Education Law Prof Blog

Court Clarifies Post-Parents Involved Framework and Moves Segregation Case Toward Trial

The district court has issued a new opinion in Lewis v. Ascension Parish Sch. Bd., 2014 WL 556677 (M.D. La. 2014), a case involving allegations that the district discriminated in the rezoning of its schools.  Like Spurlock v. Fox, 716 F.3d 383 (6th Cir.2013) and Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir.2011), the court in Lewis had to navigate the complex post-Parents Involved in Community Schools v. Seattle world, in which racial intent, racial classifications, and racial considerations all of different doctrinal relevance and potentially conflicted precedents.  

The district court in Lewis had previously issued a summary decision granting the school district's motion for summary judgement, which was summarily overturned by the Fifth Circuit and remanded.  The Fifth Circuit had intimated that the Third Circuit's holding in Lower Merion--that Justice Kennedy's opinion in Parents Involved was controlling and that assignment plans are subject to rational basis so long as they do not rely on individual racial classifications--was incorrect.  The Fifth Circuit, however, indicated it need not reach those doctrinal question because certain factual issues needed to be addressed first.

In its new decision on remand, the district court offers what may be the most cogent post-Parents Involved analysis to date.  Plaintiff's basic claim is that the district's new assignment plan segregates African Americans and provides them with unequal educational opportunities.  The district court analyzes his claim based on three distinct doctrines.  First, it asks whether a racial classification was employed in the assignment plan.  If so, Parents Involved's strict scrutiny applies.  Here, the court indicates there is no evidence of a racial classification.  Awareness or consideration of race, alone, are insufficient to trigger strict scrutiny.  Thus, the rational basis approach of Lower Merion would apply.  On the one hand, this holding is another validation of districts' ability to voluntarily desegregate.  On the other hand, the plaintiffs in Lewis were alleging segregation and, thus, this court makes clear that those claims still must meet the higher burden of Village of Arlington Heights v. Metro.

Second, the court analyzes the disparate impact of the plan and the extent to which it potentially gives rise to a claim of intentional discrimination per Arlington Heights.  It finds that the assignment plan does.

Third, the court analyzes the school district's consideration of racial demographics, etc., in drawing the assignment zones.  The court finds that these considerations, along with the impacts, create a triable issue of fact as to whether intent existed.  The Court elaborated:

Here, the School Board also does not contest that the majority of the non-white students in the District are in the East Ascension High School feeder zone and that the majority of the white students in the District are in the Dutchtown High School and St. Amant High School feeder zones. With regard to the factors considered by the School Board when it adopted Option 2f, the School Board does not contest that its members considered race and socioeconomic status when they developed, evaluated, and adopted Option 2f. Unlike the students in Lower Merion, non-white and white students in the District have each been affected by Option 2f (i.e. assigned to different schools). Indeed, the School Board does not contest this fact. Further, the School Board does not contest that Option 2f assigns all students to schools based on their geographic location.

Unlike the court in Lower Merion, this Court is unable to consider all of the evidence presented until after a full trial on the merits. See Lower Merion, 665 F.3d at 542. However, given the evidence presented here, context of this matter, and factors considered by the School Board when it adopted Option 2f, the Court concludes that Varando and Child B are, in fact, similarly situated to white students in the Dutchtown High School and St. Amant High School feeder zones. Accordingly, the School Board's request that the Court dismiss Lewis' remaining Equal Protection claim on this basis is DENIED.

In short, the district court agreed with Lower Merion (and rejected plaintiffs argument for applying strict scrutiny), but found there are sufficient facts on which discriminatory purpose could be inferred (which would trigger strict scrutiny) and set the case for trial.

Lawsuit by NYC Teachers Challenging Discriminatory Impact of Licensing Requirements Moves Forward

The Second Circuit Court of Appeals in Gulino v. Board of Educ. of New York City School Dist. of City of New York, 2014 WL 402286 (2014), affirmed the district court's holding that the school board “'can be subject to Title VII liability for its use of'” the Liberal Arts and Sciences Test (“LAST”) and that the LAST violates Title VII's disparate impact provisions because it was not properly validated."  The district court had also "denied in part the Board's motion to decertify the previously certified class in light of the Supreme Court's intervening decision in Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011); and (3) held that the defense to claims of disparate treatment under Title VII recognized in Ricci v. DeStefano, 557 U.S. 557 (2009), does not apply to claims of disparate impact."  The Court of Appeals also affirmed those holdings.  In short, the lawsuit by African American and Latino teachers, challenging the disparate impact that state testing requirements have on them, will move forward, and they can move forward as a class.  This holding is particularly satisfying for plaintiffs' attorneys, in general, given the barriers presented by Wal-mart and Ricci to class action discrimination claims.  This plaintiffs' class survived both.

Can Anti-Affirmative Action Cases Be Used to Attack Discrimination Against Minorities?

Wendy Parker’s new article, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Fla. L. Rev. 1871 (December 2013), offers a unique perspective on the Court's holding in Parents Involved and other recent race cases.  In particular, she frames the cases in such a way that they could be of benefit to civil rights advocates rather than just hindrances.  Parker argues that the majority in Parents Involved changed the meaning of discrimination from substantive discrimination, which originated with the Warren Court, to process discrimination. Process discrimination occurs “from the process of different treatment, without proof of any attending substantive harm.”  She also emphasizes that Fisher v. Texas was premised on process rather than substantive discrimination.

She theorizes that process discrimination, as an aggressive colorblind principle, can ultimately help plaintiffs of all races in discrimination suits because it allows plaintiffs to more easily show that their race was part of the decision that caused them harm. Prof. Parker illustrates this with a hypothetical:

Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing. Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.

My forthcoming article in a Fisher symposium frames Parents Involved and Fisher as a triumph of form over function, and bears a lot of similarity to Parker's.  What she calls "process" I call "form," and what she call "substance" I call "function."  In other words, we read the cases the same, but put different labels on them.  The current conclusion of my paper, however, takes a different route than Parker.  I conclude that the focus on form benefits whites and disadvantages minorities, primarily because the harm that typically falls on minorities is not explicit.  Instead, the harms minorities suffer are often the result of the way the system functions.  This type of harm escape judicial scrutiny under an analysis heavily weighted toward form.  

Parker's article, however, would indicate that form over function is not all bad.  Minorities just have to embrace the new paradigm and marshall it to their benefit in the same way opponents of affirmative action have--an extremely important and insightful point that I overlooked in my pessimistic analysis of the cases.

An earlier version of the paper is available here on ssrn.

School Principal Alleges He Was Fired for Raising Concerns about Racial Inequities in Schools

Alan Houston, an African-American middle school principal, alleged he was removed from his position in retaliation for racial complaints made by Houston and his wife. Houston alleged this action violated Equal Protection, the First Amendment, and state tort law.  The District Court, in Houston v. Indep. Sch. Dist. No. 89 of Okla. Cnty., 949 F.Supp.2d 1104 (W.D. Okla. 2013), dismissed Houston’s equal protection and state claims, but held that he could amend his equal protection claim.  The equal protection claim was not fully fleshed out, but my reading is that the better claim would have been a Title VI or Title VII complaint, in which he alleged retaliation for his complaints regarding discrimination.  The Supreme Court in Jackson v. Birmingham explicitly recognized such a claim for complaints of gender discrimination under Title IX and lower courts have extended the holding to Title VI.

The First Amendment claim is particularly interesting. The court takes up the Garcetti and Pickering analysis and combines them into a 5-factor test, focusing heavily on whether the speech was of public concern and made in the plaintiff's official capacity.  The district court also applies the  Twombly/Iqbal pleading standards.  In short, the case is a professor's playground for new, controversial and intersecting Supreme Court precedent.  Unfortunately, the district court's opinion is relative short.

 

Eleventh Circuit Upholds Alabama School Finance Scheme Against Charges of Discrimination

Friday, the Eleventh Circuit affirmed the district court's holding in I.L. v. Alabama that the state's school funding was not discriminatory.  The Eleventh Circuit's opinion primarily focuses on issues of jurisdiction and redressibility.  In the final pages of the opinion, the court reaches plaintiffs' central claim: that several provisions of and two amendments to the Alabama Constitution were motivated by discrimination.  In particular, plaintiffs claimed that the caps on education spending and otherwise generally low commitment to education trace back to Alabama's desire to disinvest in education once it realized it would have no choice but to desegregate its schools and their finances.  (Similar claims were also made in a challenge to higher education funding in Knight v. Alabama, 476 F.3d 1219 (11th Cir. 2007)).  The court acknowledged Alabama's sordid history, but indicated it could find no clear error in the the trial court's conclusion that these limitations on education "were a reaction to the increases in property appraisals and assessments mandated by [an earlier case], and the accompanying threat of a tremendous increase in the property taxes paid by land owners."  

This case is unique in its attempt to explicitly link intentional discrimination with dismal school funding.  As of yet, however, no modern plaintiffs have been able to sustain such a claim on a statewide level.  The further in time they are removed from the original "deed" the more skeptical courts tend to become of the claim.

The full opinion is available here.  Thanks to Scott Bauries for alerting me to the opinion.

Unique School Funding and Discrimination Case to Be Filed Friday

The superintendent of Schenectady schools in New York, Laurence Spring, plans to file an administrative complaint with the U.S. Department of Education's Office for Civil Rights (OCR) on Friday. He alleges that his district is receiving $62 million less per year than the state had agreeded to in the school finance litigation from 2007.  Spring concedes that Schenectady is not alone in its budget shortfall, but that by his calculations predominantly white schools are suffering a smaller per pupil shortfall than predominantly minority schools.  In other words, the current funding formula in New York disparately impacts minorities in violation of the Department of Education's Title VI regulations.  Spring emphasizes "This is not a school funding case — it’s an issue of discrimination. . . . New York state implements an educational funding structure which discriminates against students of color, English language learners and students with special needs.”

The substance of the claim--racially disparate funding--is not unique, not even in New York.  The Campaign for Fiscal Equity made the same claim in regard to New York City schools and alleged a Title VI violation alongside of its state constitutional claims in the late 1990s, only to withdraw it after the Supreme Court in Alexander v. Sandoval held that not private right of action exists to enforce disparate impact regulations.  This current claim, however, is distinct in terms of the forum in which it is made and who is making it.  

OCR gets thousands of complaints a year.  Almost all are lodged against a district, with a few against the state.  But individuals and organizations are uniformly (or nearly so) the complainants. In structural terms, this would mean that a party outside of the federal funding agreement, which is the basis for Title VI liability, is asking the federal government to bring a district into compliance with Title VI.  While students are certainly the beneficiaries of the federal money, the point of OCR's administrative process is not to secure remedies for individual complaints (although they may often get one).  The point is to  ensure future compliance by the district.  This fact often frustrates complainants.

The instant case, in contrast, involves one federal funding recipient--the district--alleging claims against another--the state. This does not change the underlying substantive issue--discriminatory funding--but it does change the politics and resolution of that issue.  In effect, the district is what one might call a "super plaintiff" in that it has actual legal standing in the contractual relationship between the federal government and the state and the district (although standing requirements are not predicates to OCR complaints).  The district also has enhanced political standing.  Unlike the single student who might ask OCR to terminate an entire school district or state's federal funding (if the district or state doesn't comply) simply because that student has been harmed, this complaint involves a district making a claim against its own system.  Thus, it potentially could harm its own financial interests.  In that respect, it may have more legitimacy and bargaining power in the eyes of OCR.  On the other hand, the district is asking OCR to intervene in an internal state relationship, not simply the relationship between the federal government and the state or district, which raise federalism concerns.  Fortunately, when discrimination is at issue, those federalism concerns are trumped.

Office for Civil Rights Continues to Press for Racially Equal Access to Advanced Classrooms

Over the past few months, I have noted some major agreements by OCR that have expanded equal access to AP courses and other high level curriculum for minority students.  The most notable was in Lee County, Alabama.  Based on recent news, OCR appears to be continuing to press that issue elsewhere.  News outlets in Michigan recently reported that, at the behest of/in conjunction with OCR, Grand Rapids Public Schools its revising its classroom assignment and admissions policies in an attempt to remedy the under representation of African-American students in AP, honors and college preparatory courses.  The district and OCR hope to reach a settlement agreement soon. The district indicated that the first suggested step is to hire an outside consultant to analyze its data and identify what current barriers to equality might exist.  The distict has already jumped on that task.  Last week, the board approved a contract with the National Equity Project to begin the research.  Kudos to OCR for staying on top of this issue, which research by Jeannie Oakes and others has long shown is the hidden segregation in our schools, but which has an enormous impact on the education children receive.

I am not sure whether it is related to OCR spotlighting the issue, but the New York Times recently reported on several other major school districts that are independently taking the initative to expand access to AP curriculum for poor and minority students.

Students Get Relief in Settlement Agreement over Alabama's Anti-Immigration Bill

Two years after passing a sweeping anti-immigrant bill, Alabama is relenting.  The bill had wide-ranging impacts on immigrant communities (and those interacting with them) that touched on almost every aspect of their lives.  Some may recall that the bill included a measure that required schools to verify the immigration status of newly enrolled K-12 students.  The day after the bill went into effect, news reports indicated that scores of Latino students, in particular, went missing from school.  This included students who were, in fact, citizens or were legally in the country.  I never caught news of these students returning.  Alabama apparently achieved its presumed purpose: to encourage these families to leave the state.  I imagine that few of those uprooted families have intentions of returning to Alabama, but the settlement agreement negotiated by the Southern Poverty Law Center and other civil rights group with the state protects them if they do. The state has agreed to permanently abandon this and other aspects of the bill.  See here for more details.

 

African Americans Separated from Whites and Demeaned in Class, Not Necessarily an Isolated Story

Students from a Dallas Fort Worth School allege that a music teacher separated the African American students from the white students and then demeaned the African American students, including calling them "stupid."  Charges of racism are now being leveled at the teacher.  The district is investigating.  In my attempt to track down the facts-- which are pretty fuzzy--on thisstory, I ran across a few other similar stories.  I would have thought that blatant classroom discrimination segregation would be an isolated story, but two stories suggest it may not be.

The first story relates to another teacher in Minnesota calling African American students "fat" and "stupid" in class.  The families subsequently filed a discrimination lawsuit.  If these were only isolated statements, they would be unlikely to lead to liability under Title VI, but the claim is that the teacher had repeatedly used such language and the school had refused to address it, which makes their claim stronger.

The second story was not malevolent, but even more remarkable.  In 2011, school officials in Lancaster, PA admitted to segregating African American students from the rest of a school's students and then dividing the African American students further by gender. The separation is purportedly brief, lasting just six minutes each day and 20 minutes twice a month.  When brought to light, the officials defended the plan, indicating it was motivated by their desire to address the specific challenges that African American students face and to close the achievement gap.  The school, however, seems to be overlooking its own biases as one of the likely causes of the underachievement of African American students.  That these biases are in play is reinforced by their stereotypical notion that African Americans are the only students in the district with risk factors that need to be singled out and that all African Americans are seriously at risk.  Were these assumptions not below the surface, the total and rigid segregation of African American students would have been illogical to the district.  In short, the district appears to have been well intentioned, but good intentions do not keep bias or discrimination at bay.

Trial Set in School-to-Prison Pipeline Case

Barring a settlement in the next year,  the U.S. Department of Justice will go to trial against the city of Meridian and Lauderdale County in Mississippi.  DOJ argues that  local authorities lock up students for minor infractions like disrespect or vulgar language.  The suit also alleges that students--disproportionately African American and disabled--are routinely detained without probable cause and denied legal counsel.  

DOJ was also set to try the Meridian Public School District, but was able to reach a settlement agreement with the district this past summer.  The district agreed to take various steps to end discrimination in its discipline program.  It is not clear why the criminal justice system is holding out, but if this goes to trial and DOJ wins, which are both big ifs, the case could have a monumental impact in the fight against the pipeline.

 

Commonplace and Brazen Use of Racial Epithets by School Officials: Part II

Two weeks ago, I posted on the resignations of two school officials (the superintendent and athletic director) outside of Philadelphia, stemming from their brazen use of racial epithets in text messages.  New accusations have just arisen from one of the whistle blowers, who says that the new acting superintendent was also involved, at least, tangentially in the texting.  The whistle blower indicates that the texts by the acting superintendent were not racist, but "personally demeaning and uncalled for."  When questioned, the acting superintendent denied that she had received or sent any racist or sexist text messages from the former officials who resigned.

Understandably, the community remains outraged by the acts of its former officials and is dissatisfied with how the school board has handled the situation.  I guess it does not help that it has now come out that the board agreed to a $70,ooo payout in vacation and sick time to the former superintendent when he resigned.  I also doubt the public will be happy when it sees the price tag for the public relations firm the board is purportedly trying to hire to help them get a control on this news story.

Florida Implements a Two-Track Diploma Program: College Ready v. Vocational

Earlier this year, Florida Governor Rick Scott signed a two track diploma system into law: one for students heading to college and others who are not, but hopefully heading into work.  The obvious hope is to do a better job of making high school graduates career ready.  Some believe this will also help some kids who might otherwise drop-out stay in school.  On the one hand, I credit Florida for taking steps to doing what other states are loath to do: deliver quality vocational programs.  States resist because it suggests they are lowering standards and giving up on students.  But as one of my former students, Nina Frant, compellingly argued in The Inadequate Resume of School Education Plans, 51 How. L.J. 819 (2008), many school finance decisions articulating the state's obligation to deliver an adequate education focus equally on college and career readiness.  Yet, the response of almost all education systems has been solely in regard to college readiness.  The practical result, she argues, is that schools do a disservice to and forget about students who are not going to college.  If Florida really intends to serve these otherwise ignored students, it deserves credit for taking on this issue.

On the other hand, separate tracks have long since been a mechanism through which bias and inequality operate.  Individual school administrators' perceptions of who is and is not college material can be as much, if not more, a function of the administrator's bias as the student's ability.  The result is stark racial imbalance in the tracks.  If Florida is serious about improving education through its dual track education, it must be equally serious about eradicating the biases that will surely affect it.

School Superintendent and Athletic Director's Commonplace and Brazen Use of Racial Epithets

In a story so shocking, it is hard to believe, the superintendent and athletic director of a suburb school district outside of Philadelphia were just removed/allowed to resigned from their positions after an IT employee leaked their electronic conversations containing repeated use of the n-word. Coatesville Area School District Superintendent Richard Como and Director of Athletics and Activities Jim Donato apparently had the following to say about their students and teachers:

'All should just have whatever first names they want...then last name is N*****!

'Leroy N*****, Preacher N*****, Night train n*****, clarence n*****, Latoya n*****, Thelma n***** and so on.'

'Great idea! Joe n***** bill n***** snake n***** got a nice ring to it.'

'Could have whole homerooms of n*****!'

'Hahahahaha! Will N***** report to the office, pardon the interruption but will n***** report to nurses office. N***** to lunch now!'

When the superintendent was talking about 23 teachers laid off, Donato asked: 'How many n****** out of 23? Not enough!” The superintendent replied: 'Don't know but think it's only 4-5. At most until last minute rush of firing by Goo of Phoenix and Kamara.' 'Good hangings there,' Donato responded.

The district apparently knew of these communications earlier and tried to cover them up and keep the men employed.  My guess is that the fall-out over these statements themselves is just the tip of the iceberg.  Soon enough, dismissed teachers, disciplined students, and harassed students will begin to comb the policies, records, data and decisions of this district.  When they do, any number of Title VI and Title VII lawsuits might follow.  It is hard to imagine that two men in leadership positions like this were fair and unbiased in the numerous official decisions they have made in past years.  The first in line may be the African American teachers who were laid off.

Policy Reversal on School's Hairstyle Code

Last week, Danielle Holley-Walker's post alerted us to some public schools' racially disparate hairstyle codes and the raging facebook discussion over them.  The story of Tiana Parker in Tulsa, Oklahoma--a student subject to such a policy--made it onto Michelle Martin's Tell Me More on NPR today.  Martin interviewed the father of Tiana, who had been told her dreadlocks were a violation of school policy.  When asked whether the hair policy was racist, the girl's father said no.  His critique was simply that the policy was stupid.  He suggested the school should focus on education instead of things that have no affect on education.   Regardless, after the story caught attention, this particular school district reversed its position and actually apologized to the family. The full transcript and audio of the interview is here.

Bully

This past April, the documentary Bully was released.  Last night, I finally got the chance to watch it.  While the stories in the documentary were not "news" to me, it was very difficult to watch.  The movie follows the lives of five different children in four different states: two, seemingly middle class, white children; a white female, who came out as gay in middle school; an African-American female, who was an honor student and basketball player; and a white middle school boy, who had been born premature and had some physical effects as result (I am not sure whether they would qualify as disabilities).  The two middle class kids had committed suicide.  The white female was subject to physical assault, and verbal harassment by both teaches and students.  The African American female had apparently be subjected to harassment, but her story focuses on her response, which was to bring a gun to school to stop the harassment  (prior to the documentary).  The other white student was subject to severe verbal harassment, threats, and physical violence.

Continue reading

Danielle Holley-Walker on Race, Hairstyles, and School Dress/Appearance Codes

Apparently, facebook was on fire last night with news of the racial impacts of some schools' policies on student hairstyles.  Danielle Holley-Walker shared this with me this morning:

There have been several recent news stories about charter schools that are banning natural hairstyles. Most recently the Deborah Brown Community School on Tulsa, Oklahoma adopted a dress code that said that, "hairstyles such as dreadlocks, afros, mohawks, and other faddish styles are unacceptable."  See here. Last year, the Horizon Science Academy in Lorain, Ohio sent a letter to parents adopting a dress code that prevented students from wearing "Afro
puffs" or "small twisted braids."  See here. Why are some charter schools adopting anti-natural hair policies and what are the legal ramifications for such policies?

 

Racial Harassment Case Moves Forward

The district court in Fennell v. Marion Independent School Dist., 2013 WL 3994649 (W.D. Texas 2013), held that a lawsuit by three African-American minors, alleging that they were subject to numerous racist remarks and disparate treatment based on their race, can move forward.  The facts of the case were extensive, but the court framed the claims around three major incidents. First, plaintiffs alleged that the white athletic director "‘admonished’ [one plaintiff] for her ‘ethnic hairstyles," but did not admonish "'similarly-coiffed white female students who come to school with their multi-toned hair.’” Second, plaintiffs claimed that the white softball coach, “drove away on the softball team bus without Kyra even though Kyra had shown up on time (at 2:55 p.m.) and even though Manley had seen Kyra waving at the stop sign."  Third, plaintiffs alleged that the softball coach  punished Kyra "for signing out for lunch on a game day by denying her the opportunity to play for two games,’" even though white teammates had done the same without recourse.  Fourth, plaintiffs alleged that the softball coach encouraged "two white students to file unsubstantiated criminal charges against Kyana [after] a verbal confrontation [that the coach] did not witness.’" The court held that the first three allegations stated a claim under Title VI, but the fourth did not because plaintiffs failed to plead any facts that would suggest that the coach's alleged actions were racially motivated. Plaintiffs' assertion that “Defendant Manley used these two white girls as ‘cat's paws' to further her racist attitudes towards Kyana’ is an example of the ‘conclusory allegations’ and “unwarranted factual inferences” that the Court need not accept as true. 

 

Racial harassment claims are typically very difficult to sustain.  This case seems distinct in that it is also stylized as disparate treatment and includes the specific facts that were hard to ignore.  This is in contrast to other cases with more egregious allegations, but which do not have facts regarding similarly situated white students who were treated differently.  This instant case also included some other more racially charged allegations, but the court did not frame its analysis around them, rather it focused more squarely on disparate treatment.  In short, it may be easier to sustain a claim based on low-level disparate treatment than it is based on racially charged environments.  Or, at least, this court would seem to see it that way.

        --db

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.

    --Kevin Brown

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 20^th 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 21^st 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.

    --Kevin Brown

Why Fisher Is Irrelevant for the Pre-dominant Racial/Ethnic Group of African Americans

    With the Supreme Court’s decision in Fisher v University of Texas, supporters of affirmative action, like me, can breathe a collective sigh of relief.  While the ultimate impact of the Fisher decision on the University of Texas is still to be determined, at least for the rest of the country where affirmative action exists, it survives for another day.  However, now is the time to turn our attention to issues regarding affirmative action that required silence for the past 16 months.  One of those issues relates to changing racial and ethnic ancestry of blacks on affirmative action, an issue that has existed for over a decade, but one that has not garnered enough attention. 

    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.

    --Kevin Brown