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.
Monday, August 31, 2015
This from the National Coalition on School Diversity:
On behalf of the National Coalition on School Diversity, we invite you to attend our third national conference, "21st Century School Integration: Building the Movement for Diversity, Equity, and Inclusion,"which will take place in DC on September 24-25th.
The National Coalition on School Diversity (www.school-diversity.org) is a network of nearly 30 national civil rights organizations, university-based research centers, and state and local coalitions working to expand support for government policies that promote school diversity and reduce racial isolation. We also support educators, parents, and students working to create and sustain integration at state and local levels. Our work is informed by an advisory panel of scholars and academic researchers whose work relates to issues of equity, diversity, and desegregation/integration.
Friday, August 21, 2015
A new study by Seth Gershenson, Stephen Holt, and Nicholas Papageorge finds a disturbing trend of racially disparate expectations for students based on race. The abstract offers this summary:
Teachers are an important source of information for traditionally disadvantaged students. However, little is known about how teachers form expectations and whether they are systematically biased. We investigate whether student-teacher demographic mismatch affects high school teachers’ expectations for students’ educational attainment. Using a student fixed effects strategy that exploits expectations data from two teachers per student, we find that nonblack teachers of black students have significantly lower expectations than do black teachers. These effects are larger for black male students and math teachers. Our findings add to a growing literature on the role of limited information in perpetuating educational attainment gaps.
More specifically, they find that "relative to teachers of the same race and sex as the student, other-race teachers were 12 percentage points less likely to expect black students to complete a four-year college degree. Such effects were even larger for other-race and other-sex teachers, for black male students, and for math teachers. In addition to being statistically significant, these effects are arguably practically significant as well, as they constitute more than half of the black-white gap in teacher expectations."
Read the full study here.
Tuesday, August 18, 2015
The New York State Education Department has released the data from the standardized tests administered to elementary students at the end of this past academic year. The opt-out movement scored a much bigger victory (if victory was its goal) than I ever would have imagined. Some students opted out for valid health and other reasons, but a whopping twenty percent of students refused to take the tests without any valid excuse. Presumably they objected based on principle.
A five or so percent opt out would have done little to upset the status quo, but one of this size has enormous ramifications. First, as a condition of receiving federal education money, the Elementary and Secondary Education Act (No Child Left Behind) mandates that 95% of students take the test. The Secretary of Education has the power to waive a number of requirements, but the Secretary cannot waive this requirement. Congress wanted this one to stick. As analyzed in an earlier post, this poses a real quandary. The purpose of the provision was to make sure that schools did not conveniently exempt their weakest students from the test to push up their pass rate. But when students simply refuse to take the test, holding the school accountable seems unfair and contrary to the purpose of the Act. The Secretary could take a page from the reasoning of King v. Burwell (the recent Affordable Care Act decision offering a creative reading of the Act to save individual tax credits) and ignore the statutory language and violation. But absent creative reasoning, New York is in violation it cannot escape.
Tuesday, August 11, 2015
For those who missed it, a recent episode of This American Life did an excellent job over covering the benefits of school integration and the pitfalls of segregation. It also includes a close look on how segregation shaped the context in which the Ferguson, Missouri, events unfolded. The website offers this summary:
Right now, all sorts of people are trying to rethink and reinvent education, to get poor minority kids performing as well as white kids. But there's one thing nobody tries anymore, despite lots of evidence that it works: desegregation. Nikole Hannah-Jones looks at a district that, not long ago, accidentally launched a desegregation program. First of a two-part series.
Listen to the episode here.
Thursday, July 23, 2015
Edbuild has released an interactive map that includes every school district in the country. You can zoom in and out and hover over individual school districts. Without leaving the page, it will tell you size of the student population and the percent of poor students attending the school district. I spent some time with it this morning and could not stop looking around at different locations. It is an exceptional teaching and researching tool for school segregation.
In past years, I have used the clunky method of downloading census track maps, going to school district websites, transposing the district data onto the map, and then moving the map around on an overhead projector. It works, but there is a limit to how much information you can throw at students in this format and a limit to how long students can tolerate me physically manipulating the map and trying to explain some point at the same time. This interact map by Edbuild does almost all the work for you ahead of time and it is also well color-coded.
Wednesday, July 8, 2015
OCR's Dismissal of Asian Americans' Claim of Discrimination Against Harvard Is Much Ado About Nothing
Yesterday, a number of major new outlets, from the Wall Street Journal and the AP to the Bloomberg and US News & World Report, published stories on the fact that the Office for Civil Rights dismissed the complaint that Asian Americans recently filed against Harvard. The complaint alleged that Harvard systematically discriminates against them in the admissions process. The substance of the complaint and the prestige of the university against which it was filed are both significant. See my prior post on the complaint. That OCR dismissed the complaint, however, is not.
After filing the complaint, the plaintiffs had also filed a lawsuit in federal court. The federal court's jurisdiction exceeds and can preempt that of OCR's. Thus, even if OCR had left the complaint open, the final word would have belonged to the federal court. That OCR, which has a rapidly growing case load, would choose to avoid devoting resources to this complex case makes perfect sense. This not a substantive judgement on the merits of the complaint, as some headlines would leave readers to believe, but just good stewardship of federal dollars. Moreover, if there are issues the federal court does not address, the plaintiffs will be free to revive their complaint with OCR.
Tuesday, June 23, 2015
Well, it's not quite as simple as the title suggests, but a new study by two graduate students from Rice and Duke finds
"that the legacy of slavery contributes to black-white education disparities through greater public-private school racial segregation". . . . Using regression analysis to explain differences in the degree of attendance disparities across most counties in the South, researchers found a correlation between historical geographic slave concentration and modern day K-12 school segregation. An increase in slave concentration is related to greater underrepresentation of white students in public schools.
In other words, the more slaves who lived in a particular geographic location the more likely white students are to attend private school today.
To be clear, several factors influence white enrollment in private schools, but the correlation between the concentration of African American students and white enrollment in private schools is strongest "in states where slavery was most strongly rooted. . . . The study found that the black population concentration relationship only holds in the original Confederate States, or Deep South: Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina and Texas." In the Deep South, when African Americans near and cross fifty percent of the student population, white enrollment plummets, with whites' eventually attending private school at more than twice the rate as minorities. The same disparities are not true in the upper south.
Download the full study here.
Thursday, June 11, 2015
The American Institutes of Research has released a nine-year study, What Happens When Schools Become Magnet Schools? A Longitudinal Study of Diversity and Achievement (Julian Betts, UC San Diego and Sami Kitmitto, Jesse D. Levin, Hans Bos, and Marian Eaton, AIR). The AIR study found that while there was some evidence that the schools were successful in increasing diversity, there was inconclusive evidence of increased student achievement. The AIR reviewed the performance of 21 elementary schools in 11 school districts from 2002-2011. From the AIR's report, here are the key findings:
- The most concrete evidence of conversion’s effects was a decline in the concentration of minority students in traditional magnet schools. On average, neighborhood schools that converted to magnet schools initially served 84.5 percent minority students, compared to an average of 64.1 percent in their district. After conversion, the percentage of minority students at traditional magnet schools remained virtually unchanged (84.9 percent) while the concentration of minorities in the district as a whole rose to 66.3 percent. Thus, the demographics of the magnet school became more like those of the district—one goal of this type of conversion.
- Achievement in traditional magnet schools was higher after conversion, outpacing district achievement in English language arts (ELA), but not in math. Average ELA achievement in traditional schools went up by an average of 8.1 percentile points, while average achievement in the districts went up by an average of 5.6 percentile points.
- Achievement in destination magnet schools lost ground to their districts over the conversion period. After conversion, ELA achievement in the districts increased by 6.9 percentile points while achievement in the magnet schools changed little, rising just 1.4 percentile points. Average math achievement in the districts rose 8.9 percentile points after conversion while achievement in the magnet schools did not change.
Friday, June 5, 2015
For the past five or so years, concerned citizens have been in active litigation with the Pitt County Board of Education. The litigation arises out of a longstanding desegregation order, which seems to have to come an end with the most recent decision in the case. In the late 1960s and early 1970s, a district court had found both the county and city school systems to be segregated and ordered them remedy to their constitutional violations. They were slow to do so. In 1986 the districts merged into one county system, believing this might help in the overall management of student assignments. No court ever declared either district unitary.
Fast forward to 2006 when the district adopted a student assignment plan that explicitly considered race and whose purpose was to racially balance the schools. At this point, the district was still under court order. Thus, not only could it have taken such action, Supreme Court precedent in Green v. New Kent County and Swann v. Mecklenberg would have mandated such action.
A dispute eventually arose over the sufficiency of plan to move the district toward unitary status, but no one moved for unitary status. Rather than fight over unitary status, the parties entered into a settlement agreement in 2009 whereby the parties would work toward the district obtaining unitary status. In 2010, however, the district adopted a plan that would have exacerbated rather than cured racial isolation in the the district. Plaintiffs then sought to enjoin the segregative plan. The district court denied the plaintiffs motion and allowed the plan to go into effect.
The Fourth Circuit on appeal, reversed the district court in 2012:
Given that there is no dispute that the school district has not attained unitary status, the evidentiary burden should have been on the School Board to prove that the 2011-12 Assignment Plan is consistent with the controlling desegregation orders and fulfills the School Board’s affirmative duty to eliminate the vestiges of discrimination and move toward unitary status.
Everett v. Pitt Cnty. Bd. of Educ., 678 F.3d 281, 290 (4th Cir. 2012).
On remand, the school district sought to circumvent the effect of this ruling by moving for unitary status for the first time. Its theory was that it had achieved unitary status years ago and, thus, would have no current desegregation obligation and no burden to carry in regard to the current student assignment plan. African American parents objected that the law of the case and the past settlement agreement, along with various admissions by the district and statements by the district court, all conclusively established that the district had not achieved unitary status and was under a continuing obligation to desegregate. In short, the issue before the court was whether the current assignment plan eliminated the vestiges of discrimination, not whether the district had achieved unitary status some two decades earlier.
The district court sided with the school district and found that the district had obtained unitary status with respect to student assignments as early as 1986. Yesterday, the Fourth Circuit affirmed this finding in Everett v. Pitt County, No. 13-2312. The effect was to preempt its earlier decision in favor of desegregation.
This case is eerily reminiscent of Holton v. Thomasville, 490 F.3d 1257 (11th Cir. 2007), of which I was a part of. Holton was filed in 1998. Early rulings by the district court held that the Keyes presumption was in effect and, thus, all racial disparities in the district were the result of past segregation. The undisputed facts showed that the district, for more than two decades, had operated highly segregated elementary schools. Two were entirely African American. A third was almost entirely African American. And a fourth housed almost the entire white population in the district. To be clear, this meant three African American Schools and one white school.
You might assume that housing segregation explains this pattern. It did not. The district did not assign students to elementary schools based on neighborhoods. Rather a freedom of choice plan was in effect. The schools were more segregated than the neighborhoods. More important, all four of the elementary schools were within one or two miles of one another. Thus, integration was an easy thing to achieve and segregation the bigger task.
The district court initially ruled in favor of the school district on all counts, not because racial inequalities were gone. To the contrary, they were startling in almost all aspects of the district's operations. Rather, the district court found that the school district had achieved unitary status in regard to student assignments in the early 1970s and, thus, everything that followed was largely irrelevant.
The district court was correct that the schools did have some modicum of balance for a few years in the 1970s, but they never stabilized. The racial balance was more akin to a statistical fluke as some schools moved along a spectrum from being all white to all black. Nonetheless, on the second trip to the 11th Circuit, the court washed its hands of the case and affirmed the district court, notwithstanding some very odd reasoning by the district court. For instance, the district court concluded that the vestiges of discrimination were gone because none of the current plaintiffs ever attended the de jure schools in Thomasville. In other words, desegregation ends after the de jure generation graduates.
Why do Everett and Thomasville matter so much? To be clear, active desegregation is not occurring in any systematic fashion in our nation's schools. Thus, they matter because they generally show how courts appear uninterested in finishing the job of desegregation. Of course, this presupposes that desegregation is still legally appropriate. On this score, these cases reveal troubling doctrinal and evidentiary trends.
First, even when plaintiffs win, they loose. This happens only by allowing school districts to have continual bites at the apple. No matter what problems a district has today, it can go back to an early time and claim unitary status. Second, while this is theoretically possible, it is practically problematic. It is true that unitary status declaration by a court is not the end-all-be-all. Both of these points require unpacking.
The Supreme Court's decision in Green required districts to desegregate regardless of whether the federal government or a court were involved. The failure to do so was a deemed a continuing constitutional violation. By the same token, a district could cure its constitutional violation without a court. In effect, a court is the body that confirms reality, not the one that makes it. This confirmation can sometimes happen after the fact. But when a dispute arises decades out, the evidence that conclusively establishes a violation has been cured is hard to come by. And evidence of this nature is necessary because a presumption is in effect against the school district. Thus, freely granting retroactive unitary status, decades later, is in tension with existing Supreme Court precedent.
Retroactive unitary status in Pitt County is even more problematic given that everyone in the case had assumed that the district was under a desegregation duty for years. Only when that assumption became problematic for the district's other agenda did it change its mind. Allowing this move is reminiscent of Horne v. Flores--a case involving funding for English Language Learner programs-- in which the Supreme Court allowed a motion for reconsideration to unravel a set of trial court findings and consent decrees from the previous decade, all of which the defendants had lost. The Court did not hold that any of those findings or decrees were wrong, but only that changed facts allowed the defendants to have the orders reconsidered years later.
This type of after-the-fact reconsideration and retroactive unitary status puts plaintiffs in the position of having to win their cases not just one time, but two, three, four, or five times. Defendants only have to win once. I hope that is not the new equal protection.
Monday, May 25, 2015
Thursday, May 21, 2015
For those who missed it, NY Magazine has a fascinating article on one elementary school's attempt to teach students how to navigate issues of race. It is a clearly thought out curriculum, but one involving a highly controversial practice: segregating students. The segregation is temporary and involves students breaking into their racial groups to discuss issues of race. In these smaller groups, the thought is that students would more openly and honestly discuss the issues, after which all students would reassemble and hopefully have a better interracial dialogue, rather than just being polite. The other thought was that this two step process would also help all groups feel a sense of equal belonging and ownership in the community. The curriculum is also designed to teach students that not talking about or recognizing race is an ineffective strategy for dealing with issues of race.
Get the full story here.
Monday, May 18, 2015
The 61st anniversary of Brown v. Board of Education passed this weekend. Last year's 60th brought a fair amount of commentary and reflection. This year, it understandably passed with relatively little. Credit to Rebecca Klein at Huffington Post, however, for pulling together a series of data snapshots on the state of segregation and inequality in our public schools. In very easy to follow graphics, she shows the racially inequitable funding of schools, the racially inequitable access to middle income peers (a topic which I analyze in-depth here), racially inequitable access to high quality teachers, the graduation gap, the racial demographics of teachers, and racially disparate discipline.
Friday, May 1, 2015
The Office for Civil Rights has released its 2013-2014 report to Congress and the President. From my perspective, past reports have been dense and un-illuminating. This current one strikes a very different approach. First, it is very well written. Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative. Fourth, it is analytical. Fifth, it is visually appealing. Sixth, it implicitly suggests courses of action or concern. Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.
May 1, 2015 in Bullying and Harassment, Discipline, Discrimination, English Language Learners, Equity in education, Federal policy, Gender, Racial Integration and Diversity, Special Education | Permalink | Comments (0)
Thursday, April 30, 2015
The Century Foundation and Poverty & Race Research Action Council's new report A Better Start: Why Classroom Diversity Matters in Early Education is now available. It describes racial, ethnic and economic disparities in preschool. Halley Potter, a contributor to the report, remarks "As policymakers consider the best ways to set our nation's children on a path to success, we hope this report will encourage our leaders to enact creative policy solutions that increase the opportunities for children of different socioeconomic and racial backgrounds to learn together in the same classrooms."
- Read a summary of the findings
- Download the full report
- See coverage of the report in the Washington Post
Wednesday, April 29, 2015
Last week a federal court approved a consent order to put Huntsville, Ala. on the road to unitary status. The Huntsville schools must still comply with a decades-old federal desegregation order, but the consent order is a "plan to plan" to end the imbalances that led to federal oversight. In its order, the court wrote a message to the district's students in the district, urging them to show openness and patience as the school system rezoned them for new schools. Last year, the district court expressed skepticism about the district's progress toward unitary status, citing among other things, continued racial imbalance in the city's schools, discrepancies in disciplinary rates, and racial achievement gaps on measures of academic performance. Under the consent order, the school system is tasked with making progress in areas identified in the original desegregation order: (1) desegregation of faculty and staff; (2) majority to minority transfers; (3) equity in school construction and site selection; (4) interdistrict transfers; (5) equity in services, facilities, activities, and programs, including athletics and other extracurricular activities; and (6) equity in transportation. The consent order in Hereford v. Huntsville Bd. of Educ. is here.
Tuesday, April 28, 2015
Helen Ladd, Charles Clotfelter, and John Holbein have released a new study on North Carolina's charter schools that will only intensify the debate between charter school and civil rights advocates. A few reports, most notably those by the UCLA Civil Rights Project, have charged that charter schools are more segregated than traditional public schools. Those reports have been criticized as overstating the matter and unfairly framing the evidence (by comparing charters to dissimilar public school systems).
Ladd's study addresses the issue with more precision by focusing only on North Carolina and looking at the change in charters and public schools over time. By measuring change over time, Ladd is able to compare charters to themselves and public schools to themselves, mooting claims of unfair comparisons. This analysis reveals an extremely troubling dynamic. As the chart below shows, charter schools are becoming "whiter" and traditional public schools more heavily populated by students of color.