gifted and talented program has a
long history of exacerbating socioeconomic and racial segregation within city schools. As of 2011, roughly 70 percent of all New York City public school students were black and Latino, but more than 70 percent of kindergartners in G&T programs were white or Asian. Successive attempts to fix the problems associated with G&T admissions have in many cases only increased disparities. These trends show no sign of reversing in newly released New York City Department of Education data, which confirm that wealthier community school districts continue to dominate G&T placements.
After discussing the harms of segregation, they call for the
New York City schools [to] take a schoolwide approach to gifted education, eliminating separate G&T tracks and incorporating identified students into mixed-ability classrooms. A number of New York City public schools, such asBELL Academy and Veritas Academy in Queens, already use the Schoolwide Enrichment Model, which Chancellor Carmen Fariña favors, to offer “gifted education for all” through academic enrichment tailored to each student’s strengths.
The link to the full article and the discussion board following it, see here. As you will see, it has generated an unusual amount of conversation.
Tuesday, May 27, 2014
Last month, OCR reached two significant settlement agreements. The first was with New Hampshire’s Manchester School District, School Administrative Unit #37. The settlement agreement was in response to tracking and unequal access to college and career preparatory courses for black and Latino students. The most stark disparities were in the district’s AP courses. "Despite the enrollment of 381 black students and 596 Latino students at the high schools, only 17 seats in AP classes went to black students and only nine seats in AP classes went to Latino students, out of the total of 434 seats in AP courses. At two of the three high schools, there were no Latino students enrolled in the AP courses." OCR found a number of structural barriers in the district's policies that lead to these disparities. The district agreed to several steps to address the disparities, the most notable of which were:
- Identify and implement strategies subject to OCR review and approval to increase student participation in its higher-level learning opportunities, particularly for underrepresented groups such as black, Latino and ELL students.
- Consider increasing the numbers and types of courses, adding more teachers qualified to teacher higher-level courses and revising selection criteria for enrollment in higher level learning opportunities if these are barriers to increased participation.
- Specifically assess the impact of assigning students to academic “levels” upon arrival at the high schools on their participation in higher-level learning opportunities, and consider eliminating the system of student assignment to levels or altering the current criteria or method of implementation.
- Specifically consider eliminating the GPA and class rank penalties associated with withdrawing from higher-level courses.
- Provide increased support for students enrolled in higher level learning opportunities through counseling, peer support groups and tutoring.
The other settlement agreement was with the Hazleton, Pa., Area School District. OCR found that English Language Learner (ELL) students in the district did not have access to equal educational opportunities and that the district was not adequately notifying their parents of information made available to other parents in English. More than 10 percent of Hazleton's students are ELLs, which would suggest a scale that should have allowed the district to operate a more robust program, but OCR found that the district was inappropriately excusing students from the English language development program, not providing the required instructional time for over 240 elementary school ELL students, not evaluating the effectiveness of its program, and not using an effective system to identify and communication with limited English proficient parents. The district agreed to take the following steps:
- Ensuring that students whose primary home language is not English will be promptly assessed for English language proficiency to determine eligibility for placement in an English language development program and that students will not be improperly exempted from assessment;
- Assessing students who were improperly exempted from language proficiency assessment to determine whether they may be eligible to receive English language development services;
- Conducting a comprehensive evaluation of the English language development program at each school level to determine its effectiveness and making modifications to address areas where the program is not meeting the district’s goals;
- Developing and implementing policies and procedures to ensure that LEP parents are notified, in a language they understand, of school activities that are called to the attention of other parents; and
- Providing training to appropriate staff on procedures for identifying language-minority parents and on policies and procedures for serving language minority parents.
Monday, May 26, 2014
Eric Cooper, President of the National Urban Alliance for Effective Education, offered this take on school diversity and workforce preparedness at Huffington Post. Given its interconnection with my recent essay at Ed Week, he agreed to cross-posting it here:
Students Who Encounter Diversity in School Are More Prepared for the Workforce
In May, we photograph high school students before the prom and marvel at these young adults, dressed in beautiful dresses and tuxes and posing against the green lawn and flowering trees of our yards. But what does the image we see through that lens tell us about education, racial progress and the march of history?
I had that thought this month as I watched my daughter and several of her friends being photographed at our house before the prom.
My wife and I listened to their banter. Like most high school seniors, they were comfortable, relaxed and talking excitedly about the prom and college in the fall. Yet in one very important respect, my daughter and her friends were atypical for high school students in many communities across this country. The young men and women being photographed were an unusually diverse group of black, white, Asian and Hispanic students.
Our daughter is lucky. She attends the Academy for Information, Technology & Engineering (AITE,) a regional magnet school in Stamford, Connecticut, that draws students from wealthy Greenwich to impoverished Bridgeport. The student body is as diverse as one finds on the streets of Broadway in nearby New York City. AITE students proudly identify themselves as black, white, Asian, Hispanic, mixed, gay, transgender, Native American, Muslim, Christian, Jewish, Hindu, atheist or agnostic.
This embrace of multiplicity carries through virtually every aspect of the school. Walk into the cafeteria and you will find students fluidly socializing across tables, rather than choosing to segregate by race, as happens in so many American high schools. Bullying and teasing are, I am told, non-issues, and when they do infrequently occur, the students for the most part "police" themselves and challenge each other to embrace tolerance.
There is no academic tracking. Within the Common Core-required coursework, students can choose to take advanced-level courses such as pre-calculus, The College Board's Advanced Placement Program, and can select college-level courses with participating institutions of higher education. AITE has a 99.4 percent graduation rate. Our daughter will soon graduate to attend a college of her choice.
As the prom pictures were taken, I couldn't help but look at my daughter and her friends through the lens of the 60th anniversary of Brown v. Board of Education. They represent the successes of the landmark U.S. Supreme Court decision that desegregated public schools, and our community is so much richer for the example these children set for us today.
Monday, May 19, 2014
In Brown v. Board of Education, the U.S. Supreme Court declared unlawful the segregation of African American schoolchildren from others in the nation’s schools. The Court boldly proclaimed that “in the field of public education the doctrine of ‘separate but equal’ has no place.” Indeed, given the importance of education, the Court stated that a state opportunity to receive an education “is a right that must be available to all on equal terms.”
In many ways, the Brown decision represented a “pay now” approach to education. The Court recognized that relegating a substantial segment of the population to separate and inferior educational opportunities would prevent African Americans from effectively entering into the civic, economic and cultural life of the nation as equals. The Court was not blind to the hard work that school desegregation would require. Instead, it recognized that this work was necessary to ensure a strong democracy, economy and international reputation. It recognized that it must “pay now or pay later” and it chose to “pay now” to begin closing the educational opportunity gap.
Unfortunately, the Court and other branches of the federal government ultimately abandoned this “pay now” approach to education. In fact, all three branches pushed for effective school desegregation for only a short time. Through a series of Supreme Court decisions and the retreat of the executive branch from school desegregation, the federal government invited a return to racially isolated schools and rejected any federal constitutional protection of a right to equal educational opportunity. In addition, the citizenry of the United States has failed to consistently call on its leaders to end longstanding disparities in educational opportunity.
Sixty years after Brown, the United States has fully embraced a “pay later” approach to education. In the face of robust research that reveals that low-income school districts demand greater resources to effectively educate their children, only 17states provide these communities with greater funding, according to a 2012 report entitled “Is School Funding Fair?” Although racial isolation in schools is too often accompanied by inferior educational opportunities and outcomes as well as concentrated poverty, the nation is permitting, and sometimes inviting, a return to separate and unequal schools, as Gary Orfield’s Civil Rights Project at UCLA has documented in numerous reports.
As a result of these decisions, the United States is forging a path toward economic colonization. The U.S. tolerance for an entrenched achievement gap has imposed upon the United States “the economic equivalent of a permanent national recession,” as a 2009 report from McKinsey & Company found in “The Economic Impact of the Achievement Gap in America’s Schools.”
Friday, May 16, 2014
Anniversaries always run the risk of distortion, as some attempt to recast past events in ways that further their own agenda. Meagan Hatcher-Mays, of Media Matters, wrote an interesting article yesterday surveying "conservative" media's reporting on the anniversary of Brown. She wrote:
On May 13, The Wall Street Journal ran an op-ed by former National Review Online contributor Abigail Thernstrom and her husband, Stephan Thernstrom, who misrepresented both the importance and legacy ofBrown by declaring it "an American success story" and its promise "fulfilled," while pushing the myth that the U.S. Constitution is "colorblind." Because apartheid schools are now technically prohibited, the Thernstroms also dismissed statistics that show schools have been rapidly resegregating in recent years, called integration efforts "racist," and ignored the well-documented link between housing segregation and the growing separation of schools based on class and race. Instead, the Thernstroms blame "the differential fertility rates of immigrants and natives" for our separate and unequal schools.
This most recent attack is part of a larger right-wing pattern of denying the continuation of systemic racial discrimination and advocating for the rollback of half a century of civil rights precedent and legislation.
When conservative media discuss Brown at all, it is usually to misrepresent the case's condemnation of a racial caste system designed to maintain white supremacy in order to champion education policies like voucher programs and school choice, or take offensive shots at civil rights leaders. For example, when Louisiana's voucher program was scrutinized for violating several long-standing desegregation orders, outlets likeNational Review Online compared Attorney General Eric Holder to segregationist Alabama Governor George Wallace, famous for blocking the University of Alabama's doors to black students in the wake of theBrown decision.
She goes on to discuss Justice Roberts' simplistic treatment of Brown in his opinion in Parents Involved v. Seattle Schools.
These mischaracterizations of Brown and its legacy pose serious dangers to our educational system. First, Brown is misused in the service of educational policies that are in question like charter schools and vouchers. Putting aside for the moment whether these are or are not good policies, these policies should stand on their own feet without distorting Brown. Distorting Brown robs us of legitimate debates over these policies. Second, distorting Brown distorts the problem of segregation, racial isolation, neighborhood schools or however one might phrase it. No one can deny our schools are and have been sorely unequal. No one can deny our schools contine to be racially isolated. Only by distorting Brown can one even begin to disconnect and minimize the importance of these two intertwined, undisputed facts.
Wednesday, May 14, 2014
Education Law Prof Blog co-editor Derek Black has written a commentary that is part of in Education Week's Brown at 60: New Diversity, Familiar Disparities series. In his piece, Black discusses why integration still matters for all students at a time when the Supreme Court and society are less inclined to support remedial solutions. In his commentary, Why Integration Matters in Schools, Black points out the benefits of integration for non-minorities:
Too often, the conversation around integration focuses exclusively on the benefits for poor and minority communities. However, integration holds substantial benefits for middle-income and white students as well. First, integrated schools improve critical thinking. In diverse environments, students are faced with new and varied perspectives and forced to think through their own or new positions more carefully, which improves their critical-thinking skills. Second, integrated schools better prepare students to navigate the multicultural world and global economy they will face upon graduation.
On these two metrics, whites are seriously disadvantaged. Data indicate that, to the surprise of many, whites are actually the most racially isolated student group in the nation (see charts, Page 31). Research demonstrates that this isolation ill prepares them for the future. Major corporations make this point even more concretely in briefs before the U.S. Supreme Court. They attest that they want graduates who are prepared to work in multicultural environments. Integrated schools produce these students.
In other words, white families who are concerned about long-term competitiveness need integrated schools as much as anyone.
Read more of Derek Black's commentary at Education Week here.
Friday, May 9, 2014
In the aftermath of the Supreme Court's decision upholding Michigan's ban on the consideration of race in admissions, the U.S. Departments of Education and Justice issued a dear colleague letter, reaffirming their earlier policy guidance in support of voluntary integration in K-12 and diversity in higher education. The text of the letter is as follows:
We are writing to confirm that the decision of the United States Supreme Court issued on April 22, 2014 in Schuette v. Coalition to Defend Affirmative Action, et al., leaves intact the Court’s prior holdings recognizing that institutions of higher education and elementary and secondary schools may use all legally permissible methods to achieve their diversity goals. These include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow from a diverse student body.
The Departments of Education and Justice strongly support diversity in elementary, secondary, and higher education, because racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation. 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. Furthermore, to be successful, the future workforce of America should transcend the boundaries of race, language, and culture as our economy becomes more globally interconnected.
In 2011, the Departments issued “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and the related “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools.” Additionally, in 2013, after the Supreme Court issued its decision in the Fisher case, we issued further guidance in the form of “Questions and Answers about Fisher v. University of Texas at Austin.” All three guidance documents remain in effect after the Schuette decision and are available at www.ed.gov and www.usdoj.gov. In a State with a provision like the one in effect in Michigan, which was upheld in Schuette, you should consult with an appropriate legal official, such as your State’s attorney general, with regard to your institution’s or agency’s ability to take actions consistent with these guidance documents.
We appreciate your interest in these matters and your commitment to help students succeed. Our offices stand ready to provide technical assistance should you or your colleagues need it on this important topic.
Monday, May 5, 2014
A new report by the Center for American Progress analyzes the teacher and student diversity in all fifty states. While nearly 1 out of 2 public school student are students of color, only 1 out of 5 teachers are. The report's major findings include:
- The gap between teachers and students of color continues to grow.
- Almost every state has a significant diversity gap.
- When we looked across racial and ethnic backgrounds, we found that the Hispanic teacher population had larger demographic gaps relative to students.
- Diversity gaps are large within districts.
The full report is here.
Friday, May 2, 2014
Pro Publica has published a new in-depth story on the current state of school desegregation orders. Its research unearthed mass confusion. Federal agencies were unable to accurately identify and verify all of the existing orders for which they are responsible. School districts, including their attorneys, were unaware they were still under order. Some incorrectly insisted they were never under order or had the order lifted recently. When the issue has been raised with courts, they have also been less than receptive to the idea of enforcing their own orders. Of course, all the while, school segregation has crept back up over the past two decades (although by some measures it has stabilized in recent years). The story explores any number of causes for the neglect, but the bottom line, as Mark Dorosin of the University of North Carolina Center for Civil Rights puts it, is: "The promises that were made to these kids have never been fulfilled from 40 years ago." His colleague, Elizabeth Haddix, adds, "Communities get caught sort of unaware about what they have a right to challenge and what is going on." The story also includes some nice commentary by Wendy Parker, Gary Orfield, and Brian Landsberg, all long-time school desegregation advocates and experts. The full story is here.
Monday, April 28, 2014
The Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action affirmed the ability of states to ban the use of racial preferences in state institutions of higher education. Although those committed to diversity in higher education view this decision as further evidence of the erosion and eventual demise of affirmative action, this decision also should serve as a wake-up call that the nation must undertake a renewed effort to close the opportunity gap in elementary and secondary education.
The Supreme Court has been tolling the death knell for affirmative action for many years. The Schuette decision is merely further evidence that the end is not far off. In the 2003 decision in Grutter v. Bollinger, the court approved the consideration of race as one factor among many in creating a diverse class at the University of Michigan Law School. However, Justice Sandra Day O’Connor’s majority opinion noted that given the growing number of minority applicants who had earned high test scores and grades, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
In the 2013 decision in Fisher v. University of Texas, the Supreme Court permitted colleges and universities to prove their continued need to sometimes consider the race of students to admit a diverse student body. Yet, the court’s constitutional analysis can trap many institutions between the Scylla of insufficient evidence on the racial composition needed to reap the benefits of diversity, and the Charybdis of specific evidence regarding how much diversity they seek, which the court is likely to label a quota.
Undoubtedly, Schuette’s approval of state bans on racial preferences will advance the eventual demise of affirmative action by removing all constitutional barriers to such bans. Schuette also will embolden supporters of those bans to seek similar bans in other states.
The erosion and impending demise of affirmative action must serve as a reminder that the continued need to use affirmative action is caused in substantial part by the nation’s failure to remedy the opportunity gap that continues to plague our nation’s elementary and secondary schools. Far too many minority students and poor students of all races continue to attend schools with the least effective teachers, inadequate resources and poorly maintained facilities when compared to their more affluent peers, as President Obama’s Equity and Excellence Commission report confirmed last year.
The need to end this deeply entrenched opportunity gap is a moral imperative for the foundation of a just and equitable society. Justice Anthony Kennedy acknowledged this when he stated that “[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children” in his 2007 opinion in Parents Involved in Community Schools v. Seattle School District.
Moreover, both those who support affirmative action and those who seek to abolish it bear the heavy costs of the educational opportunity gap. Research establishes that the current failure to provide an adequate education to all schoolchildren costs the nation billions in lost taxes, public assistance, criminal justice support and health care costs. For instance, the nation forfeits $156 billion in income and tax revenues during the life span of each cohort of students who do not graduate from high school. (“The Price We Pay: Economic And Social Consequences Of Inadequate Education,” Clive R. Belfield & Henry M. Levin, eds. 2007). Furthermore, the cost of the opportunity gap will increasingly weaken our economy as the changing economy demands more workers with higher-level skills and the number of Hispanic and African-American children becomes an increasingly larger share of the school-age population.
Affirmative action is in part a bandage that seeks to reduce the hemorrhaging from our broken elementary and secondary school system. It is important to keep this bandage in place as long as possible or the hemorrhaging will increase. Therefore, those committed to diverse institutions of higher education and a diverse workforce must continue to push for race-sensitive approaches as well as race-neutral means to achieve diversity in higher education.
In addition to these critical efforts, the United States must wake up to the need for comprehensive reforms that close the educational opportunity gap. Scholars, activists, business leaders and ultimately the public must call on leaders in Congress and the White House, as well as in state legislatures and local school boards, to take action to close this gap. Ultimately, if the nation fails to take on this challenge now, it does so at its own peril.
Kimberly Jenkins Robinson is a professor at the University of Richmond School of Law and a senior fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. Contact her at email@example.com.
Wednesday, April 23, 2014
Yesterday, the Court held in Schuette v. Coalition to Defend Affirmative Action that the Michigan referendum, which amended the state constitution to prohibit the consideration of race in admissions following Grutter v. Bollinger, was constitutional. The plaintiffs had alleged that the Michigan amendment violated equal protection under the Court's political process theory, most recently articulated in Washington v. Seattle Schools, 458 U.S. 457 (1982). In Washington, the state had banned integrative busing (except that required by court order), which invalidated the Seattle School District's voluntary desegregation plan.
The plaintiffs in Schuette argued that the Michigan amendment put minorities and minority interests at a distinct disadvantage in securing favorable laws, just as the state had in Washington. An alum of the University of Michigan could, for instance, petition for favorable admissions policies and considerations for children of alums without needing to resort to a consitutional amendment, but after Michigan's referendum, those advocating for racial diversity considerations would be precluded from securing favorable legislation or policies without first passing a constitutional amendment. This, they say, violates equal protection in the political process.
The Court rejected their claim by a vote of 6-2 (Kagan recused herself), but there was no majority opinion agreeing on the rationale. Three justices (led by Kennedy) distinguished the Washington line of cases as being about states changing the political process in such a way that made it more difficult to remedy discrimination and/disadvantage. In other words, those three justices read the political process theory to preclude states from locking in a political process that made it more difficult to remedy discrimination. They reasoned that Shuette did not involve limits on remedying discrimination, but limits on using racial preferences. The latter is distinct and, thus, the political process theory does not apply to Michigan's actions here.
In a separate opinion, Justice Scalia, joined by Thomas, reasoned that the political process theory would apply here and that the facts of Schuette are not distinct. He, however, argued that the political process theory was itself a flawed doctrine and should be overturned. The proper standard would be the intentional discrimination standard, which the plaintiffs could not meet here.
Justice Breyer, writing alone, reasoned that this case did not involve a change in the political process, but simply a constitutional amendment, which was permissible. The U.S. Constitution permits race conscious admissions, but does not require them. Thus, voters are free to reject them.
Justice Ginsberg and Sotomayor argued that the Washington line of cases applied and this amendment violates that precedent, per the plaintiffs' rationale discussed above.
In most respects, the case does not change much (at least not yet). It did not change the holding in Grutter. The issue of whether diversity is a compelling interest was simply not before it, which the Court emphasized. The only issue before it was that of altering the political process by which a state or locality makes decisions about race. In other words, at what level of government should issues of integration, diversity, busing, and discrimination be made and when can those decision-making rules be changed so as to make certain racially progressive policies more difficult. Cases premised on this precise contextual question have only come before the Court a few times in the past and do not involve a rich doctrinal development. So while the Court did appear to limit that doctrine, it was never a widely used doctrine.
The case does sanction anti-affirmative action legislation, but the fervor for that legislation was greatest following Grutter, not now. There is nothing in Schuette to incite or upset anti-affirmative action advocates. With that said, I will leave further discussion to others who have spent more time thinking seriously about this case. A few have already contacted me and I hope to have their thoughts soon.