Monday, September 9, 2013
The litigation in DOJ's suit over Louisiana's voucher program is moving fast. For the state, it is a little too fast. Two weeks ago, I posted on DOJ's claim that Louisiana's voucher program impermissibly interfered with standing desegregation orders. The district court quickly set a hearing for September 16. Now the state has responded that it wants to delay the hearing until November 15, claiming there is no rush because the new voucher applications will not start arriving until January. Louisiana's motivations for the delay are unclear. Maybe, the state is not prepared for the hearing. Maybe, it has ulterior motives.
Monday, August 26, 2013
As mentioned a couple of weeks ago, the UNC Center for Civil Rights is representing a group of parents in Pitt, NC, who allege that the district has taken steps that violate its affirmative duty to desegregate. In reviewing their proposed findings of fact, the crux of their claim is that the school district had three student assignment options on the table in 2008 and choose the most segregative of the three. Plaintiffs evidence at trial indicates that the district chose the segregative plan because, during its previous student reassignment plan in 2001 or so, white parents had objected to sending their children to some schools with substantial percentages of minority students and the district sought to avoid this reaction this time. In other words, the plaintiffs allege that the district is segregating students to avoid white flight and that white flight is not a legitimate factor upon which to assign students.
Thursday, August 8, 2013
A few weeks ago, I posted on the Missouri Supreme Court's decision upholding an interdistrict transfer program, which primarily would move students from St. Louis city schools to the suburbs, along with per pupil expenditures. Both districts were unhappy with the statute.
Yesterday, the St. Louis Post-Dispatch ran an editorial titled "Some St. Louis County schools say it loud: 'No blacks allowed.'" Of course, I don't have a feel for the local pulse and may be missing something everyone else in St. Louis knows, but the text of the editorial did not match the title. It did not discuss any specifics regarding hostility toward minorities in the suburban schools (hence my sense that the title may have been potentially overstated), but it did focus on the closely related and general issue of transfer students finding belonging in their new schools and the importance of a welcoming environment. The editorial suggests that the city students would find more belonging in their current schools and that transfers may just increase both the school system and the students' demoralization.
I stand by my long held position that integrative interdistrict programs are very important and that the research and data behind integration show impressive academic gains for low income minorities and social gains for whites. Yet, even though this editorial out of St. Louis greatly discounts the value of integration and the harms of segregation, it reminds us that numbers, social science, and generalities are rarely good enough in real world situations. Local communities always have their own political and emotional challenges, and students must attend school in real buildings that may or may not feel welcoming to them. Unless these local issues are handled carefully, good policies like interdistrict integration can easily fail. Let's hope the families and schools of St. Louis find a way forward. They have history on their side, as this program--although smaller in scale and financial impact--has been popular in the past and an important example for other communities to follow.
Friday, August 2, 2013
On Wednesday, the Georgetown University Center on Education and the Workforce released a study titled "Separate and Unequal: How Higher Education Reinforces the Intergenerational Reproduction of White Racial Privilege." The study begins with the bold finding that: "The postsecondary system mimics the racial inequality it inherits from the K-12 education system, then magnifies and projects that inequality into the labor market and society at large. In theory, the education system is colorblind; but, in fact, it is racially polarized and exacerbates the intergenerational reproduction of white racial privilege." It goes on to emphasize that there is good news, which is that access to higher education over the past 15 years has increased, particulary for minority students. The problem is that, "despite increasing access, there are two separate postsecondary pathways: one for whites and another for Hispanics and African Americans. Whites have captured most of the enrollment growth at the 468 most selective and well-funded four-year colleges, while African Americans and Hispanics have captured most of the enrollment growth at the increasingly overcrowded and under-resourced open-access two- and four-year colleges." Moreover, these different enrollment patterns are not fully explained by different college readiness. Rather, even highly qualified minorities disproportionately enroll in less selective or open access colleges, whereas whites, across the spectrum, disproportionately attend selective colleges. This differential enrollment is also troubling because graduation rates are much lower at less selective and open access colleges. In fact, highly qualified students graduate at a lower rate from these collleges than do less qualified students who attend highly selective colleges. In other words, this so-called "mismatch," whereby minorities attend colleges and universities that do not match their academic potential, decreases their chance of educational success and life opportunities.
Tuesday, July 30, 2013
We are now just past half-way through a two week trial over school segregation in Pitt County, North Carolina. The case was brought five years ago by a group of African American parents to stop a student reassignment plan that they asserted increased racial segregation in in the district's schools. Plaintiffs' claims hinge on the fact that the school district was never declared unitary and is still under court order to desegregate. The plantiffs are represented by the UNC Center for Civil Rights. The school district counters that it is and has been unitary and, thus, is not prohibited from implementing assignment plans that increase racial imbalance (as long as they are not intentionally discriminatory).
A few hundred districts in the country are still under some sort of court order, but few are actively litigated and even fewer produce plaintiff victories. The rarity in the case arises from plaintiffs' recent victories. In 2009, the district court declined the opportunity to declare the schools unitary, but in an interesting turn did not demand any specific rase conscious remedial action by the district. Instead, it allowed that it would be sufficient if the district implemented race neutral measures. My reading was that the court was concerned that an appellate court would reverse its finding that the schools were unitary (or that the district court would soon find the schools unitary itself), in which case the best chance of the pre-unitary status student assignment plan complying with the post-unitary status requirements of Parents Involved in Community Schools v. Seattle would be if the plan was race neutral to begin with.
The school district apparently took this as licence to do whatever it wanted and ignore the racial impact of its new student assignment plan. And when the plaintiffs' objected, the district court did nothing to stop the district, reasoning that the plaintiffs were seeking a preliminary injunction and the burden rested on plaintiffs. Plaintiffs appealed and the Fourth Circuit in Everett v. Pitt County Bd. of Educ., 678 F.3d 281 (4th Cir. 2012), gave them a rare school desegregation win, holding that, until a school district is declared unitary, the burden rests on the school district to demonstrate that it is carrying out its affirmative duty to desegregate and that racial imbalances are not a vestige of segregation. This, of course, has been the law for decades, but it is not often that we see courts hold schools to this standard.
For more on the case, see here.
Friday, July 26, 2013
Forty years after school desegregation began in Sumter County, SC, it has come to an end. Last week, a district court in Randall v. Sumter School Dist. No. 2, 2013 WL 3786344 (D.S.C. 2013), declared the school district unitary. The court found that 16 of the district's 26 schools fell within plus or minus 20% of the districts overall racial demographics (61.45% African American, 31.99% white, and 6.56% other). Of the 10 schools more than 20 percent outside of this variance, seven were what the court called racially integrated, meaning that htey were just over half white and about 40 percent or so African American. The three remaining imbalanced schools, however, were almost entirely minority, with less than 10 percent white students. The court found that these significantly imbalanced schools were a result of demographic shifts rather than the vestiges of discrimination.
This is a hard case on which to form a strong opinion without knowing a lot more about the facts on the ground. With that said, I can't help but offer a few observations. First, the level of racial balance in most of the district's schools is to be commended. I have seen a lot worse backsliding in districts that were under heavy court supervision. Sumter has not been under heavy supervision as of late and, thus, this balance is a testament to the school board and the community. Yet to be clear, twenty percent is a wider variance than many districts courts have required, and it does not necessarily represent significant racial balance. For instance, in a 50% African Amerian-50% White school district, half of the schools could be 70% African American and 30% White, while the other half of the schools were 70% white and 30% African American. I would find it hard to call that a racially balanced distirct.
Thursday, July 25, 2013
This summer has had a string of school choice news, including the Arkansas race based transfer case, the Louisiana voucher case, Title I funding portability proposals, and the expansion of Florida's vouchers. Missouri has now added itself to the list. Missouri has a statute that permits students who attend school districts that loose their accreditation to transfer to another school district. Pursuant to the statute, a parent sought to transfer her two children from the St. Louis School District to the neighboring Clayton School District. The statute also provides that the unaccredited school district shall pay the tuition and transportation for the students to attend the other district.
Wednesday, July 24, 2013
By now, many of you have probably heard or read about the new study on social mobility, which is said to be the most comprehenisve study of it kind to date in the United States. The headline of most stories is the role that zipcodes play in social mobility. In short, where a child grows up will have a significant impact on his or her ability to climb out of poverty or stay in the middle class. The more important question, however, is why geography matters. The research examined various factors in the attempt to isolate the differing mobility rates and found that:
Although tax policies may account for some of the variation in outcomes across areas, much variation remained to be explained. . . . [W]e found significant correlations between intergenerational mobility and income inequality, economic and racial residential segregation, measures of K-12 school quality (such as test scores and high school dropout rates), social capital indices, and measures of family structure (such as the . . . fraction of single parents in an area). In particular, areas with a smaller middle class had lower rates of upward mobility. In contrast, a high concentration of income in the top 1% was not highly correlated with mobility patterns. Areas in which low income individuals were residentially segregated from middle income individuals were also particularly likely to have low rates of upward mobility. The quality of the K-12 school system also appears to be correlated with mobility: areas with higher test scores (controlling for income levels), lower dropout rates, and higher spending per student in schools had higher rates of upward mobility. Finally, some of the strongest predictors of upward mobility are correlates of social capital and family structure. For instance, high upward mobility areas tended to have higher fractions of religious individuals and fewer children raised by single parents. Each of these correlations remained strong even after controlling for measures of tax expenditures. Likewise, local tax policies remain correlated with mobility after controlling for these other factors.
A New York Times story reported that "Lawrence Katz, a labor economist who did not work on the project, said he was struck by the fact that areas with high levels of income mobility were also those that established high school earliest and have long had strong school systems."
If I read the study's underlying data correctly, the local high school dropout rate has three times the effect on social mobility as does tax policy, and local achievement test scores have two and a half times the effect on social mobility. Although not as heavily reported, the level of local segregation also had a significant impact on mobility. But to be clear, the data showed family structure (divorce rate, single parents, and teen mothers) to have the largest impact on social mobility, though only slightly higher than the drop out rate.
My only quibble with the study is its labels. According to the study's authors, chivement test scores and drop out rates are proxies for school quality. As school finance litigation and educational social science have demonstrated, those factors are relevant but school quality cannot be reduced to them. High achievement test scores are also largely a function of underlying student demographics and segregation. It is not clear to me how the current study controlled for this. If it didn't control for it, then achievement test scores alone don't really signify school quality. If it did control for underlying factors, then the study may have a point.
I am more inclined to recognize drop out rates as having more singular importance (even though the same issues of underlying demographics are relevant). After all, if a school cannot keep its students enrolled and graduate them, I believe the school is not doing all that it should. A better school would do more. With that said, high school drop out rates speak more directly to the need for drop out prevention programs than general school improvement programs. So again, I would hesitate to treat drop out rates as a general measure of school quality.
Regardless, the bottom line still seems to be that schools matter. They are the most important public lever we have for creating opportunity. And other policies, like taxes, look like red herrings. They certainly can ease the pain on struggling families, but they are insufficient to fundamentally change children's futures.
Tuesday, July 16, 2013
Some of you may have caught the edweek story last week discussing the upcoming uncertainties regarding the merger of the city and county school districts in Memphis. Daniel Kiel, University of Memphis School of Law, has been part of the process since the beginning and quoted in the story. He was kind enough to share the following overview with us:
These are interesting times for public education in Memphis, to say the least. A merger of a 100,000-student urban district and a 45,000-student suburban district that has been two years in the making was completed earlier this month and the two districts now operate together as Shelby County Schools. While the details of this transition are fascinating in many respects, the dynamic that stands out for me is that the landscape seems to be both looking into the future and being tugged into the past at the same time.
The merged district will be the largest player in an increasingly decentralized system of schools. A growing number of charter schools along with the state’s Achievement School District will serve thousands of students in the area, essentially removing those students from the merged district. This, of course, is not unique to Memphis. However, the disruption of the merger allowed for the imaging of an administrative structure that seeks to maximize cooperation among school operators – district, charter, ASD – in order to both share best practices and control the area’s education spending. As more urban districts seek to find the right balance between centralization and school-level autonomy, the proposed (and admittedly untested) model could be a look into the future. [full disclosure- I served on the commission charged with planning the transition]
However, even as the merger was being planned, a parallel effort to create municipal districts in several suburban municipalities within the county emerged. Though that was stalled briefly by a federal court decision, changes in state law seem to have the cleared the path for new districts to open as early as fall 2014. The push for municipal districts has uncovered emotions and arguments about local control, educational equity, and race that not been this prominent since the busing crisis of the early 1970s, though they have likely always been there. On the immediate horizon are the opening of the school year in a month as well as votes in the suburban municipalities about whether to pursue the new districts. In the long term, the experience could provide a case study for a large scale attempt at contemporary education reform.
Professor Kiel also has two forthcoming articles on the merger. I will share them as they become available.
Wednesday, July 10, 2013
IN LIGHT OF FISHER: WHY THE BLACK IMMIGRANTS SHOULD BE DISTINGUISED FROM ASCENDANT BLACKS FOR ADMISSIONS PUROPOSES
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials and Black Immigrants (anyone with a foreign-born black parent) will soon constitute the overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. Earlier this week, I discussed how the changes in the way the Department of Education requires educational institutions to collect and report racial and ethnic data that went into effect in the fall of 2010 requires a new discussion about how to treat Black Multiracials in the admissions process. In this one, I want to argue that differences between Black Immigrants and Ascendant Blacks (those with two native-born parents who were considered black as defined by the one-drop rule) means that these two groups should not be treated alike for purposes of affirmative action.
In 1960, there were only 125,000 foreign-born blacks, who made up 0.7 percent of the black population in the U.S. In 2010, however, there were almost 3,600,000 of them and they made up 8.8 percent of the black population. Foreign-born blacks also have about 1 million U. S.-born children.
Black Immigrants share the commonality of being descendants of Africa with Ascendant Blacks. Nevertheless, there are a number of very important economic, social and cultural differences between the two groups. To begin with, the family income of foreign-born blacks is about 25 percent higher than that of native blacks. In addition, foreign-born blacks are far more likely to have college degrees than native blacks. Indeed, Africans are almost two and half times more likely to have college degrees than native blacks. The largest differences between Black Immigrants and Ascendant Blacks, however, may be in their socio-cultural experiences.
In Justice O’Connor’s opinion in Grutter, she explained why it was possible for colleges and universities to consider race and ethnicity in the admissions process. She stated:
“[j]ust as growing up in a particular region or having particular professional experiences is
likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. . . . By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”
Clearly, the history of discrimination that justifies the use of racial classifications that O’Connor referred to was that which took place in the United States. This seems obvious. After all, no one seriously contends that selective higher education programs could justify affirmative action in the United States to target the effects of oppression in other parts of the world, including, for example, the exploitation of Koreans in Japan, the negative effects of untouchability on Dalits in India, or British imperialism in Africa or the New World. Thus, it is the experiences of individuals from underrepresented minority backgrounds derived from our nation’s struggle with racial inequality that explain why race and ethnicity can be considered. These experiences also explain why these groups are likely underrepresented in the first place.
There is no question that foreign-born blacks have their negative experiences with racism in the United States. Nevertheless, having grown up and matured in their countries of origin, Black Immigrants who come to the U.S. as adults do not have extensive years of experiencing the impact of the historical discrimination encountered by blacks in the United States. In immigrating, Adult Black Immigrants encounter conflicting sociological forces. They come to a land with a long history of voluntary immigration. Yet, they also come to a place where their race places them at the bottom of a racial hierarchy.
As voluntary immigrants, Adult Black Immigrants tend to have a more optimistic and positive outlook on their conditions in American society than Ascendant Blacks. For many Adult Black Immigrants, the racism and discrimination they encounter is part of cost to obtain the benefits they accrue from choosing to come to the U.S. Since most foreign-born blacks come from countries with substantial black majorities, race does not play an important role in their psychological and emotional development. Coming from countries with substantial black majorities also means that Adult Black Immigrants will be use to seeing blacks wield significant economic, political and educational authority. This may provide them with the empowering expectation that success in society is not tied to race, an idea that Ascendant Blacks with their experience growing up in the United States would find difficult to embrace. Since Adult Black Immigrants mature in their home country, many of them do not bring with them to the United States the strong desire to engage in the fight against the racial injustice here. This is something that was plain to me during my travels through South Africa, where I was the foreign-born black immigrant. While I was subjected to the same race discrimination that black South Africans encountered, I had a huge emotional and psychological distance from the experience of racial oppression there.
The term “Black Immigrants,” includes foreign-born blacks who immigrated as adults, as well as those who immigrated as minors and the children of foreign-born blacks. These latter two groups come of age in the United States and, thus, are exposed to more of the historic experience of being an underrepresented minority with a history of discrimination than their parents. Nevertheless, their foreign-born parent(s) and their foreign heritage are likely to have a very important impact on their experiences of race in the United States. Simply put, it is wrong to equate the experience of history of discrimination in the United States that Ascendant Blacks have undergone with that which Black Immigrants experience. To do so, devalues the experiences of Ascendant Blacks.
Last year, plaintiffs challenged an Arkansas statute that permitted students to transfer to schools outside their district, but limited the students who could transfer. In particular, the statute indicated that:
No student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's race except in the circumstances set forth in subdivisions (f)(2) and (3) of this section
In Teague ex rel. T.T. v. Arkansas Bd. of Educ., 873 F.Supp.2d 1055 (W.D.Ark. 2012), the court applied strict scrutiny and found that the state had a compelling interest in avoiding racial isolation but that the statute was not narrowly tailored. Thus, it struck down the statute.
The legislature then amended the statute. The new statute effectively permits all students to tranfer, but allows districts that are under desegregation orders to opt out of the transfer program, so as to prevent transfers from interfering with their other obligations under law. Another set of plaintiffs have challenged this new statute. Defendants filed a motion to dismiss based on standing and jurisdiction, which the court granted in part and denied in part. Stevenson v. Blytheville School Dist. No. 5, 2013 WL 3324050 (E.D.Ark. 2013). The court did not address any substantive issues, but for the meantime has permitted the case to move forward.
Tuesday, July 9, 2013
IN LIGHT OF THE FISHER DECISION: WHY THE ADMISSIONS PROSPECTS OF BLACK MULTIRACIALS MUST BE ADDRESSED
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials (those individuals with one non-black and one black parent, as defined by the one-drop rule) and Black Immigrants will soon constitute the
overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. I suggested that in light of the Supreme Court’s decision in Fisher, now is the time to turn our attention to this issue. In this blog, I want to discuss how conditions have changed with regard to the admissions process of Black Multiracials that makes it imperative to have such a
discussion, regardless of how the ultimate treatment should be worked out.
Race is a socially constructed concept. Nowhere is this more obvious than when dealing with the historical issue of the treatment of mixed-race individuals with some African ancestry in the United States. The current recognition of Black Multiracials as distinct from other blacks is an emerging and relatively recent phenomenon. For virtually the entire 20th century, the one-drop rule determined who was black. As late as the 1960 census, there was no separate category for Latinos. They were classified based on their race, not their ethnicity. Thus, at the time that affirmative action policies were being formulated, 99.4% of Americans were considered either black or white. The one drop rule allowed everyone in American society to know virtually any person’s
race based on their physical appearance. As a result, race was a socially ascribed trait, not a characteristic that resulted from self-identification. As long as American society socially constructed race in this way, regardless of the feelings of mixed-race blacks, simply put, there were no Black Multiracials.
During the late 1980s and early 1990s, a multiracial movement developed that sought to add a separate “multiracial” category to all state and federal forms. According to Kim Williams who
studied this movement, most of the leaders were white women married to black men who did not feel that it was right to identify their children as black. In response to these complaints, in 1997, the federal government adopted new regulations for the collection and reporting of racial and ethnic data (1997 Standards). The 1997 Standards specified that self-identification is the preferred method to determine a person’s race. While the government rejected the inclusion of a “multiracial” category, it did requires that those collecting racial and ethnic data use forms that provide individuals with the opportunity to answer whether they are Hispanic/Latino and then to designate all of the racial categories that apply to them from a list that must include American Indian or Alaska Native; Asian American; Black or African American; Native Hawaiian or Other Pacific Islander; and White. The 2000 and 2010 censuses were conducted consistent with these requirements.
The 1997 Standards also require that other federal agencies adopt new regulations for collecting and reporting racial/ethnic data that comply with it. The Department of Education (DOE) corresponding regulations went into effect in the fall of 2010 (the Guidance). Under the Guidance, individuals who indicate that they are Hispanic/Latino are reported to the DOE as such, regardless of which racial categories they check. Non-Hispanic/Latinos who indicate black and at least one other racial category are included in a new “Two or More Races” category, along with other multiracials. In other words, self-identified Black Multiracials are no longer counted by educational institutions as black. The federal government has abandoned the one-drop rule and forced public and private educational institutions to do so as well.
The 1997 Standards and the Guidance reject the notion that race is a socially ascribed characteristic. Rather they make self-identification the preferred means in which to determine a
person’s race. This change alone may not have been enough to allow individuals with some black ancestry to truly self-identify their race. However, the substantial influx of immigrants of color from Asia, Latin America, the Middle East and North Africa, over the past 50 years altered the complexion and the facial features of American society. In 1960, those who were neither black nor white made up less than 1 percent of the American population. In 2010, they made up almost 24 percent, almost double the percentage of black population. As a result of this new wave of immigrants, the application of the one-drop rule no longer provides a reliable approach to
determine the race of a large number of those who used to be socially ascribed as black. With respect to racial identity, as the 21st century unfolds blacks with lighter skin complexions and racially ambiguous features increasingly encounter the question from others, “what are you?” Thus, the massive new immigration of people of color from the rest of the world helped to
enhance the ability of Black Multiracials to self-identify as multiracial as opposed to black..
As we move beyond the Supreme Court’s decision in Fisher, for purposes of affirmative action it is not whether Black Multiracials self-identify as black or with all of their racial categories that
is significant. What is important is the demise of the one-drop rule, coupled with the ability of individuals to self-identify their race. These developments have created the social reality that Black Multiracials can now choose a racial identity other than “Black or African American.” Because Black Multiracials can choose their racial identity, admissions policies and procedures based on their inability to do so, like affirmative action, need to be adjusted to take into account this new reality.
Tuesday, July 2, 2013
Over the past five years, I have mentioned the issue several times. I have discussed this problem with officials of the American Bar Association, the American Association of Law Schools and the Law School Admissions Council. See here. In each of those discussions, I have emphatically speculated that if current trends continue, first and second generation black immigrants (Black Immigrants) and mixed-race blacks (Black Multiracials) will come to make up 80% of the black students in most law schools throughout the country by the year 2020. While all of the officials agreed that this was a distinct possibility, the most disconcerting thing is that none of them believed that anything should be done about it!
Many of us who are staunch supporters of public education do so because of our strong belief that education is the best (or perhaps, the only) way to address the problems of large numbers of poor, urban minority blacks. While we advocate for improvements in K-12 urban education, we see this as only one part of the pipeline necessary to achieve the ultimate goal of a large percentage of these students graduating from four year colleges and universities and, for many, successfully completing graduate programs. For educational pipeline believers, affirmative action is essential. It allows us to know that students most victimized by our society’s history of racism can graduate from selective higher education programs. It is with this preface that I want to discuss the changing racial and ethnic ancestries of blacks attending selective higher education programs.
We were first introduced to this issue by Harvard professors Lani Guiner and Henry Louis Gates in the same month that the Supreme Court decided Grutter. They pointed out that Black Immigrants and Black Multiracials comprised two-thirds of Harvard’s black undergraduate population. Following the “Harvard Revelation,” a 2005 article in Diverse Issues in Higher Education noted the findings of a Princeton study of the “black” students who in 1999 entered twenty-eight selective colleges and universities, essentially the same ones William Bowen and Derek Bok examined in Shape of the River. The study revealed that 41 percent of these black students were either Black Multiracials or Black Immigrants. A follow up study concentrated just on the presence of Black Immigrants. It discovered that Black Immigrants made up 35.6 percent of the blacks in the ten most selective institutions and 40.6 percent in the four Ivy League schools. According to a 2005 statement by Dr. Michael T. Nettles, Vice President for Policy Evaluation and Research at the Educational Testing Service, “[i]f Blacks are typically 5 percent and 6 percent of the population at elite colleges, then the representation of native United States born African-Americans might be closer to 3 percent.” In regards to Black Multiracials, a 2007 study of 31 of the most elite private colleges and universities in the country that compose the Consortium on Financing Higher Education disclosed that Black Multiracials made up 23 percent of the black students at those institutions. To demonstrate how widespread the changing racial ancestry of blacks benefiting from affirmative action has become, statistics from the admissions office of Indiana University-Bloomington showed that Black Multiracials comprised 18.7 percent of the black students in the combined incoming freshman classes for the fall of 2010 and 2011.
No matter how over represented the above evidence suggests Black Multiracials and Black Immigrants are among black students, those numbers understate the problem. The percentages of both groups among blacks of college age will skyrocket between 2010 and 2020. For example, the percentage of blacks in the country who are foreign-born has increased from 1.1 percent in 1970 to 4.9 percent in 1990 to 8.8 percent in 2010. According to the 2010 census, at that time the percentage of mixed-race blacks among blacks age 15 to 19 was 6.5 percent. However, their percentage increases to 13.7 percent for those between the ages of 5 and 9. Thus, if current enrollment trends continue, well before the expiration of the 25 year window for affirmative action provided by Justice O’Connor in her opinion in Grutter, a virtual prerequisite for blacks attending selective higher education programs will be that they must have either a foreign-born black or non-black parent.
The problem I am alluding to is not that Black Immigrants and Black Multiracials benefit from affirmative action. Surely, a strong argument can be made that they should receive some positive considerations in the admissions process. The problem is that selective higher education institutions, including our own law schools, are in the process of excluding the black students with two native-born parents who were considered black, as defined by no longer applicable one-drop rule. I call this racial/ethnic group of blacks, “Ascendants” because of this group’s ascendency out of slavery and segregation. The Ascendants were the ones responsible for affirmative action. But, for them, the Fisher decision creates no sigh of relief.
One of the conceptual problems with the concern about the disappearance of Ascendants I raise is that it requires us to draw racial and ethnic distinctions among blacks. Historically, American society has largely been oblivious to such distinctions. In addition, over the past 100 years the African-American Community has been very hostile to efforts to divide the Community. In the following two entries, I want to discuss why it now makes sense to draw distinctions between Black Immigrants, Black Multiracials, and Ascendant Blacks for the limited purposes of affirmative action.
Monday, July 1, 2013
In addition to the article Professor Davis posted last week on the blog (For-Profits and the Market Paradox), Omari Simmons, Wake Forest University School of Law, justed posted his new article on higher education access barriers for low-income students to ssrn. The article is fortchoming in the Arizona State Law Journal. In his abstract, he writes:
Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K-12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the Morrill Act. The heightened focus on higher education attainment for low-SES students is also quite timely given the nation’s slow economic growth and the Supreme Court’s imminent decision in Fisher v. Texas. The prospect of the Supreme Court overturning its decision in Grutter v. Bollinger has prompted observers to consider the use of class as an alternative to the use of race in college admissions and beyond. In this legal, economic, and political environment, reforms targeting higher education attainment for low-SES students take on added significance. In response to these challenges, this Article proposes a more comprehensive K-16 framework to guide future reforms targeting higher education attainment for low-SES students. These reforms include: a rigorous K-12 education for a greater number of students; a transitional bridge between secondary school and higher education; and college-level reforms from federal, state, and institutional actors; and a presidential commission exclusively targeting higher education equity.
Dowload the full article here.--db
Richard Rothstein, Senior Fellow at Chief Justice Earl Warren Institute on Law and Social Policy University of California (Berkeley) School of Law, asked that we share his article on Fisher v. Texas.
What the Fisher Decision Ignores: "Diversity " Should Not Replace Integration as Our Goal
The Supreme Court yesterday did not, for the time being, prevent the University of Texas from continuing its affirmative action plan.
Nonetheless, like the voting rights decision issued today, the Fisher case decision was another setback for racial justice. For one thing, the Court invited another challenge after the case again goes through the lower courts. There, the University will have to prove that it could find no other way to get a diverse student body without explicitly considering race, and will have to prove that it used “good faith” in use of race to achieve diversity. If challengers can show that the University’s examination of applicants’ overall qualifications is really a cover for enrolling black and other minority students—for example, if it is more intent on having black students than violin players, or students from different parts of the state, or other “diverse” factors—affirmative action will be in trouble.
The University and its civil rights group allies have, from an understandable tactical need to defend affirmative action by whatever means are available, accepted a Supreme Court framework that undermines equal rights in the long run.
That framework is “diversity.” According to it, we pursue affirmative action not to remedy the legacy of slavery, Jim Crow, and continuing discrimination, not because equal opportunity for African Americans is an end in itself, but because
- having a diverse student body improves the educational experience for white students, and because
- it trains corporate and military leaders who will be more effective if they look like and have a better understanding of those they lead.
Forgotten has been the idea that African Americans are underrepresented at the University of Texas and at other elite institutions because, as Justice Ginsburg put it in her lonely dissent, they suffer from “the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.” In reality, affirmative action is necessary not to make white students more comfortable in the presence of blacks, but to remedy those effects. . . .
Rothstein's article goes on to discuss the extent of segregation in schools and the need to address it. You can find the full article here.
Wednesday, June 26, 2013
Long term civil rights stalwart and professor, John Brittain, was nice enough to share his break down of Fisher v. Texas with us today. As many of you know, John has been involved in one way or another with almost every major education case dealing with race over the past few decades. Nearest to my heart, he helped start and finish the ground breaking litigation in Sheff v. O'Niell, in which the Connecticut Supreme Court found that de facto school segregation violates the state constitution. As the former chief counsel to the Lawyers' Committee for Civil Rights, he also played a crucial role in various other affirmative actin and education cases. After the Lawyers' Committee, he returned to the academy, but with his free time continues to play an important role in litigation and policy.
John's takeaway point from the decision in Fisher are as follows:
- The decision reaffirms the holistic use of race in the admissions process, at least until the Fifth Circuit Court of Appeals rules on the case after remand. See Gratz v. Bollinger, 539 U. S. 244 (2003), and Grutter v. Bollinger, 539 U. S. 306 (2003). The Supreme Court punted the case back to the lower courts on a technicality, deliberately sidestepping the constitutionality of affirmative action. The value of expanding opportunity for all with a fair shot to attend colleges and universities lives on.
- At stake was how much should courts afford deference to universities in reviewing affirmative action policies? It is indeed still “proper” for courts to grant “some … deference” to the university’s “educational judgment” “that a diverse student body” “is essential” to “serv[ing] its educational goals.” Fisher, slip op. at 9 (internal citations omitted) (emphasis added). Under the strict scrutiny standard, a government agency must show that the use of race satisfied a compelling interest (the goals), and the means to accomplish the goals were narrowly tailored with the least restrictive methods.
- The lower court erred in “not apply[ing] the correct standard of strict scrutiny.” Fisher, slip op. at 1-2. Once the university “establishe[s] that its goal of diversity is consistent with strict scrutiny, it has the burden of proving that the “means chosen by the [u]niversity … are [necessary, and] narrowly tailored to that goal.” Here on the mean part of the strict scrutiny test, “the [u]niversity receives no deference” and “it is for the courts to ensure that [this burden has been met].” Fisher, slip op. at 10 (internal quotation marks omitted) (emphasis added).
- While the university does not have to “exhaust … every conceivable race-neutral alternative,” the courts cannot simply adopt the “university’s good faith consideration of workable race-neutral alternatives.” Fisher, slip op. at 10 (internal quotation marks omitted). “The … court must … be satisfied that no [available] workable race-neutral” means would accomplish the university’s objectives. “If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race.” Fisher, slip op. at 11 (internal quotation marks and citations omitted).
- Although in the past the Court has declared that strict scrutiny “must not be strict in theory, but fatal in fact,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995), the Court coined an additional moniker in Fisher, that it “must not be strict in theory but feeble in fact.” Fisher, slip op. at 13 (emphasis added).
- Justice Scalia concurred because the constitutionality of affirmative action was not at issue. Fisher, slip op. at 1 (Scalia, J., concurring).
- Justice Thomas concurred but also added in a twenty-page opinion on the merits of the case why the government’s use of race-based classifications in education is always prohibited. Fisher, slip op. at passim (Thomas, J., concurring).
- Justice Ginsburg dissented and would have upheld the lower court’s decision – accepting the university’s good faith in its goals for diversity and insofar that race-neutral means would not work – as satisfying the commands of Justice Powell in Bakke and the Court in Grutter. Fisher, slip op. at passim (Ginsburg, J., dissenting).
- The Court could have simply held months ago, as it concluded on June 24, 2013, “that the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further proceedings in light of Grutter, Gratz and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).”
As most know by know, the Supreme Court struck down section 4 of the Voting Rights Act yesterday in Shelby County v. Holder. That section's formula defines which states and jurisdictions must submit voting changes to the Department of Justice for preclearance. The preclearance process ensures that potentially discriminatory changes in voting laws are reviewed and revised before they go into effect. As a result of the Court's decision, there are no longer any jurisdictions subject to preclearance.
This is a big deal for many school districts. School board elections and racial equity go hand in hand. In fact, the effectiveness of school desegregation orders was often as much a product of school board elections as it was court orders. Likewise, current efforts at voluntary desegregation and diversity easily shift from one school board election cycle to the next, as seen so obviously during the last 6 years of elections in Raliegh, NC. The saving grace in so many of these instances was that changes in school board election procedures (poling places, single member districts v. at large districts, district boundaries) in covered jurisdictions (mostly the South) had to be cleared through DOJ. This outside check was instrumental in allowing African Americans and other minorities to get a fair shot at electing the school board, which meant fair representation on the board. That check is now gone. To be clear, citizens still have the right to sue under section 2 of the Voting Rights Act, but the burden of demonstrating a violation now falls on individual, whereas the burden of proving fairness once fell on the state and local jurisdictions. Only time will tell what this means for desegregation, diversity and voluntary integration in the South, but I know it makes a lot of people nervous.
Monday, June 24, 2013
As indicated in my first post, the Court neither upheld nor struck down the Texas plan, but rather said the lower court was too deferential in reviewing Texas' admission policy. Thus, the lower cout must take another more rigorous review of the plan. Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action. But many, if not most, affirmative action advocates would have expected much worse, particularly if they knew Kennedy would write the majority opinion. With Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Kennedy.
The final opinion, moreover, was not even close. It was 7-1 in overturning the court of appeals and sending it back. That Sotomayor and Breyer signed onto the majority opinion, and only Ginsberg dissented, sends a different message than one would have expected with Kennedy in the majority: Fisher is not the end of affirmative action in higher education. Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion. This suggests a lot of jockeying behind close doors to save affirmative action in higher education, but in an indirect way.
My best guess in reading the opinion is that initial vote as to whether to overrule Grutter (even though the Court says that was not before it) and/or strike down the Texas plan on its facts was 4-4, with Kennedy in the dissent, which was my best case scenario heading into the case. This 4-4 initial vote is a relatively solid thesis now. In the case of a 4-4 tie, the lower court would have been upheld and nothing at all would have changed. This clearly would have incensed the 4 most conservative members of the Court. And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either. My hope and intuition was that he would hate the end of affirmative action more than the continuation of the status quo. But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position: join the majority and bring 2 dissenting liberals with him, so that he could write the majority. This had the effect of putting Scalia and Thomas in the disgruntled concurring camp, rather than squarely in control of the majority.
And that is how sausage and Supreme Court opinions are made (I assume, since I know nothing of either).
This morning the Supreme Court decided Fisher v. University of Texas, a case dealing with the consideration of race in higher education admissions. The Court neither struck down nor upheld the Texas admissions policy. Instead, it held that the lower court afforded the University too much deference in reviewing this policy. Thus, the Court remanded the case for further, more stringent review. As a result, the Court did not get into the facts of whether Texas' plan is constitutional and did not offer any new specific guidelines for other universities. The Court, at best, expressed one reocurring them: that the consideration of race must be "necessary," meaning that the University's goals could not be achieved with other reasonably available race-neutral alternatives. This, however, is not new.
So what does all of this mean? First, the ability to consider race in university admissions survives. Most notably, the Court refrained from overturning Grutter v. Bollinger and said it took Grutter, along with Gratz v. Bollinger and Bakke v. Regents, "as given." Second, the Fisher case is not over and may well make it back to the Supreme Court at a future date.
The Court's opinion is here.
Thursday, June 13, 2013
Last week I posted on legislative efforts to eliminate virtual charters in some states and asked whether the gig is up. My skepticism toward virtual charters still persists given the potential perverse incentives, but Aaron Saiger's scholarship (here) gives me pause. He suggests that virtual charters or virtual schooling in general might play an important integrative function. I hadn't thought fully through that possibility until read I today's story from edweek about large urban school districts creating their own virtual schools. The story indicates that the point of these virtual schools is not to help students exit the public school system but to bring those who have already left back into it. White flight in urban centers has long been a serious precipitant of school segregation.
The missing link in the current story of urban virtual schools is an explanation of how these students will be drawn back into physical public schools or online environments that offer the benefits of diversity. If they can, then they seem worthy of exploration. If they are just attempts to retain a bigger portion of state education funds by keeping more students on the books, it is hard to distinguish them from the state's virtual schools or virtual charters.