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.
Thursday, April 23, 2015
The UCLA Civil Rights Project has released a new report detailing the progress in school integration in Connecticut and the lack thereof in New York and Massachusetts. Connecticut's success, of course, is an outgrowth of the litigation in Sheff v. O'Neill, which held that de facto segregation in the schools violated the state constitution's guarantee of equal educational opportunity. Among the report's most important statewide findings in Connecticut are:
- The white share of the total public school enrollment dropped in the state from 76.8% to 59.9% between 1987 and 2012 while the Latino and Asian share increased substantially as was happening across the U.S. The proportion of Latino students more than doubled, rising from 8.8 to 20.1% over the last twenty-five years. The basic story is that fewer white children were born and the population change reflected the large immigrations to the U.S. from Latin America and Asia. The change did not reflect a surge of black enrollment.
- The overall share of African American and Latino students who attended intensely segregated schools (90-100% minority schools) and apartheid schools (99-100% minority schools) decreased. There was a significant drop in extreme segregation.
- The share of students living in poverty nearly doubled over the last fifteen years from 19.5% to 36.2%, also reflecting national trends. In 2012, the typical African American student attended a school with 63.1% poor students, but the typical white student had 22.3% classmates from low-income families. Segregation was double segregation for students of color.
- Educational outcomes were clearly related to segregation. The overall graduation rate was positively correlated with the proportion of white and Asian students but was negatively linked with the black and Latino share in a school. Academic performance showed the same pattern. This was related to many historic and contemporary inequalities associated with race and ethnicity in U.S. society. The report summarizes a half century of research on the benefits of integration.
- Connecticut’s magnet schools showed great potential of promoting racially integrated schools. In 2012-2013, magnet schools in Connecticut enrolled a more balanced number of students from each racial group (e.g., 30.2% whites, 31.4% blacks, 30.5% Latinos, and 4.4% Asians) as compared to non-magnet schools, which enrolled 61.7% whites, 11.6% blacks, 19.5% Latinos, and 4.8% Asians. Additionally, the typical student of each racial group in Connecticut’s magnet schools attended a similar percentage of low-income students, ranging from 49% to 59%; however, there were noticeable racial disparities in contact with poor students in non-magnet schools from 21% to 62%.
- Connecticut charter schools are far more segregated than traditional public or magnet schools.
This overall positive trend, however, belies the variation between metropolitan areas in the state, with some doing very poorly in terms of integration, and all needing to do more to fully integrate their schools.
Tuesday, April 21, 2015
A new report by the National Women's Law Center and the Poverty and Race Research Action Council, Finishing Last: Girls of Color and School Sports Opportunities, finds that
Nationwide, 40 percent of heavily minority schools have large athletics gaps for female students, compared to only 16 percent of heavily white schools. . . . [A]t both the state and national level heavily minority schools typically provide fewer sports opportunities—defined as spots on teams—compared to heavily white schools. Heavily minority schools also allocate these spots less equally between boys and girls, leaving girls of color especially shortchanged. This means that girls of color receive far fewer spots on teams than white girls, white boys and boys of color. The report shows how this lack of access to school sports has long-term consequences for girls’ health, academic success and economic security.
It breaks those numbers down further, showing that females at heavily minority schools have:
- Only 39 percent of the opportunities to play sports as girls at heavily white schools
- Only 67 percent of the opportunities to play sports as boys at heavily minority schools
- Only 32 percent of the opportunities to play sports as boys at heavily white schools
Get the full report and commentary here.
Replicating Inequality and Segregation through Test Scores: What the Opt-Out and Opt-In Movements Fail to Recognize
Initial reports indicate that 150,000 students or so refused to take New York's state standardized test, as part of the growing op-out movement. This, of course, incensed the state department of education. First, compliance with No Child Left Behind requires that 95% of students take the test. Second, "Test refusal is a mistake because it eliminates important information about how our kids are doing. Those who call for opting out really want New York to opt out of information that can help parents and teachers understand how well their students are doing. We can't go back to ignoring the needs of our children," said Jonathan Burman, a state education department spokesman. But the response of Nicole Brisbane, state director at Democrats for Education Reform, was most telling:
Thursday, April 9, 2015
According to local news in Duncan, Oklahoma a local third-grade teacher distributed Bibles to her students in class. The Appignani Humanist Legal Center has threatened to sue unless the school takes action, although it is not clear what that action would be. The Center learned of the Bible distribution when one student complained that he or she had been pressured into accepting a Bible.
Tuesday, April 7, 2015
The Century Foundation and the Poverty & Race Research Action Council invite you to attend a Capitol Hill Briefing on a new report, A Better Start: Why Classroom Diversity Matters in Early Education.
New Scholarship on School Funding, Segregation, Native American Culture, Formerly Religious Charter Schools, and Tenure
The Brigham Young University Education and Law Journal has released its new issue, which includes several interesting articles. The titles and abstracts are as follows:
Monday, April 6, 2015
In the summer of 2013, Indiana passed a new voucher and tax credit bill that vastly expanded opportunities for students to attend private schools. In just ten school districts alone, the program funded $45 million in vouchers in the 2013-14 school year. In several individual school districts, the amount spent on vouchers doubled and tripled from the 2012-13 school year. Local teacher unions complain that the program is too permissive, permitting students who have never even "tried" the public schools to opt for a privately funded private education. They claim approximately half of the voucher students fall in this category.
Wednesday, March 25, 2015
Following up on recent stories about racial isolation in San Francisco's public schools, Priceonomics.com put its statistical prowess to work on the issue and produced some interesting analysis and inferences. While at the district level white students are grossly underrepresented in the the public schools, there is a significant amount of uneveness across individual schools and grade levels. They found significant white enrollment in elementary school, but significant drop-offs there after. At the elementary school level, they found "
the spread of the distribution is astounding. Half of San Francisco’s elementary schools have a student population that is 13% white or less. A few elementary schools are over 50% white, while a quarter of elementary schools are under 3.3%.
. . .
So while elementary schools may appear to be more diverse than middle and high schools, this is deceptive: The white students in the district are clustered into a handful of elementary schools -- such Grattan (which is 56% white), New Traditions (52%), and Miraloma (52%.)
According to Public Press, more affluent families tend to be savvier at the admissions process, and also tend to have the luxury of more flexibility with their preferences. For example, they’re more likely to be willing and able to transport their kids across town every day, if it means attending a particular school. “We have options,” one parent told Public Press, about the kindergarten admissions process. “We can send our kids to private schools. We can travel across town. Not every parent can.”
Those options usually don’t go away as a student ages. If at any point the process doesn’t shake out the way an affluent parent wants, they can just drop out, and shell out for a private education for their child. And, the data suggests, that’s exactly what they do.
Tuesday, March 24, 2015
This American Life ran a story last night, Three Miles, on a program "that brings together kids from two schools. One school is public and in the country’s poorest congressional district. The other is private and costs $43,000/year. They are three miles apart. The hope is that kids connect, but some of the public school kids just can’t get over the divide." Chana Joffee-Walt tells the story and allows us to listen to what happens when students get to see the other side and it looks a lot better. She not only describes poor students’ immediate reaction to seeing the rich school (one spontaneously bursts into tears) but also follows up on them ten years later and reports on how that experience affected their going—or not going—to college (or going and failing out, as several unfortunately did).
Although not emotionally raw, this story also reminds me of James Ryan's similar lens of analysis in Five Miles Away, A World Apart, which describes segregation over time in Richmond, Virginia.
The Arkansas Law Review's symposium issue on education (presumably celebrating the 60th Anniversary of Brown v. Board of Education) is now available on westlaw. The essays and articles offer a historical narrative spanning from segregation to current policies that divert funds and attention away from the education of poor and minority students to incarceration. Each is summarized below.
Peter C. Alexander, Seeking Educational Equality in the North: The Integration of the Hillburn School System, 68 Ark. L. Rev. 13 (2015).
Peter Alexander, uses the example of his small hometown of Hillburn, NY to discuss the history of segregation and integration in the north. Alexander points out that "[m]uch attention has been paid to segregated schools in the South, but surprisingly little has been written about segregated schools that existed north of the Mason-Dixon Line." However, even racially-diverse, small northern towns like Hillburn, which has a population of only about 1000 people, had segregated schools. "Curiously, the local high school was in the neighboring village of Suffern, New York, and it was integrated; however, children in the Hillburn schools were divided by race until the ninth grade." Nevertheless, Hillburn was not unique in its decision to segregate. Alexander points out that neighboring counties in New York, as well as numerous districts in New Jersey, Pennsylvania, Ohio, and many more norther states had segregated school. "The reasons segregated schools existed outside of the South varied from community to community." For some districts, it made geographic sense to segregate, as was the case in Hillburn. Alexander also discusses how economic demographics came into play as a rationale for segregation. Throughout the article, Alexander uses Hillburn's journey from segregation to integration as an example of the challenges that many northern cities and towns faced when making that transition.
Ellen Marrus, Education in Black America: Is It the New Jim Crow?, 68 Ark. L. Rev. 27 (2015).
Monday, March 16, 2015
Zelma Henderson, the last surviving plaintiff in Brown v. Board (not the consolidated cases from Virginia, South Carolina, and Delaware), has died at the age of 88. She was one of 13 African American parents in Topeka, Kansas, who brought the case. Interestingly, she had attended integrated schools in Oakley, Kansas, in the 1920s and 30s and was shocked by the segregated and unequal schools her children were forced to attend in Topeka. More here.
Friday, March 13, 2015
Genevieve Siegel-Hawley's study, City Lines, County Lines, Color Lines: The Relationship between School and Housing Segregation in Four Southern Metro Areas, is free for download at Teacher College Record (for, at least, a little while longer). Her study compares the experiences of housing and school segregation in Louisville, Chattanooga, Charlotte and Richmond. While housing segregation is a primary driver of school segregation, she demonstrates that school thoughtful policies have the capacity to partially untangle that connection. She writes:
Perhaps most striking among the findings was the way that school desegregation plans encompassing the community writ large disrupted the traditional influence of residential patterns on school enrollments. In support of James Madison’s early Federalist philosophy, areas with strong school desegregation policy across city-suburban lines were able to significantly hasten declines in levels of Black-White housing segregation.