Education Law Prof Blog

Ensuring Racial Equality – from Classrooms to Bathrooms – Depends on Federal Regulations Trump Wants to Roll Back

Preventing discrimination in the classroom. Shutterstock

Derek W. Black, University of South Carolina

The Trump administration is considering eliminating one of the federal government’s most basic tools for preventing racial discrimination.

When the government runs or funds programs, those programs are obligated to ensure that everyone gets equal access and treatment. This duty comes from something called “disparate impact regulations.” These regulations require the programs to pay careful attention to whether their policies cause racial disparities.

From my perspective as a scholar of discrimination law, abandoning these regulations would be a major departure from the federal government’s mission since the 1960s of ensuring racial equality.

Continue reading

Federal Data Confirms Earlier Suspicions About Increased Racial Harassment, Begging a Set of New Questions

A 2016 survey by the Southern Poverty Law Center of teachers found:

•More than two-thirds of the teachers reported that students—mainly immigrants, children of immigrants and Muslims—have expressed concerns or fears about what might happen to them or their families after the election.
•More than half have seen an increase in uncivil political discourse.
•More than one-third have observed an increase in anti-Muslim or anti-immigrant sentiment.
•More than 40 percent are hesitant to teach about the election.

Rebecca Klein, at Huffington Post, decided to dig a little deeper and asked those charged with resolving these issues for any data they had.  She offered this summary of the response from the Office for Civil Rights at the Department Education:

The U.S. Department of Education’s civil rights division saw a significant increase in the number of complaints it received regarding racial harassment in schools, including post-secondary institutions, in 2017, according to data the department provided to HuffPost. The increase represents the biggest rise in this category since at least 2009, the earliest consecutive year for which we could find publicly reported numbers in this category.

The number of racial harassment discrimination complaints the department’s civil rights division receives has ebbed and flowed over the last nine years. It did not receive more than 600 complaints until fiscal year 2017, when the number climbed to 675, a nearly 25 percent increase from the previous year. Previously, the number had bounced between a low of 362 and a high of 577. 

. . . .

In general, grievances regarding discrimination related to race and national origin appear to have mostly held steady between 2016 and 2017, per documents related to the department’s budget request released last week. But within that category, harassment complaints underwent a specific leap. Other types of complaints that involve race or national origin might cover disproportionate disciplining of minority students or segregation.

This data begs a few questions.  First, does the Office for Civil Rights have the staff to properly investigate the claims?  The prior Assistant Secretary, Catherine Lhamon, requested more staff in her last report to Congress.  She did not receive them.  The new administration, in contrast, has been shrinking the Office's footprint.  Second, what is the Office learning from these harassment claims?  The uptick in complaints does not necessarily translate into more violations of the law.  But given this significant increase, the Office's next report to Congress (or another public report) should explain whether this increase in complaints involves any increase in the seriousness of the underlying harassment.  Likewise, it should explain whether the percentage of valid complaints has remained steady. 

Finally, to the extent those answers suggest a staffing problem or more serious harassment problems, the Office should at the very least consider issuing policy guidance to assist schools in addressing these problems.  The complaints the Office receives are but a sliver of the incidents that occur in schools.  Policy guidance is crucial in assisting schools in proactive steps that can prevent formal problems and complaints from escalating.  Unfortunately, policy guidance has been an area in which the new administration has retreated.  Whatever the merits of other shifts, racial harassment is one of the most problematic violations of Title VI.  Its effect on the individual student and the overall school community cannot be underestimated.

Racist Speech, Student Protest, and Institutional Responses

When students first began protesting the fact that names like Woodrow Wilson appear on a building at Princeton and William Saunders on a building at UNC, I had my misgivings.  Yes, the students were correct about the history--these individuals have racist legacies--but the details of the buildings matter.  Was the name placed there to honor the racist legacy?  Was it put there because the family actually donated the money for the building?  Was it because of the alum's political fame?  Is there even a continuing message being sent if no one knows who the person is?

These building names cannot be conflated with confederate memorials, at least not on a wholesale level.  The confederate memorials raise far clearer problems.  The motivation for them has most often been racist and their continuing symbolism can be harmful. Thus, removing them implicates a different analysis.

Nonetheless, I eventually recognized that I am probably too old to have an opinion on what young people do or do not protest about.  I will probably get it wrong.  It is the youth who push us to see the world anew--more clearly--not purported wise elders.  "Wise elders" should offer perspective, but forceful direction is probably more a hindrance than help. 

In retrospect, we should now see that those protesting students elevated a conversation that would have been missed without them.  They have forced a reevaluation of numerous assumptions on main campus.  We owe them thanks.  And we probably owe them deference in the future.

I offer that as backdrop to a student protest at Lake Oswego.  Local news reports that:

Lake Oswego Junior High students staged a walkout at 9 a.m. Monday in response to racist behavior at the school. An estimated 200 students took part in the walkout that lasted a little over and hour. Students could be heard cheering at speeches mode over a megaphone.

More than a week ago, three white students handed a note to another student who is African-American. The note had the N-word on it. The Lake Oswego School District told the boy's mother that two of the three students received "in-school suspensions," but she said not enough is being done.

The mother, Jennifer Cook, said her son has heard the N-word at the school before. She said she was proud of the students for doing the walkout.

"I think it’s incredible, I think it’s great to see the support that the children have for him and their response to this is going to be way better than the school’s response," said Jennifer Cook just prior to the walkout.

The school sent an email message to parents saying they are aware of student plans to walk out Monday. They said they support the students' right to express their opinions and hope to provide a safe environment.

"There will be additional adults including our counseling team on hand, and outside groups will not be allowed on campus," the message said.

According to the Lake Oswego Review, a Facebook post on their site that in part outlined what the mother described as the punishment to the students was shared over 1,800 times.

Sources have told that newspaper that the student who actually passed the note received a one day suspenstion. Two other students were given detentions on campus.

According to the paper, the school and the district office was peppered with angry emails and phone calls. Many were angry over the punishment and or demanded a "zero-tolerance" policy.

The district has issued the following statement on what it intends to do next.

I imagine there a lot of proud parents in Oswego.  I know I would be, but the call for "zero-tolerance" toward the offending students gives me far more concern than the call to take names off of buildings two years ago.  Zero tolerance can be defined in many ways.  It can mean not tolerating a particular type of behavior under any circumstances, but that definition can leave upon the question of what the particular punishment will be.   It could be minor or serious punishment.  Or zero tolerance can mean not tolerating the behavior at all and mandating a severe punishment, such as suspension or expulsion, when it occurs. 

It seems the angry emails to the district in Oswego are calling for the later.  In-school-suspension, to them, is not harsh enough.  

That is a hard position to countenance.  Save situations when a student has intentionally brought a gun to school with a bad purpose in mind or is selling drugs, zero tolerance policies that automatically exclude students from school are a bad idea, if not unconstitutional.  First, they do not actually stop the misbehavior in the long run.  They often make it worse. Second, they impose an enormous harm on the student.  Third, they ignore circumstances that are really important--the age of the child, the seriousness of the behavior, culpability, intent, etc.  When schools ignore those things, they act irrationally and do not do anyone any good.

Continue reading

Court Finds That Arizona's Decision to Bar Mexican-American Studies Was Motivated by Intentional Discrimination

Yesterday, a federal district court held that Arizona's decision to ban Mexican-American studies and the local district's enforcement of that ban were motivated by intentional discrimination.  The court also held that restricting students access to that information violated the First Amendment.  

As a matter of substance, the case marks a major victory for multicultural studies and places clear limits on partisan and other illegitimate attacks on them.  As a matter of Fourteenth Amendment and First Amendment doctrine and analysis, the case is also noteworthy for professors.  The opinion is a textbook example of basic constitutional analysis.  Anyone looking to bone up on how to apply intentional discrimination and free speech doctrine should give it a read.  Assuming the case stands on appeal, it will make a nice addition to education law casebooks or, in a modified form, a handout for class exercise.

First, the court recites the basic Arlington Heights standard for proving intentional discrimination in violation of the Fourteenth Amendment.  The case is now in its 40th anniversary and somehow stood the test of time (notwithstanding how hard to makes it for plaintiffs to win discrimination cases).  Under Arlington Heights, plaintiffs must show the defendant acted with a "discriminatory purpose."  They can show this through circumstantial evidence, including: 1) the discriminatory impact of the decision; "2) the historical background of the decision; 3) the sequence of events leading up to the challenged action; 4) the defendant's departures from normal procedures or substantive conclusions; and 5) the relevant legislative or administrative history."  

As on a law exam, the task here is to avoid looking just for smoking guns and instead walk through each factor in a "sensitive inquiry."  The details can add up.  That is exactly what the district court did, by the end of its opinion, it had amassed so much circumstantial evidence that the case would seem to stand even if the court botched a few facts.  While the court pointed to direct evidence of racial animus in the case, it spent most of its time examining the more subtle details.  It pointed out that the history of the program was to counteract the harmful effects of past segregation.  It identified two procedural irregularities in how the Arizona statute was passed: a) the statute was targeted at a particular district rather than a statewide issue and b) other measures could have been used to deal with the purported problem with the program.  

Next, the court examined the legislative history, inferring illegitimate motivation by many of the statute's proponents.  Of particular interest was the court's willingness to look at "code words"--words that on their face might sound neutral, but in context could be used to convey racial animus.  For instance, "Raza," "un-American," "radical," "communist," and "Aztlan" were all derogatory terms aimed at Mexican Americans during the debate over the program.  These terms were not just attempts to win the debate, but were demeaning and racially charged.  A less careful court could have dismissed their important.  The court revealed, for instance, that the state superintendent had used "Raza" as a substitute for Mexican American, stating the program was "Raza studies for the Raza kids."

With these motivations laid bare, the First Amendment analysis was easy.  The court recognized that the state and its schools have the authority to control the curriculum, but there is a major exception: when the control is exercised for partisan or illicit reasons rather than pedagogical concerns.  As the Supreme Court held in Island Trees School District v. Pico, partisan motivations render an otherwise permissible curricular decision unconstitutional.  Applying that standard, the trial court found that:

The stated policy of A.R.S. § 15-112 is to reduce racism in schools, see A.R.S. § 15-111, which is a legitimate pedagogical objective. The theory of plaintiffs’ First Amendment claim is that reducing racism is only a pretextual objective, and that the statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons.

The Court concludes that plaintiffs have proven their First Amendment claim because both enactment and enforcement were motivated by racial animus.

Get the full opinion here: Download 468 Order and Opinion

Deliberate Indifference to a Hostile Environment: A Call for Attorneys to Protect Vulnerable Students By Nancy Willard

Public school districts violate federal civil rights laws when discriminatory harassment of students based on race, color, national origin, sex, or disability is sufficiently serious to create a hostile environment that is interfering with the students’ rights to receive an education, and school staff encourage, tolerate, do not adequately address, or ignore such harassment.

An unacceptably high number of students in public schools in the U.S. are suffering from daily bullying and harassment by their peers--and sometimes school staff. This emotional, and sometimes physical, abuse is known to have a life long harmful impact and to significantly interfere with the targeted students’ ability to receive an education.

While bullying and harassment of students has received a higher degree of focus in recent years, there is no evidence of any significant decrease in the number of students reporting being bullied and harassed. In fact, in some states, it appears that the approach promoted by the state’s anti-bullying statute is having an opposite effect.

For example, in the state of New York, the much-touted Dignity Act for All Students (DASA) was enacted in 2010. On the Youth Risk Behavior Survey in 2011, 18% of New York students reported being bullied. By 2015, this rate had increased to 21%. Under DASA, schools are required to make annual public reports of the number of bullying incidents--a black-mark on the school. In the 2015-16 school year, 71% of New York City schools reported zero bullying incidents.

The approach incorporated into state statutes has created the misperception that all educators must do is have rules in place against bullying, tell students to report, and have the principal investigate, respond with discipline if appropriate, and keep records. This approach has been set into place at the same time that schools are under strong pressure to reduce disciplinary consequences. Thus, there is strong pressure on principals and staff to avoid ever considering hurtful acts of students to constitute “bullying.”

Students and their parents do not know how to retain data and report these incidents in accord with the tight definition in the statutes. Students who are being treated badly, sometimes on a daily basis, are too often told they are overreacting and there is nothing the school can or will do. It is no wonder that the majority of students who are harassed have often gotten to the point where they will not report these incidents. They know from experience that there is nothing the school will do--or reporting could make things far worse.

Under federal civil rights regulations, if a hostile environment is known to exist, schools are required to both investigate and intervene in the specific instances of which they have knowledge and to take necessary steps to correct the hostile environment that underlies the hurtful behavior.

An excellent publication is by the U.S. Department of Education’s Office for Civil Rights (OCR), entitled Protecting Students from Harassment and Hate Crime: A Guide for Schools (now out of date due to changes in the approach to gender role stereotyping). OCR did an excellent job in explaining the importance of a focus on school climate and outlining recommended steps a school should take.

The National School Board Association (NSBA), in an endorsement statement, was in full agreement:

Research indicates that creating a supportive school climate is the most important step in preventing harassment. A school can have policies and procedures, but these alone will not prevent harassment. This is the kind of good preventive work the field needs to help ensure that schools provide a safe and welcome environment for all students.

The leading Supreme Court case addressing student-on-student harassment is Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999). In this case, SCOTUS stated:

Schools can be held financially liable if they are deliberately indifferent to known acts of student-on-student harassment and the harasser is under the school’s authority so long as the harassment is so severe, pervasive, and objectionably offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

In an early case, Vance v. Spencer Cnty. Pub. Sch. Dist. 231 F.3d 253, 261 (6th Cir. 2000), the Sixth Circuit enunciated helpful guidelines:

Although no particular response is required, and although the school district is not required to eradicate all sexual harassment, the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.

Unfortunately, a recent trend in the case law has been to dismiss cases upon a showing that every time the student reported, the principal investigated and applied discipline, if deemed appropriate. Stiles v. Grainger County, Tenn. MiLW, No. 01-91360 (6th Circuit, March 25, 2016) and S.B. v. Harford County, No. 15-1474 (4th Circuit, April 8, 2016).

In these two cases, despite evidence of ongoing, extensive harassment, which the students occasionally reported, all the principals did was respond to the specific reported instances. The interventions by the principals were clearly ineffective in stopping the ongoing harassment and no comprehensive steps were taken to correct the hostile environment that clearly existed.

At this time, the NSBA has switched from its prior clear statement of the ineffectiveness of sole reliance on policies and procedures and now argues that if the principal responds in any way to the incidents the harassed student has bravely reported, the school should not be considered deliberately indifferent or be held liable.

In ongoing harassment situations, this level of response by the school principal will generally be ineffective in correcting the specific hurtful situations and does nothing to correct the hostile environment that is fueling the ongoing harassment. In these kinds of cases, greater attention must be paid to the failure of the principals to follow up to ensure effectiveness of their interventions, as well as their failure to engage the school community in comprehensive efforts to correct the evident hostile environment.

The regulations and evidence that raises the importance for a more comprehensive approach, that incorporates ongoing assessment of effectiveness, is readily available in the civil rights regulations and OCR guidance, as well as current academic research and guidance for schools--along with the above NSBA quote.

Unfortunately, at this point in time, there appears to be no other mechanism to exert influence on schools to take the concerns of discriminatory harassment more seriously than increased successful litigation against school districts.

Nancy Willard, M.S., J.D., has advanced degrees in special education and law. For over the last decade, she has focused her professional attention on concerns of digital safety and bullying. She has prepared a 90-minute video training for attorneys, which may, depending on the state, qualify for CLE credit. More information is available here. 

New Head of Office for Civil Rights Signals Entirely Newly Direction

The past four years of the U.S. Department of Education' Office for Civil Rights may have been its strongest in decades.  Under Catherine Lhamon, the Office's work expanded substantially.  The Office published a number of new guidance documents that made it clear that it would enforce the law, including disparate impact.  The symbolism of these documents, along with growing faith in the Office, likely explains increases in complaints to the Department.  Unfortunately, the new Acting Assistant Secretary for the Department, Candice Jackson, signals that the coming years may look far different.  Jackson was formally named the Deputy Assistant Secretary, which does not require Senate confirmation, and will serve as acting Assistant Secretary until the administration formally nominates someone to that position and the person is confirmed by the Senate.

Pro Publica has published an article on Jackson's background.  It appears that the administration is following the game plan we saw with DeVos, appointing someone with limited experience, but strong ideological leanings.  Pro Publica describes her background this way:

Although her limited background in civil rights law makes it difficult to infer her positions on specific issues, Jackson’s writings during and after college suggest she’s likely to steer one of the Education Department’s most important — and controversial — branches in a different direction than her predecessors. A longtime anti-Clinton activist and an outspoken conservative-turned-libertarian, she has denounced feminism and race-based preferences. She’s also written favorably about, and helped edit a book by, an economist who decried both compulsory education and the landmark Civil Rights Act of 1964.

Jackson’s inexperience, along with speculation that Secretary of Education Betsy DeVos will roll back civil rights enforcement, lead some observers to wonder whether Jackson, like several other Trump administration appointees, lacks sympathy for the traditional mission of the office she’s been chosen to lead.

Her appointment “doesn’t leave me with a feeling of confidence with where the administration might be going,” said Theodore Shaw, director of the Center for Civil Rights at the University of North Carolina School of Law, who led Barack Obama’s transition team for civil rights at the Department of Justice.

“I hope that she’s not going to be an adversary to the civil rights community and I hope that the administration is going to enforce civil rights laws and represent the best interests of those who are affected by civil rights issues.”

 

 

Washington State School District Settles Race Discrimination Suit

Washington State's University Place School District settled a lawsuit filed by three black students who alleged racial discrimination by teachers at Curtis High School, reportedly for $450,000. The student-plaintiffs in the suit alleged in 2015 that they were subjected to racial name-calling by students and discriminatory grading practices and other forms of harassment by teachers and staff. In one instance, one of the students was called racial epithets in the school's hallway, and when he reported the abuse to teachers, he was told that it "would make him stronger." Another student alleged in the lawsuit that when a teacher gave her home address (during a sign language lesson) and students joked that they might egg the teacher's house, the teacher replied that “no one would do that, except for [the plaintiff], because he’s black.” according to court documents. The district denied the allegations in the suit and pointed out that the teacher who made the remark about the black student has resigned from the school. Tacoma's News Tribune reports that just under 10 percent of Curtis High's 1,400 students are black.

Addressing the Recent Increase in Bullying: A Webinar for Parents

On Wednesday, January 11, 2017, the Lawyers’ Committee for Civil Rights Under Law’s Parental Readiness and Empowerment Program (PREP) in partnership with the Center for Safe Schools and the Center for Education Equity will host a free webinar for parents and advocates on school bullying in response to a surge of recent hate crimes and acts of discrimination in schools nationwide.  During the webinar, participants will learn how to recognize and report school bullying as well as how to engage their community and what parents can do. The webinar will take place at 3 p.m. EST in English and at 6 p.m. EST in Spanish. Please RSVP here.  For more details, please see the attached flyer below or visit the website at www.prepparents.org.

El miércoles, 11 de enero, El Programa de Preparación y Capacitación de Padres (PREP por sus siglas en inglés) de El Comité de Abogados Para Los Derechos Civiles Bajo la Ley en colaboración con el Centro para Escuelas Seguras y el Centro para Equidad Educativa ofrecerán un webinario gratuito para padres y defensores acerca del acoso escolar en respuesta a un aumento de recientes crimines de odio y actos de discriminación en las escuelas a nivel nacional. Durante el webinario, los participantes aprenderán cómo reconocer y reportar actos de acoso escolar y también cómo involucrar a su comunidad y lo que pueden hacer los padres. El webinario tendrá lugar a las 3 hora del este en inglés y a las 6 hora del este en español. Por favor inscríbanse aquí. Para más detalles, por favor vean el folleto adjunto o visiten nuestro sitio de web www.prepparents.org  

 

Manhattan U.S. Attorney Sues NYC Department of Education For Discrimination At Pan American Int'l High School

In an unusual action, the Manhattan U.S. Attorney's Office has sued the New York City Department of Education under Title VII for allegedly permitting a high school superintendent and principal to discriminate against the three black teachers employed at Pan American International High School and retaliate against an assistant principal who spoke out against the discrimination. The Manhattan U.S. Attorney's Office has rarely, if ever, brought a race discrimination claim against a school district in recent years. In the office's press release in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456,  U.S. Attorney Preet Bharara said: “It is nearly unthinkable that, in this day and age, one of the largest and most diverse school districts in the United States would allow racial discrimination and retaliation to flourish." Cribbed from the U.S. Attorney's press release: The Government alleges that during the 2012-2013 school year, the New York City DOE permitted Pan American Principal Minerva Zanca and Superintendent Juan Mendez to make derogatory racial comments about the school's only black teachers, such as saying that one teacher “looked like a gorilla in a sweater,” commented about one's “big lips quivering” during a meeting, and and that Zanca stated that she had difficulty suppressing her amusement at another teacher who reminded her of a Tropicana commercial where a black man “with those same lips” danced down a supermarket aisle. Several of these comments were made to or in the presence of the school's assistant principal, Anthony Riccardo. Zanca later accused Riccardo of “sabotaging her plan” when he refused to give one of the black teachers an unsatisfactory rating for a lesson that he had not yet seen. In response, Zanca called school security to have Riccardo removed from the premises. The Riccardo incident is part of the DOJ's retaliation grounds. The complaint in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456 (filed 6/9/2016) may be viewed here.

 

ACLU and Lambda Legal Challenge N.C.'s Anti-LGBT Law; State AG Says His Office Will Not Defend It

Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.

United Nations’ Working Group Raises Concerns About Treatment of African Americans in Education

The United Nations’ Working Group of Experts on People of African Descent has released a statement regarding its recent visit to the United States.  The visit heavily concentrated on the criminal justice system's treatment of African Americans, but it raised concerns regarding education several times.  For instance, it wrote:

 

• The persistent gap in almost all the human development indicators, such as life expectancy, income and wealth, level of education and even food security, among African Americans and the rest of the US population, reflects the level of structural discrimination that creates de facto barriers for people of African descent to fully exercise their human rights.
• The cumulative impact of racially-motivated discrimination faced by African Americans in the enjoyment of their right to education, health, housing and employment, among other economic, social, cultural and environmental rights, has had serious consequences for their overall well-being. Racial discrimination continues to be systemic and rooted in an economic model that denies development to the poorest African American communities. More than ten million (26%) of African Americans remain mired in poverty and almost half of them (12%) live in what is known as “deep poverty”. The Working Group is particularly concerned about the fact that 48% of the households headed by African American women live under the poverty line.
• The zip code can determine to some extent the future development of young African Americans. People from Black poor neighbourhoods are more likely to face lower education achievements, more exposure to violence and crime, a tense interaction with the police, less employment opportunities, environmental degradation and low life expectancy rates as well.

Continue reading

OCR Finds Melrose Schools Failed to Adequately Respond to Teacher's Statement That a Student Should Not Act Like He Is on the "Plantation"

The Office for Civil Rights has completed its investigation of racial harassment in Melrose Public Schools in Massachusetts and entered into a settlement agreement with the school system.  The investigation arose out of allegations that a teacher at Melrose Veterans Memorial Middle School had reprimanded an African American student and made a reference to "the plantation" or needing to "come back to the plantation."  When meeting with the administration later, the teacher indicated she could not remember exactly what she said, but it was something to the effect of "don't talk to me like you're on a plantation."  Of special note is also the fact that the student was attending Melrose as part of Boston's METCO program.  The program allows students from the city to attend suburban schools, with the purpose being to increase diversity.

OCR investigated the matter and confirmed the incident.  It found that the administration did not document the incident, but the did arrange a meeting in which the teacher would apologize to the student.  In the meeting, the teacher "apologized for any misunderstanding that may have upset the Student, and she also told the Student that he should not feel subservient to her or demean himself, and described the Student's 'coming [teacher]' comment as akin to a remark that a 'slave' would make to a 'master.'"  

Continue reading

Parents to Sue School over Racially Motivated Attack

Parents of a Long Island teenager indicate that they will sue Valley Stream School District for failing to prevent an attack on their son--an attack that they say was racially motivated. Their son was apparently hospitalized and  needed 32 stitches to close a wound on his head.  Their attorney said that the student suffered "a concussion, a skull fracture that required an emergency craniotomy; which means they basically had to relieve the pressure and the pain that was building up on top of his brain.”  To bolster their claim, they also point out that that their son was attacked two years earlier while at school.

News outlets report that the aggressor plead guilty to a misdemeanor charge in the most recent assault.  While the severe injuries and the misdemeanor charge certainly lend sympathy to the parents' claims, these types of lawsuits are notoriously hard to win absent special circumstances.  Those circumstances may be present here and the public just is not aware of them, but typically a school is under no duty to "prevent injuries" to students. To sustain a torts claim in most states, a plaintiff would need to show that the district failed to reasonably supervise its students and the bar for reasonable supervision is generally low.  Another option may be to raise a Title VI claim regarding a racially hostile environment.  This claim also has its drawbacks.  The parents would need to show that the district had failed to reasonably respond to racial discrimination of which it had been put on notice.  As long as the district took some sort of progressive response to dealing with the problem, the fact that the student was later more seriously injured would not mean the district had acted unreasonably.

In short, until we see an actual complaint, the case is hard to predict, but plaintiffs will certainly need to show more than just an injury to sustain a claim.  Legal merits aside, however, the story is troubling.

 

 

Newark Settles Civil Rights Complaint Alleging School Closures Were Discriminatory, Reveals Lessons for Other Cases

The Advancement Project and Newark's Parents Unified for Local School Education filed a complaint with the the U.S. Department of Education challenging Newark's school closures. They alleged that the closures disproportionately affected minorities and students with disabilities and violated Title VI of the Civil Rights Act and Title II of the Americans with Disabilities Act.  Newark had closed several traditional public schools during the recession, consolidating them with other traditional public schools and/or replacing them with charters.  OCR found that the closures did, in fact, disproportionately affect minorities and students with disabilities and did not produce the benefits that the district claimed was the basis for the closures in the first instance.  Last week, Newark agreed to take remedial action.  The problem, however, is that school closures cannot reasonably be reversed  and Newark still got what it wanted.  The remedial steps Newark now promises are relatively mild:

• Identify whether any transferring students have suffered any academic deficiencies and take steps to remedy them.
• Determine whether transportation issues affected the ability of transferring students to participate in extracurricular activities.
• Investigate where disabled transferring students were provided with appropriate special education and related aids and services in the receiving school; and if not, whether compensatory or remedial services are necessary.

Nonetheless, advocates saw this as a victory, as they should.  A similar and more aggressive and disproportionate set of closures occurred in D.C. in recent years, but the challenge to them failed.  As my earlier blog post noted:

In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."

There, advocates filed suit in federal district court seeking an injunction, but the court denied their injunction and dismissed the case.  Thus, by rough comparison, the Newark decision is enormous.  

One analytical difference also bears emphasis.  OCR evaluated the efficacy of the closures after the fact, which allowed it to find that the justifications for the closures had proven flawed. In D.C., plaintiffs sought to block the closures earlier and argued, based on social science and expert opinion, that the closures would harm students and not produce the benefits the district claimed to seek.  The district court, however, ignored these prospective claims and assumed the District's goals to be valid.  I have not seen any subsequent research confirming or rejecting plaintiffs factual allegations, but to the extent their factual allegations were not novel, it raises the question of whether courts should take social science and expert opinions more seriously in similar cases.  Newark's experience suggests they should. 

Should New York City Remove Metal Detectors from Its Schools?

The title of this post poses what might sound like an odd question, but a debate over whether to remove  metal detectors from New York City's schools is gaining in prominence for two reasons.  First, the last shooting in a New York City school was in 1992.  Second, metal detectors are not uniform practice in the district.  Rather, they tend to only be used in predominantly minority schools.  The LA Times reports that "almost half of black students are scanned daily, while only 14% of white students are."  From a legal perspective, this disparity on its own does not trigger scrutiny under Title VI regulations (prohibiting disparate impact).  Advocates would also need to demonstrate a harm or denial of benefit.  Many would argue that being asked/forced to walk through a metal detector is is not an invasion of privacy.  It is definitely not an individualized search that would required reasonable suspicion under the Fourth Amendment.  On other hand, the New York City Civil Liberties Union says that "[m]aking students have to go through metal detectors to go to school sends a terrible message to students about where they are headed and how they are viewed."  This sounds like a stigmatic or psychological injury.  This type of injury has, of course, be used in racial discrimination cases since Brown v. Board.  For understandable reasons, however, the current debate is proceeding as a policy debate rather than a legal one.  See here.  That debate is devolving into one of safety versus racial fairness.  That one may be even harder to resolve.

New York Sues Utica School District For Discriminating Against Limited English Proficiency Students

New York Attorney General Eric Schneiderman sued the Utica City School District yesterday for excluding Limited English Proficiency students from the district’s only high school and instead diverting them to unequal educational services that did not allow them to earn a high school diploma. The Attorney General's complaint alleges that the Utica district had a written policy that if district officials perceived an immigrant student to be Limited English Proficiency and over the age of 16, the student was told that he or she was "too old" to enroll at the district's high school, Proctor. In contrast, English-proficient students over age 16 were permitted to enroll at Proctor High School. The Office for Civil Rights' guidance for recent immigrant (“newcomer") programs were intended to be a bridge to general education classrooms and the district's educational services. The district's newcomer program did not meet the OCR guidelines that such programs be voluntary, of limited duration, integrated with the district's services and opportunities for other students, and designed to lead to transitioning to general education. Instead, the complaint alleges, for the past two school years the district outsourced its duty to educate LEP students to third parties, such as a local refugee center, in violation of federal and state civil rights statutes and Plyler v. Doe. The district steered LEP to students to alternatives that were "educational dead-end[s]." The few LEP students who managed to enroll at the high school were assigned to separate extra-curricular activities, lunch rooms, and buses from the rest of Proctor's students. A private class action suit alleging the same discriminatory conduct is pending against the Utica district (Tuyizere, et al. v. Utica City School District, et al. (C.A. No. 15-cv-488 (TJM-TWD)). The Attorney General's complaint in Schneiderman v. Utica City School District seeks declaratory and injunctive relief requiring the district to change its discriminatory policies and agree to corrective oversight. The complaint is here.

Troubling Trends in Religious and Ethnic Based Bullying

A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools.  Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination.  The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit.   Regardless, the report's empirical findings are troubling:

Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.

CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.

There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.

Federal Suit Alleges Racial Discrimination in Arkansas' Takeover of Little Rock School District

The LRSD's overall faculty population is 32% black, but minorities make up a much smaller percentage of the faculty at the district's schools with a majority-white student body.

Cribbed from the Northwest Arkansas Democrat Gazette: Another suit challenging the Arkansas Board of Education's decision to assume control of the Little Rock School District (LRSD) was filed Wednesday, this time in federal court. The federal complaint was filed by parents and students in the Little Rock district and two former school board members who were displaced after the state's January takeover of the district, after which a state court complaint was filed by the same attorney who represents the complainants in the federal case. The federal suit alleges that LRSD's black students suffered racial discrimination after a federal court held that the district had achieved unitary status in 2007, by being disciplined more harshly than their white peers, being educated in inadequate facilities, having their elected school board stripped of power, and by the district's building new schools away from majority-black areas. The complaint also notes that in the LRSD schools with a majority-white student body, the percentage of minority teachers are low (see graphic, courtesy of the Arkansas Times). The suit requests that the school board be restored, that LSRD be enjoined from opening a new school in west Little Rock (a majority-white area), and that the state be enjoined from approving new charter schools until the LRSD has a "constitutionally adequate" facilities plan. The Arkansas Times has posted an unofficial copy of the complaint in Doe v. Arkansas Dept. of Ed. here.

Half of All African American Suspensions and Expulsions Were in Thirteen Southern States

Edward Smith and Shaun Harper have released a new study focusing on suspensions and expulsions in the South.  Most of it is sadly par for the course, but the enormous portion of the nation's suspensions and expulsions that come from the South was shocking.  "Nationally, 1.2 million Black students were suspended from K-12 public schools in a single academic year – 55% of those suspensions occurred in 13 Southern states. Districts in the South also were responsible for 50% of Black student expulsions from public schools in the United States."  The racial disparities also seemed to track consistently higher than than other regions.  "In 132 Southern school districts, Blacks were disproportionately suspended at rates five times or higher than their representation in the student population."  Expulsion disparities were high as well, although slightly lower the suspension disparities.   "In 77 Southern school districts, Blacks were disproportionately expelled at rates five times or higher than their representation in the student population."

The study also includes a nice set of tables with the data for individual school districts, so one can easily see what is occurring in their own community, region, and state.

Get the full report here.

New Study Finds White Teachers Have Far Lower Expectations for Black Students

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.