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.

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International Body Confirms It: Our School Segregation Problem Is Dragging Student Achievement Down

Organisation for Economic Co-operation and Development just released its report on education equity and mobility.  The results for the United States aren’t pretty.  For those unfamiliar, the report analyzes massive amount of data and makes international comparisons.  The organization is comprised of representatives from 36 different member countries.

As to the United States, these two findings struck me as particularly poignant:

• Some 51% of disadvantaged students in the United States attend disadvantaged schools, i.e. schools where other students tend to be disadvantaged as well (OECD: 48%; in Finland, only 40% of disadvantaged students attend such schools). However, where disadvantaged students attend advantaged schools, they score 41 points higher, or the equivalent of almost one-and-a-half years of school, than those attending disadvantaged schools (OECD average: 78 points higher; among OECD countries with above-average performance, no performance difference is observed between the two groups of students in Finland, Norway and Poland; Figure 1.1).
• Disparities in student performance related to socio-economic status take root at an early age and widen throughout students’ lives. In the United States, the magnitude of the socioeconomic gap in mathematics achievement at age 10 (as measured by the Trends in International Mathematics and Science Study [TIMSS]) is about 74% as large as the gap observed among 15-year-olds (as measured by PISA), and about 73% as large as the gap in numeracy proficiency among 25-29 year-olds (as measured by the Survey of Adult Skills [PIAAC]; Figure 1.1).

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Claim That Segregation Deprives Students of a Constitutionally Adequate Education Can Proceed, Holds Minnesota Supreme Court by Wendy Lecker

In a groundbreaking decision, the Minnesota Supreme Court has determined that claims of public school segregation brought under the State constitution's education clause are justiciable, that is, they may be adjudicated by the courts. The Court, in its July 25 ruling in Cruz-Guzman v. Minnesota, concluded that a constitutionally adequate education in Minnesota includes ensuring schools are free from segregation by race and socio-economic status.

The plaintiffs in Cruz-Guzman are parents and children enrolled in public schools in Minneapolis and St. Paul, Minnesota. They filed a class action complaint in 2015, contending that school segregation deprived children in these districts of an adequate education under Minnesota's constitution, as well as the guarantee of Equal Protection and Due Process. The plaintiffs are represented by a team led by Daniel Schulman of the Minneapolis law firm, Gray Plant Mooty.

Education Law Center, along with over twenty of the nation's leading education and constitutional law scholars, filed an amicus curae brief in the Minnesota Supreme Court in support of the plaintiffs in this case. Jones Day attorneys Todd Geremia and James Gross, as well as Christina Lindberg, represented ELC and the scholars pro bono.

The State moved to dismiss the case, and, in 2017, the district court denied that motion. However, the court of appeals reversed the decision, holding that claims of State violations of the Minnesota constitution's education guarantee were non-justiciable political questions to be determined solely by the Legislature.

On July 25, the Minnesota Supreme Court forcefully disagreed and reaffirmed the judiciary's role in ensuring the education rights of Minnesota children.

School Segregation in Minneapolis and St. Paul

In its ruling, the Court noted that the complaint set forth "copious data demonstrating a 'high degree of segregation based on race and socioeconomic status' in Minneapolis and Saint Paul public schools." The Court further acknowledged that these segregated schools "have significantly worse academic outcomes in comparison with neighboring schools and suburban school districts."

The plaintiffs identified State policies that cause this segregation, including:

• boundary decisions for school districts and school attendance areas;
• the formation of segregated charter schools;
• the decision to exempt charter schools from desegregation plans;
• the use of federal and state desegregation funds for other purposes;
• the failure to implement effective desegregation remedies; and
• the inequitable allocation of resources.

Justiciability

Minnesota's constitution provides that "it is the duty of the legislature to establish a general and uniform system of public schools." The State argued that because it is the legislature's duty to provide an adequate education, it would violate the separation of powers doctrine for the judiciary to rule on matters of educational adequacy. The State also argued that ruling on these claims would improperly embroil the judiciary in complex educational policy matters. The Supreme Court disagreed.

The Court noted that specific educational policy matters are the province of the legislature, but that fact does not bar courts from determining whether the legislature has fulfilled its obligation under the constitution.

To the contrary, the Court ruled, it would be an abdication of the judiciary's duty if the Court "unquestioningly accep[ted] that whatever the Legislature has chosen to do fulfills the Legislature's duty to provide an adequate education." As the Court noted, the education clause is a mandate to the Legislature, not a grant of power.

The Court further held that to rule that these claims are non-justiciable would be to leave claims under the education clause without a remedy, violating the long-held principle that where there is a right, there is a remedy.

The Court also rejected the notion that the judiciary cannot manage complex education claims. It noted the judicial branch role is to interpret the language of the constitution-and "[w]e will not shy away from our proper role to provide remedies for violations of fundamental rights merely because education is a complex area." The Court pointed out that the plaintiffs are merely asking the Court to declare that the State violated the constitution-they did not ask the Court to dictate to the State how to remedy this violation. Thus, thus the Court need not engage in any improper policy-making.

Definition of Adequacy

The State contended that judicial interpretation of the education article would involve an improper qualitative assessment by the Court of what constitutes an adequate education. The Court agreed that a qualitative assessment is required, but rejected the claim that a judicial definition of adequacy is improper, holding instead that this task is intrinsic to the court's role.

The Court pointed out that, in a previous case, it had ruled that education is a fundamental right under Minnesota's constitution. In this case, the Court elaborated, ruling that "an education that does not equip Minnesotans to discharge their duties as citizens intelligently cannot fulfill the Legislature's duty to provide an adequate education under the Education Clause."

Importantly, the Court emphasized that "[i]t is self-evident that a segregated system of public schools is not 'general,' 'uniform,' 'thorough,' or 'efficient'" under Minnesota's Education Clause.

Districts and Charters Not "Necessary Parties"

The State argued that the case must be dismissed because the districts and charter schools were not joined as "necessary parties." The Court ruled that the mere fact that the districts and charters may be affected by any ruling in this case does not require their joinder. The plaintiffs are seeking relief solely from the State. The Court noted that "many non-parties are bound to be affected by a judicial ruling in an action regarding the constitutionality of state statutes or state action, but they cannot all be required to be a part of the suit."

Next Steps

This Supreme Court decision allows the Cruz-Guzman plaintiffs' claim to proceed to trial. It also provides guidance for the trial court to set qualitative standards against which to assess the evidence of student segregation in the Minneapolis and St. Paul schools. Finally, the Court makes abundantly clear that the courts are available for school children across Minnesota to seek redress of violations of their rights to a constitutionally adequate education which, according to this Court, includes an education that is free from segregation.

Wendy Lecker is a Senior Attorney at Education Law Center

Trump Administration's Reversal of Affirmative Action Guidance Aims to Scare Schools Away from Diversity and Integration

 

The following essay first appeared in USA Today.

 

The Trump administration’s decision to reverse federal guidance on the use of race in education is a scare tactic. It will scare universities away from doing exactly what they can and should do to enroll the most qualified and diverse students. It will scare public school districts away from taking steps to prevent resegregation that is harming all students. The use of race in both contexts is clearly constitutional under existing Supreme Court precedent. The only gray area involves the line between permissible and impermissible uses of race. 

Racial quotas, for instance, have long been unconstitutional, whereas the consideration of race as one among many factors in the pursuit of the educational benefits of diversity has been approved by the court for decades. Similarly, while school districts cannot reassign an individual student based on race alone, districts can consider race in redrawing school attendance zones to promote integration. 

Rather than acknowledge these lines and the fact that some uses of race are appropriate and necessary for improving educational opportunities, the administration will dissuade colleges, universities and school districts from doing anything to promote diversity and integration.

Compelling interest in diversity, or not?

The nation has been here before. When the University of Michigan’s admissions policies were before the Supreme Court in Grutter v. Bollinger in 2003, the Bush administration argued that colleges and universities should not be able to consider race. The court rejected that argument, saying race could be considered narrowly to achieve the educational benefits of a diverse student body.

In 2007 in Parents Involved in Community Schools v. Seattle, the Bush administration made the same argument regarding school districts’ voluntary efforts to integrate. And though it was a 4-1-4 decision, five justices agreed there is a compelling interest in avoiding racial isolation that school districts may pursue. 

Yet the Bush administration still discouraged schools from exercising the discretion the Supreme Court had just afforded them. Shortly after Parents Involved, the Office for Civil Rights at the U.S. Department of Education explicitly encouraged "the use of race-neutral methods for assigning students to elementary and secondary schools.” It never once articulated how a school that wished to pursue integration, but could not achieve it through race-neutral measures, could or should move forward. 

The silence was deafening but the message clear. The federal government would not support districts in the pursuit of integration. Even worse, it might impede their efforts.  Public school districts needed leadership and guidance in an area fraught with complicated politics and legal doctrine. Without it, all but a few districts were entirely scared away from integration even though the court had said they could pursue it. 

That is why civil rights advocates fought so hard for the Obama administration to simply take down the Bush administration guidance. Saying nothing at all was better than saying things that scared educators. The Obama administration went further and replaced the Bush-era policy with an evenly stated explanation of what the Constitution allows schools to do. It did the same for colleges and universities.

If there was any overreach in this area — as the Trump administration claims — it was by the Bush administration when it sought to push a view of the law that had failed before the Supreme Court. The Obama administration corrected that overreach and offered schools the guidance they desperately wanted and needed. That guidance did not require a single institution to do anything it did not want. It merely offered guidelines to those that of their own volition wanted to improve educational opportunities for their students.

In the initial years following Grutter and Parents Involved, uncertainty abounded and the Bush administration exploited it. This time around, schools are in a better position to see Trump’s policy reversal for what it is — an attempt to use executive power to remake the law as it wishes it to be rather than as it is. 

Schools should ignore Trump, heed courts

Since the Obama guidance, the Supreme Court has reaffirmed the educational benefits of diversity as a compelling interest in Fisher v. University of Texas. In Fisher, it also upheld the consideration of race in an admissions program that took numerous factors into consideration and sought to enroll students who achieved against the odds of their personal circumstances. Since the Obama guidance, several courts of appeals have also held that public schools can legitimately consider race in pursuing integration.

In short, the Bush administration policy has failed and the Trump administration is trying to resuscitate it under the rhetoric of an Obama overreach. Our schools must be smart enough to ignore it. As Justice Lewis F. Powell first wrote in 1978 and the Supreme Court repeated in Grutter, “nothing less than the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”

Rescinding Obama guidance does not merely ask schools to achieve diversity and integration through other means, it is a heavy handed suggestion that they abandon the goals of integration and diversity completely.

The New Statewide Challenge to School Segregation in New Jersey Already Has a Lot Going For It

The new lawsuit by the Latino Action Network and New Jersey NAACP takes a bold swing at school segregation and connects.  The facts are both straightforward and damning.  New Jersey’s schools--traditional public schools and charters—are extremely segregated.  The state is responsible for the segregation in both sectors.  And the state constitution prohibits it. 

The million-dollar question is whether they can win.  I believe they can, if courts are brave enough to follow the facts and law where they lead.  Plaintiffs’ cite to Sheff v. O’Neill, a 1996 Connecticut Supreme Court case that ruled in plaintiffs’ favor on similar facts and similar constitutional language.  The New Jersey claim, however, is probably even stronger.

The extent of the racial isolation in New Jersey schools is shocking.  One in four African American students in the state attend a public school that is 99 percent or more minority.  Another one in four attend “public schools in which the percentage of Black and Latino students exceeds 90%.”  Almost two in three to a school that is “80% or more non-White.”  The numbers for Latino students are nearly as bad.  Fifty-nine percent “attend schools that are more than 80% non-White.”

Charter schools aren’t helping.  According to the complaint, they are making matters worse.  Charter schools seem almost exclusively reserved for minority in many instances.  Three out of four charter schools in the state have student enrollments that are less than ten percent white.  They argue that over 80 percent of charter schools have “extreme levels of segregation.”

The common retort to these sorts of facts is that they are the result of private choice and beyond the control of the state.  The complaint acknowledges the role that residential segregation places in school segregation, but reveals that the state cannot wash its hands of the problem for two reasons.  First, state education policy plays an additional causal role in this segregation.  In other words, this level of segregation is not inevitable.  It is a state policy choice.

Second, the state constitution and statutes prohibit this segregation.  So even if the state was simply a passive participant, the state constitution and laws would demand a remedy given the negative educational consequences that flow from this segregation.

As to the state’s causal responsibility, “[t]he State has been complicit in the creation and persistence of school segregation because it has adopted and implemented laws, policies, and

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Advocates File Suit to Challenge Some of the Nation's Most Intense Racial and Socio-economic Segregation in New Jersey, School District Boundaries and Charters Schools Are in the Cross-hairs

This may be the most exciting Brown v. Board of Education anniversary of my adult lifetime.  This morning, I posted an essay lamenting our political will and the challenges to integration.  By lunchtime, I learned of an exciting new lawsuit in New Jersey that challenges school segregation on a statewide basis. Get the complaint here: Download COMPLAINT

The Education Law Center issued this statement on the case:

Education Law Center (ELC) fully supports the lawsuit filed today challenging the intense racial and socio-economic isolation of students in New Jersey’s public school system.

New Jersey’s schools are among the most de facto segregated in the nation, marked by extreme isolation of students of color and white students, along with low-income students, in far too many of the state’s public schools. Our state’s history of circumscribing school districts by municipal boundaries, along with decades-old patterns of residential segregation, are the leading factors contributing to this situation.

The New Jersey Supreme Court has interpreted the constitutional guarantee of a thorough and efficient education to require the State to both provide adequate funding and resources for all schools – including high poverty, racially isolated schools – and remedy racial imbalance in our public schools.  

These are twin and complementary constitutional obligations necessary to ensure every child receives an education in schools that are not only sufficiently funded, but also diverse and inclusive.

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Achieving Brown v. Board's Promise and the Roadblocks Ahead: It's Ultimately a Matter of Public Will

On this 64^th anniversary of Brown v. Board, we should reflect on how far we have to go to realize its promise and the roadblocks that stand in our way.

How far do we have to reach its promise?

The number of intensely racially segregated schools has more than tripled over the last twenty-five years.  In 2013, low-income students became a majority in public school for the first time in history.  The average African American student now attends a school where nearly 70% of his peers are poor—almost double the percentage from 1993.  These segregated schools are also often grossly unequal. The Education Trust reports that “[n]ationally, districts serving the most students of color receive about $1,800, or 13 percent, less per student than districts serving the fewest students of color.”

What are the roadblocks?

Neighborhood Schools.  A substantial portion of school segregation correlates with housing segregation.  So long as housing segregation persists and the neighborhood in which a child lives strictly dictates the school the child will attend, our schools will be segregated.

Discretionary School Assignment Policies.  Our schools are more segregated than our neighborhoods.  So while housing segregation accounts for most of our school segregation, school assignment choices make matters worse in many locations, intentionally zoning in and zoning out certain neighborhoods.  Two recent studies — one by Meredith Richards and another by Tomas Monarrez — find that most districts draw school assignment zones in ways that perpetuate the underlying residential segregation.  As the Brookings Institute explained, for instance, "When we compare Long Island schools to neighborhoods within districts, they look racially balance. The schools in Floral Park-Bellrose Union Free School District, NY, for example, have an overall racial imbalance score of around -1 percent for whites and just under 1 percent for blacks. But if we ignore the district boundaries and define our neighborhoods purely on the basis of the two-mile radius, the results are dramatically different: a racial imbalance score of +42 percent for whites and -23 percent for blacks."

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What Do the War on Teachers, Charter Schools, Vouchers, School Accountability, and Standardized Testing All Have in Common?

What do the war on teachers, charter schools, vouchers, school accountability, and standardized testing all have in common?  They ignore school segregation.  At worst, they each harbor the assumption that their given policy prescription is the magic bullet to educational opportunity—that if we could just solve this one policy problem, educational opportunity would become equal.  At best, they assume that their respective issues are more important to student achievement than other factors.  In other words, poor teaching, a lack of school choice, or unaccountable schools are the primary cause of low student achievement and inequality.

Take teacher tenure.  Education reformers are convinced that eliminating teacher tenure is the necessary first step to any meaningful reform because tenure locks in the status quo. Their argument is simple. If teachers could not hide behind tenure, schools could easily remove the worst teachers and the rest would be motivated to improve. Given what we know about the effects of quality teaching, this, they say, would dramatically improve student outcomes and shrink achievement gaps.

But as I explain in the Constitutional Challenge to Teacher Tenure,

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Two Maps of DC Charter Schools Tell It All: DC's Schools Are Separate and Unequal

These maps of Washington DC's schools and neighborhoods from Andre Perry's new piece at The Hechinger Report say it all.  The first map is color coded by wealth.  The darker the blue the wealthier the neighborhood.  The red stars are private schools and the yellow dots are charters.

I drew a line from the top of this diamond to the bottom.  What you see is incredible stark.  Except for one that straddles the line, all the city's charter schools are to the right of that line.  The city's wealthiest families are densely located to the left of the line.  And while there are certainly a number of private schools in the wealthy areas, there are actually more private schools to the right of the line than the left. 

To be clear, there is less land mass to the left.  But notice the dark blue neighborhoods to the far west.  They don't have a single private or charter school in them.  Look at the dark blue neighborhoods in the north, the only private schools there are on the periphery.

What does this tell us?  It tells us that wealthy neighborhoods in DC don't need alternatives to the public school system.  They are more than happy with the public schools.  Only low income students need alternatives.

To put it more bluntly: Charters are for poor kids.  And private schools are not even for wealthy kids when the public schools are good.

To summarize Julia Burdick-Will, school choice is not a privilege.  The real privilege is not even needing to choose a school.

 

 

The next map swaps family income for race.  It is even more stark and you don't need the red line because the race line speaks for itself.  Light blue shading represents majority white neighborhoods.  The darker blues are majority to predominantly minority.  From this map, charters are only for neighborhoods of color. 

Charter proponents will say these charter schools are a reflection of the fact that public schools are not serving minority students well.  I would second the fact that public schools are not serving minorities well.  But it strikes me as extremely odd that the DC Public School system does not have an trouble serving white and wealthy families.   It is only minority students whom the system struggles to educate.

Rather than demand that DC public schools serve all of its students well, public policy has chopped up the city and turned it into one that is separate and unequal: Good public schools for those who live in majority white neighborhoods and a litany of alternatives to public schools for those who live in majority minority neighborhoods.  The litany of options, however, still don't add up to what kids on the other side of town have.

 --on Twitter @DerekWBlack  

 

Education Protest Broadens Its Wings--This Time It's Revealing Segregation and Inequality

The largest protests of the past month have been over teacher salaries and benefits.  Oklahoma teachers, however, stood tall and highlighted the lack of resources for students as well.  Pictures of worn out text books went viral.  The fact that students were learning from books so old that they previously belonged to the likes of Blake Shelton caught more attention.  But none of them squarely confronted segregation and inequality.  Thus far, they had focused on the fact resources in public education are too low in general.  The truth is that some local communities are wealthy enough that they can shield themselves from states' disinvestment in public education.  The net result of this dynamic is widening inequality.  Wealthy communities can continue to increase resources while poorer ones fall further behind.

Students in DC public schools just went on their own strike (with teachers), highlighting the depths of the effects of segregation and inequality.  Abel McDaniels offers this insightful reporting:

On Wednesday, teachers and students at Anacostia Senior High School in Southeast D.C. walked out to protest the facility’s poor conditions. Teachers said the cafeteria is flooded, no breakfast was served to students, there’s no running water, and bathrooms are broken, so some students were told to use bathrooms in a building three blocks away.
The need for this walkout exemplifies how the district has failed black neighborhoods and their schools. As one student told The Washington Post, “If it was any other school in the District, they would have closed school. That’s unsanitary.”

. . . .

Washington, D.C.’s public school system is just one example of how the impacts of racial segregation in our schools have been ignored. Not long ago, District of Columbia Public Schools (DCPS) was among the country’s lowest-performing districts. In 2011, just 58 percent of students graduated on time. Over the past decade, district and city leaders began an aggressive effort to improve the schools. The heart of this strategy was revamping the human capital system, and the district put in place new strategies to recruit, retain, train, and compensate teachers and leaders. They overhauled the salary structure to dramatically increase starting and mid-career salaries, and they provided strong financial incentives to high-performing teachers who chose to teach in schools serving low-income students. Today, a high-performing teacher at a high-poverty school in DCPS can earn over $130,000.

The district also implemented high-quality, free, universal pre-school and pre-kindergarten throughout the city. They implemented higher academic standards and embraced an annual test aligned to those standards. And they invested millions of dollars in renovating school facilities. The city also tripled the size of its charter sector (from 13 percent of enrollment in 2001 to 44.5 percent in 2016) and designed a unified system that families could use to enroll their children in both district or charter schools. In the years since, DCPS has seen rapid gains on National Assessment of Education Progress scores, earning it the reputation as the nation’s fastest-improving urban district.

However, as the protests today at Anacostia demonstrate, these reforms haven’t supported improved learning conditions across all district schools, in part because many neighborhoods remain highly segregated by race and socioeconomic status. In 2017, 66 percent of “priority schools”—where all students perform poorly—were concentrated in Wards 7 or 8, where most families are Black and low-income. The other 34 percent are spread across the six remaining wards, so other areas of the city, many of which have seen rapid increases in income and gentrification, do not have concentrations of struggling schools.

. . . .

Two elementary schools in Southeast D.C. show how inequities between district schools that serve white, middle class children, and those that serve low-income, Black students play out. Brent Elementary School is in the increasingly fashionable, gentrifying Eastern Market section of Capitol Hill. Two-thirds of the students there are white, and most students live in the surrounding neighborhood. Brent is a “rising” school: Roughly two-thirds of students performed in the highest levels of the PARCC assessment, which is the standardized test aligned to the Common Core State Standards. In a district where 77 percent of students are low-income, just 10 percent of the kids at Brent are.

Orr Elementary School is two miles away, across the river in the Randle Highlands part of Anacostia. Virtually all of Orr’s students are Black, and they are all low-income. In 2017, Just 13 percent of Orr students met grade-level expectations on the PARCC, and the school building itself is in disrepair. Students have had to deal with crumbling ceilings, outdated ventilation systems, problems with toilets, and vermin infestations—despite DC’s hyped investments in school facitlities. Many Orr students will eventually attend Anacostia Senior High, where the students walked out today in protest of similar conditions.

Read his full article here.

--on Twitter: Ed Law Prof Blog @DerekWBlack

How Far Will North Carolina Go to Dismantle Integration and Equality in Its Schools?

North Carolina used to be remarkable for achieving the most integrated and stable schools in the nation.  Save a couple of small exceptions, the state ran its school systems on a county-wide basis, which allowed more integrated, less white flight, and more shared interests in support of public education.  This structure alone made North Carolina stand out.  And this structure helped facilitate some of the lowest racial achievement gaps in the nation in places like Raleigh.  

In the last decade, the state legislature has proven bound and determined to undo it all.  First were budget cuts in excess of 20%.  Next was the enormous growth of charters.  Next was the attempt to eliminate teacher tenure.  Next was a voucher program. Next was a change in the appointment process of statewide education officials, with the point being to deprive the new Democratic governor of the authority to begin reversing regressive policies.  

Now the state is aiming at the lynchpin of equality and integration--the county wide school system structure. Without it, the entire education system could disintegrate into a thousand isolated pockets.  See Pennsylvania's 500-plus school districts and 33% funding gap between districts for a glimpse of how disastrous this can be.  

Bloomberg News offer a short summary of what is on the table in North Carolina:

On April 4, a little-known legislative committee met for the fourth time in six weeks in downtown Raleigh, N.C. Although its name is dull and obscure—the Joint Legislative Study Committee on the Division of Local School Administrative Units—its mission is anything but. The committee is the front line of a legislative push, led by statehouse Republicans, to dismantle North Carolina’s big countywide school districts by allowing rich, often white suburbs to secede.

Though it has no law allowing school secession, North Carolina is the latest Southern state looking to resegregate what’s left of the region’s integrated public schools. More than 60 years after the U.S. Supreme Court’s Brown v. Board of Education ruling made school racial segregation unconstitutional, school secession has been gaining momentum across the South, with richer areas trying to wall their kids and tax dollars off from big districts in Atlanta; Dallas; Little Rock, Ark.; Baton Rouge, La.; Birmingham, Mobile, and Montgomery in Alabama; and Memphis and Chattanooga in Tennessee.

Erika Wilson's article, The New School Segregation, offers a deeper analysis that explains this type of move within a broader context:

The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980’s, schools in the South eventually became among the most desegregated in the country. An important but often under appreciated tool that aided in the fight to desegregate schools in the South was the strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities, and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that crossed racially- and economically-segregated municipal boundary lines.

Affluent and predominantly white suburban municipalities in the South are threatening to reverse this progress. They are doing so by seceding from racially diverse county-based school districts and forming their own predominately white and middle-class school districts. The secessions are grounded in the race-neutral language of localism, or the preference for decentralized governance structures. However, localism in this context is threatening to do what Brown v. Board of Education outlawed: return schools to the days of separate and unequal with the imprimatur of state law.

This Article is the first to examine Southern municipal school district secessions and the localism arguments that their supporters advance to justify them. It argues that localism is being used as a race neutral proxy to create segregated school systems that are immune from legal challenge. It concludes by introducing a normative framework to evaluate the legitimacy of the localism justification for Southern school district secessions specifically, and decentralized public education governance structures more broadly.

--on Twitter: Ed Law Prof Blog @DerekWBlack

New Report Shows Just How Bad Segregation in New Jersey's Charters Is--And Charters Are Still Growing

 

Mark Weber and Julia Sass Rubin have released a new report on charter growth and segregation in New Jersey.  As to growth, they find:

•In the 2017-18 school year, enrollment in New Jersey’s traditional and renaissance charter schools surpassed 53,000 students, accounting for 3.6% of the state’s publicly funded student population.
•Charter enrollment has more than tripled over the last decade.
•Almost half of all New Jersey school districts send students and funding to charter schools. The number of such districts has increased from 198 in 2007-08 to 273 in 2017-18. 
•In the 2017-18 school year, traditional and renaissance charter schools will receive an anticipated $750 million in funding from New Jersey’s school districts, more than four and a half times the $164 million transferred to charter schools a decade ago.

 

Their segregation finds, however, are what really caught my eye.  A decade ago the growth was small enough and the disparities muddled enough that charter school supporters could challenge claims that charters were exacerbating segregation.  Helen Ladd's work in North Carolina shows a clear cut racial segregation trend in North Carolina.  Weber and Rubin have been doing the same in New Jersey.  In a 2014 study, they examined Newark's schools and found that segregation and inequality between Newark’s traditional public schools and charters occur on multiple levels. African Americans were increasingly leaving for charters, while Latinos remained. The Latino population in charters was less than half of that of public schools, while African American enrollment in charters was 60% higher than in public schools. Charters were also enrolling significantly lower percentages of higher cost students than public schools. Charters’ low-income, English language learner, special education, and low-income populations were substantially smaller. In short, the type of segregation that would be decried if it was occurring within public schools was occurring between the traditional and charter sectors.

 

Their, 2018 update looks statewide and finds the same type of problems.  This charter, for instance, shows the difference in special education enrollments between charters and the school districts in which they reside.  in 2016-2017, special education enrollments are 60% higher in the traditional public schools than in charters.

 

 

 

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New Report Blisters North Carolina for Its School Segregation, Pointing to School Assignments and Charter School Growth As Problems

The North Carolina Justice Center has released a study of school segregation trends in the state over the last decade.  Its highest level findings include:

● The number of racially and economically isolated schools has increased
● Districts’ racial distribution is mixed, but economic segregation is on the rise
● Large school districts could be doing much more to integrate their schools
● School district boundaries are still used to maintain segregated school systems
● Charter schools tend to exacerbate segregation

The Center warns that things could get worse soon: "[I]n 2017, the General Assembly has created the Joint Legislative Study Committee on the Division of Local School Administrative Units, which many advocates fear is an attempt to begin the process of re-segregating urban school districts."

This chart shows the increase in the number and percentage of racially and socio-economically isolated schools in the state.  The increase in poverty concentration is the most staggering, nearly doubling.  While some of this increase is attributable to the fact that the percentage of poor students in the state increased by 23 percent, the increase in high poverty schools dwarfs that number.  In other words, school assignment and charter school policies are exacerbating the problem.

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Maryland's Remedy for Segregation in Higher Education Is "Woefully Inadequate," Says Legislative Black Caucus

A decade and a half into the litigation over Maryland's failure to integrate and treat its Historical Black Colleges and Universities (HBCU) fairly, plaintiffs have a new offer on the table.  The state is offering $100 million over the next ten years in increased resources for its HBCUs, which is twice as much as it previously offered.  For those new to the case, the Supreme Court in US v. Fordice considered segregation in the context of higher education and established standards for remedying the problem.  Of course, the fact that enrollment in higher education is voluntary makes the desegregation of higher education different than k-12.  But the simplest way to further integration in higher education is to avoid "program duplication."  Rather than offer programs in agricultural science and hotel management at both an HBCU and a traditionally white institution (TWI), the state could offer agricultural science at the HBCU and hotel management at the TWI.  It can also fund both schools fairly.  If it does so, the thinking is that students will voluntary integrate schools over time. 

In a nutshell, the trial court found that Maryland has done the opposite over the past couple of decades.  It has opened new campuses and expanded others when it could have been expanding the HBCUs.  To make matters worse, it offered new programs at other schools that duplicated the programs already being offered at HBCUs.  It goes without saying that the politics of university funding run high.  Add race and legacies to it and it only gets worse.  It is not clear that the state has made any good faith effort to fix the problem, even after having it brought to the state's attention.

From afar and given the findings by the trial court, $100 million looks like a relatively small offer.  The Maryland Legislative Black Caucus calls it "woefully inadequate."  The Caucaus released this letter:

 

I write in response to your chief legal counsel’s Feb. 7, 2018, letter of information regarding the status of the case — Coalition for Equity and Excellence in Maryland Higher Education Inc. v. Maryland Higher Education Commission et al — and your administration’s goals.

The Maryland Legislative Black Caucus appreciates that correspondence and your desire to end litigation in a manner satisfactory to all parties and to all Marylanders. We share your desire and believe that justice in this matter is long overdue.

Respectfully, your “comprehensive settlement” offer of up to $100 million over ten years is woefully inadequate given the district court’s finding that, in the decades since Brown v. Board of Education, the state has violated the constitutional rights of students at Maryland’s Historically Black Institutions. We note that similar lawsuits in other states such as Mississippi and Alabama have been settled for over $500 million and still have proven inadequate to alleviate longstanding educational discrimination in those states. While supplemental appropriations are necessary and appropriate, any proposed settlement should include the establishment of programmatic niches, academic enhancements, and a reformed process for approving new academic programs, at each HBI. We believe the court’s remedial framework, which would be overseen by a special master, goes a long way towards a truly comprehensive solution.

In sum, the single greatest state-sponsored educational deprivation in Maryland’s history deserves more. Given the proven, multi-generational discrimination against Maryland HBIs and the enormous importance of these institutions to our state, we believe an Amazon HQ2-like commitment is warranted from your administration.

Del. Cheryl D. Glenn
Chair, Legislative Black Caucus of Maryland

Charter Schools: The New Separate-But-Equal?

Joseph Oluwole and Preston Green just posted a proactive new paper to ssrn: Are California's Charter Schools the New Separate-But-Equal "Schools of Excellence," or Are They Worse Than Plessy?.  "This article explains how charter schools provide California's black and Latino communities the opportunity to create modern separate-but-equal schools of excellence. However, they also pose a danger. Outside entities that prioritize financial gain are also seeking to offer charter schools to black and Latino communities. Unfettered charter school expansion spearheaded by these groups could further drain educational resources, thus creating a situation that would be even worse than Plessy v. Ferguson."  They conclude with this:

California’s black and Latino children are being educated in public schools that are both segregated and unequal. In that respect, their experience is similar to the one received by black students in the aftermath of the Plessy case. If handled correctly, charter schools could provide a tool for the state’s black and Latino children to create schools of excellence in this setting– just like in the separate-but-equal era. However, their unregulated nature could enable outside entities such as EMOs to create schools that drain resources from the traditional public-school systems, thus creating a situation that would be even worse than Plessy.

Because of this analysis of California’s charter schools, the authors suggest that states enact the following safeguards to protect black and Latino communities. First, states should only permit school districts to be charter school authorizers. As the resource-center debacle shows, authorizers that are not under the control of black and Latino communities might be more interested in financial gain than in serving the educational needs of the students whom they are serving. Second, states should seriously consider banning EMOs from operating charter schools because of this same concern. Finally, states should allow school districts to base chartering decisions on their economic impact to serve all of their students. Communities that serve black and Latino communities already have limited resources. California’s experience with charter school construction financing shows that if districts do not have the power to accept or reject charter schools, they might proliferate in ways that will further financially compromise these districts.

The Nation's Most Important School Integration Program Is Under Attack

A group of African-American and Latino families have sued Connecticut and the Hartford public school system over the admissions policies at Hartford's magnet schools.  Those magnet schools came into being as a result of Sheff v. O'Neill.  In Sheff, the Connecticut Supreme Court held that the extreme racial isolation in Hartford schools deprived minority students of equal educational opportunities.  Moreover, the extreme racial isolation was a result of the school district boundaries that the state set.  The remedy was to create magnet schools that would pull students into Hartford from across school district boundaries. Some students in Hartford would also attend school in the suburbs.

The success of that program has been highlighted several times in the past few years, most notably by the New York Times, which called out the state of New York for dragging its feet on integration when it had a perfectly good model up the road in Hartford to follow.  Likewise, litigants are currently before the Minnesota Supreme Court, asking the court to recognize a challenge to extreme poverty isolation in Minneapolis schools and pointing to Sheff for support.

This new lawsuit against Hartford claims that the admissions policies at the magnet schools discriminate against minority students.  According to local news, "[t]he schools are limited to 75 percent minority student enrollment."  Parents argue this unfairly prevents minority students from gaining access to special programs at the magnet schools and amounts to a quota prohibited by federal law.

The state has yet to respond, but this case is not nearly so simply as plaintiffs would make it.  First, there is unfortunately very little that is fair in education policy.  School funding is not fair.  On average, the nation spends nearly $2000 less per pupil on poor students than it does middle income students.  School suspensions are not fair.  African Americans are suspended at a rate two to six times higher than whites, depending on the jurisdiction.  The very idea of school district lines is not fair.  It locks hundreds of thousands of students out of educational opportunities and there is absolutely nothing they can do about it. 

Because I hope I would never dismiss the unfairness that kids experience and am loath to lump one more unfairness those stuck in low-performing schools, I would admit that there is something obscenely unfair about the education these plaintiffs receive.  I would only emphasize that it was an effort to make educational opportunities more fair for more students in Hartford that led to this magnet school plan, not an attempt to just do more of the same for kids in Hartford.  That plan is far from being a solution to all of Hartford's ills, but it is an important step in the right direction.

Second, the courts have never addressed a challenge to a desegregation plan implemented pursuant to a state constitutional mandate.  Courts, however, have tons of experience with integration mandates pursuant to a finding that schools have intentionally segregated schools.  In Swann v. McKlenberg, the Supreme Court made it crystal clear that quotas were an appropriate starting point for creating a desegregation plan.  As a result, hundreds of lower courts entered consent decrees requiring that schools maintain enrollments at each individual school that were within 10 or 15 percent of the overall district's racial demographics.  While Sheff does not involve the elimination of prior intentional or de jure racial segregation, Sheff does involve a mandate to eliminate racial isolation that the Court found was the direct result of the state's actions and which deprived students of equal educational opportunities.  The line between these two circumstances is not so wide that a court could not recognize the authority of the state to implement tight controls on admissions in these magnet schools.

Second, even if these magnet schools were treated as entirely distinct from traditional school desegregation cases, there is good reason to believe that they should pass constitutional muster.  Even under strict scrutiny, the school would have the opportunity to demonstrate that the assignment plan serves a compelling interest and is narrowly tailored.  Ensuring the delivery of equal and adequate educational opportunities should easily rise to the level of a compelling interest.  As Justice Kennedy wrote in his controlling opinion in Parents Involved v. Seattle Schools: "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."  

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Appellate Court Finds Alabama School District Succession Was Racially Motivated, But Don't Overlook the Importance of the Lower Court

The Eleventh Circuit has straightened out the school segregation mess in Birmingham, Alabama (or at least part of it).  As many recall from last year, a district court found that Gardendale had acted with racially discriminatory intent when it succeeded from its parent school district.  Yet, the court allowed the succession to proceed, reasoning that stopping it would do more harm than good.  The Eleventh Circuit affirmed the district court’s finding as to discriminatory intent, but found that the lower court erred as a matter of law in allowing the succession to occur.

As to the discriminatory intent, the Eleventh Circuit recounted much of the most troubling evidence.  For instance, it wrote:

While Harvey was performing the feasibility study, the secession leaders formed a nonprofit entity called Future of Our Community Utilizing Schools (FOCUS) Gardendale. FOCUS Gardendale existed to raise funds and to lobby for higher property taxes to support the proposed school system. FOCUS Gardendale circulated a flyer that depicted a white elementary-school student and asked, “Which path will Gardendale choose?” It then listed several well-integrated or predominantly black cities that had not formed municipal systems followed by a list of predominantly white cities that had. The flyer described the predominantly white communities as “some of the best places to live in the country.”

​The most explicit evidence of discriminatory intent was from the statements and online posts of community members.  Gardendale argued that those private motivations could not be attributed to the district.  The Eleventh Circuit disagreed, explaining:

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School Integration Versus the Insinuation of Black Inferiority

On Wednesday, The Century Foundation hosted a lively debate on school integration between Professor Sheryll Cashin (Georgetown University) and Dr. Howard Fuller (Marquette University).  Former Secretary of Education John B. King, Jr. moderated the debate.  Both participants were sympathetic to the other's position at times.  Fuller conceded the value of integration and Cashin conceded the indirect negative consequences that can occur when integration is not implemented properly.  But sharp disagreements emerged as well. 

Fuller charged that African American children need better educational opportunities now, not in some pie-in-the-sky integrated world that does not appear to be on his way.  Thus, he expressed outrage and disbelief that integrationists attack the work of charter schools that are coming into minority communities to expand opportunity.  If those are good schools, he said we should not care that they are segregated.  Critiques of those schools, he argued, are premised on black inferiority.

Cashin responded that no one is seriously attempting to address resource inequity either.  Our schools are segregated and unequal.  She emphasized, however, that there is a well-educated white middle class constituency that supports and seeks out integrated environments because it understands the value.  And fostering those movements and implementing the programs they call for does not require huge expenditures of money.  In other words, integration may be far more plausible and cheaper than most assume.

 

John King also did a great job interjecting sharp questions to both participants.  You can watch the whole debate here.  

 

Measuring Segregation in Your Local School District

Vox has published an incredibly powerful new tool for measuring segregation in your local schools.  For those teaching in the area (or engaging in local advocacy), it allows you to make the issue far more personal and tangible than it otherwise would be.

Just select your local district and the tool will pull up a color-coded picture of the school attendance boundaries in your district.  One version of the map will tell you the current racial demographics of each school.  The other will show you what the demographics would be if students were assigned to the school nearest where they live.  It then indicates whether the current zoning is making school segregation better or worse.  In other words, if we accept current housing segregation patterns as a given, does school zoning make schools even more segregated?  

As Vox chart below indicates, most districts do not make things substantially better or worse, yet there are many that do.  It is, of course, more complex than that and I advise against just looking at the highest level data.  The chart reduces each district to a single category--makes segregation better or worse.  If you look at individual districts, however, you can see that a district might make things better or worse in particular pockets of the district.  This gets lost when reducing the district to an average. 

In Richland One School District in Columbia, SC, for instance, the overall district basically tracks the segregation of the city.  But that is not the case in all pockets of the city.  The district appears to assign students who live in predominantly minority neighborhoods to predominantly minority schools.  Conversely, schools located in predominantly wealthy white neighborhoods tend to pull in an additional percentage of minority students from surrounding areas. In other words, the district does not touch racial isolation in minority neighborhoods, but it whittles at it in white neighborhoods. A district might also whittle out minority students in neighborhoods that are at the tipping point of becoming majority-minority.  This would, presumably, make whites more likely to remain in their local school.  You can assess the merits of this yourself, but it surely raises a host of questions you would miss if only looking at the high level data.

 

 

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Data Is Building to Show That Charters Are Making North Carolina Schools More Segregated and More Unequal

Helen Ladd has followed her poignant charter school segregation study with a new one on the financial impacts of charters on the public school system.  Two years ago, she, Charles Clotfelter, and John Holbein released Growing Segmentation of the Charter School Sector in North Carolina.  They found that the state's charter schools were becoming increasingly white, while its charters were becoming increasing populated by students of color.  It was probably the most precise and impactful study on the topic of charter school segregation to date. 

I separately theorized that this particular demographic trend was occurring in North Carolina as a response to relatively high levels of integration in the public schools.  In other states, the typical charge is that charters are predominantly minority and more segregated than the traditional public schools.  While far from perfect, North Carolina's traditional public schools have tended to be some of the most integrated in the nation.  This is partly attributable to the fact that there are 100 counties in the state and only 102 or 103 school districts.  So those who object to integration cannot simply flee to a suburban district--at least not easily.

Charters schools potentially change that in North Carolina.  The so-to-speak dissenters can simply enroll in a local charter now.  This is not to say that all North Carolina charters play this role, but Ladd's work suggests that many do.

Her new study suggests that not only are these charters segregating education, they are draining funds from the regular public schools.  Her abstract states:

A significant criticism of the charter school movement is that funding for charter schools diverts money away from traditional public schools. As shown in prior work by Bifulco and Reback (2014) for two urban districts in New York, the magnitude of such adverse fiscal externalities depends in part on the nature of state and local funding policies. In this paper, we build on their approach to examine the fiscal effects of charter schools on both urban and non-urban school districts in North Carolina. We base our analysis on detailed balance sheet information for a sample of school districts that experienced significant charter entry since the statewide cap on charters was raised in 2011. This detailed budgetary information permits us to estimate a range of fiscal impacts using a variety of different assumptions. We find a large and negative fiscal impact from $500-$700 per pupil in our one urban school district and somewhat smaller, but still significant, fiscal externalities on the non-urban districts in our sample.

This study only adds fuel to theory I offer in Preferencing Choice: The Constitutional Limits.