Office for Civil Rights Releases New Guidance on Resource Equity, Will It Enforce It?

The Office for Civil Rights released a lengthy Dear Colleague letter today that emphasizes the extent of resource inequalities in schools and its legal framework for evaluating whether those inequalities violate Title VI of the Civil Rights Act.

Many States, school districts, and schools across the Nation have faced shrinking budgets that
have made it increasingly difficult to provide the resources necessary to ensure a quality
education for every student. Chronic and widespread racial disparities in access to rigorous
courses, academic programs, and extracurricular activities; stable workforces of effective
teachers, leaders, and support staff; safe and appropriate school buildings and facilities; and
modern technology and high-quality instructional materials further hinder the education of
students of color today.

I would add middle income students to the list of "resources" to which students must have equal access.  Half a century of research confirms that the most important school level determinate of an individual student's academic outcomes is the socio-economic status of the students with whom the student attends school.  Middle income students and families bring social capital and other important resources to schools that heavily affect climate, motivation, and the other tangible resources that the Department references in its letter.  In other words, student assignment policies cause resource inequalities.  Thus, at the local level, student assignment cannot be separated from the conversation of resources, school quality, and academic outcomes.

The timing of the letter is curious, but credit goes to OCR for issuing it.  The important question, however, is whether OCR will actually enforce resource equality.  All the movement on that issue over the past few decades has been in state courts.  The Department of Education has studied the issue by creating a commission, but to my knowledge, has not meaningfully enforced resource equality outside the context of intentional discrimination or desegregation orders.  Regardless, here is OCR's stated disparate impact analysis moving forward:

The first prong of this analysis requires OCR to identify a policy or practice that creates racial
disparities in access to educational resources that are important to the quality of education a
student receives, such that the disparity has an adverse impact on a racially defined group of
students. Relying in part on research, OCR generally considers each of the educational resources discussed in this letter to provide a benefit and that its inequitable allocation tends to be adverse to students who are under-resourced. Additionally, OCR would also consider the school district’s decision to provide a particular resource to students, such as technology or a gifted and talented program, as evidence that the district believes the resource is important.  OCR would expect these resources to be equitably provided . . . .  Furthermore, OCR may consider indicia of the quality of education when determining adverse impact including, but not limited to, student achievement outcomes, graduation and retention-in-grade rates, and student and parent surveys.  Finally, OCR would consider evidence offered by the school district that, in the specific factual context of its schools, a difference in certain resources does not adversely impact the quality of education.

If OCR identifies a policy or practice that creates adverse racial disparities, OCR looks to the
school district for a substantial, legitimate, educational justification for the policy or practice. A district may offer a justification such as a policy of offering a diverse range of educational
programs, of targeting resources to underperforming schools, or of piloting programs in one
school before expanding them to more schools. As another example, school-based budgeting
may allow for different choices at the school level regarding budgeting for resources such as
instructional materials and staff positions, so that different combinations of resources at different schools would not necessarily represent resource inequity among those schools; in such a situation, OCR would investigate, among other things, whether the district’s overall system for allocating funds to schools was equitable. OCR will assess the explanation identified, giving some deference to the expertise of the educators making those decisions. If OCR accepts the justification, OCR will work with the school district to identify whether the district could implement a workable alternative with a less racially disparate impact.

As you will note, it retains a good deal of flexibility for districts, which immediately raises the question of when exactly OCR will step in to limit inequalities.  Only time will tell, but in fairness to and praise of OCR, shortly before and after it released its discipline report, I noticed a discernible uptick in disparate impact enforcement.

Postscript: A reader reminded me that the Report to the Secretary of Education by the Equity and Excellence Commission had included, as a recommendation for addressing resource inequity, that the federal government needed to "[d]evelop policies that give states and school districts incentives to pursue legal and feasible means to promote racially and socioeconomically diverse schools," which begs the question I raised in the above post regarding middle income students as a resource.