Social JusticeAccording to Furman and Gruenewald (2004) social justice is a critical-humanistic role for school leaders. The critical-humanistic role is one that (a) assumes that schools are inherentl
Chapter 8 Equal Protection, English Language Learners, and Desegregation
Introduction
The ISLLC standards call for educational leaders who “safeguard the values of democracy, equity, and diversity.” The legal requirement that reflects this standard is called equal protection. Equal protection means that the law applies equally to everyone regardless of race, ethnicity, religion, sex, and so forth. This chapter presents several aspects of equal protection as the concept applies to student access to a public education, placement, discipline, English language learners, and school desegregation. John Rawls’s “justice as fairness” concept is expanded to include discussions of social justice and social capital.
Focus Questions
What are social justice and social capital, and how are these concepts related to equal protection?
Should race, ethnicity, or sex ever be considered to achieve a diverse student body?
Should students be required to document U.S. citizenship before enrolling in public education?
What information should public school districts be able to obtain from families before allowing their children to enroll in public schools?
How are civil rights laws enforced?
Key Terms
De facto segregation
De jure segregation
Disparate impact
English language learners
Equality of opportunity
Office for Civil Rights
Social justice
Unitary status
Case Study In All Fairness
Lucinda Chavez sat silently as Father Michael Lewis approached the microphone to address the Centerville Board of Education. Lucinda had been superintendent for only a few months, but she already knew much of the history of Centerville School District (CSD). Until the 1960s, Centerville had been a dual school system composed of the Lincoln Schools for African American children and the Centerville Schools for White children. After considerable encouragement from the state government, the schools were consolidated in 1968. Since that time, CSD had been officially integrated. Lucinda knew that Father Lewis planned to use anecdotes to support his claim that racial inequalities in educational opportunities and discipline practices remained commonplace at CSD. Unfortunately, from what Lucinda could ascertain, Father Lewis had a legitimate concern.
Father Lewis spoke eloquently as he told the story of 12-year-old Alejandro. Alejandro’s parents had come to Father Lewis’s church for help. They finally admitted that they were in the country illegally and told of the hardships they had endured to finally reach Centerville. Now broke, hungry, and desperate for work, the parents had tried to enroll Alejandro in school. According to Alejandro’s parents, Centerville Middle School counselors and administrators had requested proof of citizenship, which of course they did not have. Administrators were reportedly rude and threatened to call the police. Afraid of deportation, Alejandro and his parents fled the school and into Father Lewis’s church.
Father Lewis told the story of Michael. Michael was a bright African American youth whom Father Lewis knew well. By the time Michael was in the ninth grade, he was being watched closely by several college basketball recruiters. Unfortunately, Michael was not always teacher friendly and, in spite of his repeated request for placement in college prep courses, he was placed by his high school counselors in lower-track courses and study hall. As graduation approached, it was obvious even to Michael that his dreams of playing college basketball had ended when his course work did not meet NCAA Clearinghouse requirements. By age 22, Michael was wealthy, feared, and dead. His mother and Father Lewis blamed the Centerville High School faculty for denying Michael the opportunity to take college courses. Father Lewis than spoke of the number of African American and Latino children in “dumbed-down” classes, the lack of access to advanced placement courses, the harsh discipline of any child of color who happened to cross the line, and the discrimination in numbers and value of scholarship awards to children of color.
Father Lewis ended his speech: “Ladies and gentlemen of the board, these are our children, and with them go all of our hopes and dreams. In all fairness, the insidious discrimination in Centerville School District must end.” As Father Lewis sat down to thunderous applause, the board chairperson thanked him and moved to appoint a committee to study the problem. Lucinda knew it would be a difficult challenge to lead the board to a reasoned discussion of Father Lewis’s claims.
Leadership Perspectives
According to Frances Fowler (2009), the values of equality and fraternity are fundamental to educational policy in the United States. Equality as a policy value is also often referred to as social justice. Equality is defined in the U.S. Constitution (“All men are created equal”) and in the Fourteenth Amendment (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws”). This does not mean that all citizens have equal ability or the right to an equal share of property. Rather, it means that all citizens are of equal status, and the law is going to apply equally to everyone. For example, Title IX was designed at least in part to provide equal protection for female athletes, desegregation law is based on equal protection for minority children, and Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or natural origin by recipients of federal funds.
Fraternity (or social capital) can be defined as the “ability to perceive other members of one’s society as brothers and sisters, to have a sense of responsibility for them, and to feel that in difficult times one can turn to them for help” (Fowler, 2009, p. 112). The importance of the development of social capital within the larger school community is reflected in ISLLC Standard 6E. Social capital is derived from the various resources, social support systems, and organizations that shape the normative environment in which a school functions. Two valuable sources of social capital are schools and families. The practice of racial integration, the integration of English language learners into the public school culture, and the inclusion or mainstreaming of special education children in the regular classroom are examples of policies designed to promote equality and social capital among diverse groups of students (Fowler, 2009).
ISLLC Standard 6E
ISLLC Standards 4 and 5 call for school leaders to embrace the values of social justice and to understand and promote the development of social capital within the larger school community. These standards promote the understanding and appreciation of a community’s diverse resources, the promotion of positive relationships with families and caregivers, the safeguarding of democracy, equity, and diversity, and the promotion of social justice. In the case study “In All Fairness,” Father Lewis is asking the school district to examine these normative practices that in the opinion of Father Lewis have undermined the values of social justice and social capital in the Centerville community. However, the values of social justice and social capital sometimes conflict with the deeply held values that define not only individual persons, but the larger school culture as well. Lucinda Chavez may indeed face a difficult challenge in confronting long-held normative practices that fracture feelings of equality and brotherhood in the Centerville School District.
ISLLC Standards 4 and 5
ISLLC Standard 4B
ISLLC Standard 4C
ISLLC Standard 5C
ISLLC Standard 5E
Justice as Fairness: Promoting Equality and Fraternity
The ethical concepts of a well-ordered school based on John Rawls’s ideas of social cooperation and public justification were discussed in Chapter 5. This concept was derived from Rawls’s (2001) first principle of “justice as fairness,” which states:
Principle One: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all. (p. 42)
The justice as fairness concept will be further extended to the ethical considerations of equality (social justice) and fraternity (social capital) embedded in the ISLLC standards. The concepts of equality and fraternity are considered in the second of Rawls’s Principles of Justice:
Principle Two: Social and economic inequities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society (the difference principle). (pp. 42–43)
Rawls’s second principle consists of two conditions under which inequalities may exist. The first condition of the second principle considers fair equality of opportunity. The second condition of the second principle considers when inequalities are justified.
Fair Equality of Opportunity
Fundamental to Rawls’s first condition is the idea of a school community where all participants have a fair equality of opportunity. Fair equality of opportunity requires conditions that do not permit some to have unfair bargaining advantages over others in the school community. Fair equality means not only that opportunities (such as advanced courses, the best teachers, access to technology, honors, scholarships, and preferred offices) should be open in the formal sense, but that all members should have a fair chance to attain and benefit from these opportunities. That is, all students, regardless of sex, ethnicity, socioeconomic status, or race, should have an equal opportunity for the best basket of goods and services available to any other student in the school community. In the opening case study “In All Fairness,” both Alejandro and Michael were seemingly denied equality of opportunity. Alejandro was denied access to school, and Michael was denied the opportunity to enroll in college prep courses.
Rawls uses a hypothetical “veil of ignorance” to illustrate the concept of fair equality of opportunity. Under a veil of ignorance, parties do not know or consider race, ethnicity, sex, or native endowments such as strength or intelligence as they strive for fair equality of opportunity. This hypothetical construct provides a world view free of past behaviors, political power, or birth rights of the participants. It leads to terms of cooperation that are fair and supportable by public discourse. This concept is hypothetical because it is of course impossible to attain. However, the basic idea of a veil of ignorance to create a system of cooperation that is fair and supportable is the driving force behind the ethical obligation of fundamental fairness demanded by the ISLLC standards.
The Justification of Inequalities
The second condition of the second principle views inequalities to be justifiable as long as these inequalities are to the greatest benefit of the least advantaged members of the school community (difference principle). The difference principle is subordinate both to the first principle of justice (guaranteeing the equal basic liberties) and to the first condition of the second principle (fair equality of opportunity). The difference principle is designed to apply within the background of the school community in which these prior conditions are already satisfied.
Inequalities may or may not be defined in terms of race, ethnicity, sex, or socioeconomic status. For example, a student may be advantaged in one area (musical talent, for instance) and disadvantaged in another area (mathematical talent, for instance), with little relationship to sex or race. However, sometimes race, ethnicity, and sex serve as the background to the practice of “silent tracking” that results in lesser opportunities for some students such as Michael in the case study “In All Fairness.” This type of discrimination is the most insidious and most difficult form of inequality to confront. However, it may be these conditions that Father Lewis is asking the Centerville School District to address, not all inequalities in the basket of goods and services available to all students. For example, providing a student with extra tutoring, use of technology to better communicate, or English as a second language classes is justifiable as long as all the other conditions are met in the school. In other words, equality of opportunity (social justice) based on fair and equal treatment and justifiable inequalities provides the basis for a school culture from which social capital (fraternity) can emerge. Table 8-1 illustrates the interrelationships of these concepts.
| Low social capital | High social capital | |||
| Low social justice | Quadrant 1 |
| Quadrant 2 |
|
|
| |||
| High social justice | Quadrant 3 |
| Quadrant 4 |
|
|
|
Table 8-1 Equality of opportunity matrix
Table 8-1 may be used to estimate the relative levels of social justice and social capital embedded in the school culture. For example, a Quadrant 1 school would represent a campus culture that has both low social justice and low social capital. Some of the indicators of this type of culture may include stratified classes, perceived inequality permeating the school and community, and student conflict often defined by race, ethnicity, socioeconomic status, or sex. Centerville School District in the case study “In All Fairness” may represent a Quadrant 1 or a Quadrant 3 school culture. A Quadrant 3 school would present many of the same inequalities as a Quadrant 1 school. However, the school and community do not perceive these inequalities, or else those affected by them feel powerless to confront those who may have the power to institute change. A Quadrant 4 school represents a healthy school where social justice and social capital are embedded in the culture. Indicators of this type of school culture include little if any stratification of classes based on race, sex, or socioeconomic status; the justification of inequalities; and community perceptions of equal treatment. It is important to note that few schools would always fall into a particular quadrant. Rather, what is important to consider is where a particular campus culture generally falls in the social justice–social capital continuum.
From a practical standpoint, placing a school within a particular quadrant provides a starting point for discussion. For example, in the case study “In All Fairness,” it would be important for Lucinda Chavez to determine if the schools in the Centerville School District are predominately in Quadrant 1 or Quadrant 3. If, for example, some campuses in the district are Quadrant 1, then Father Lewis is correct and the ISLLC standards require an affirmative response. If, on the other hand, most campuses are in Quadrant 2, then efforts at public justification may be the appropriate response.
Linking to Practice
Do:
Collect and analyze student data in areas such as class assignments, special education, and office referrals or disciplinary actions. Any disproportion requires an affirmative response to address the underlying causes.
Analyze data to determine if any inequalities are to the greatest benefit of the least advantaged.
Gather community and student data to determine perceptions of inequalities.
Equal Protection: A Legal Theory to Promote Basic Fairness
A civil right is the right of an individual to personal liberty guaranteed by the Bill of Rights and the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments to the Constitution. These rights specifically address voting, due process, and equal protection under the law (Garner, 2006). ISLLC Standard 5 illustrates the importance placed on equal protection for all students. This chapter focuses on the concept of equal protection as it applies to student discrimination in access, placement, and discipline, English language learners, and desegregation. Understanding and appropriately responding to these legal concepts are part of ISLLC Standards 2, 3, 4, and 5.
ISLLC Standard 5
ISLLC Standards 2, 3, 4, and 5
Discrimination
Student discriminatory complaints based on race, color, or national origin may be filed with the Office for Civil Rights (OCR) of the U.S. Department of Education. OCR enforces several federal laws that prohibit discrimination, including Title IV and Title VI of the Civil Rights Act of 1964. Title IV prohibits discrimination based on race, color, or national origin by public school districts. Title VI prohibits discrimination based on race, color, or national origin by recipients of federal funds. Title VI also prohibits districts from unjustly utilizing school structures, defined as admission requirements, placement in classes or grades, assignment to special education classes, disciplinary practices, suspension/expulsion policies, and so forth, that have a discriminatory effect on students based on race, color, or national origin (Dear Colleague, 2011, May 6). Complaints may be filed by the victim(s) of alleged discrimination or by other persons or groups on behalf of the alleged victim(s).
In addition to disciplinary and placement practices, OCR under Title VI also considers issues of racially hostile environments. A racially hostile environment occurs when race-based harassment is “sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school” (Dear Colleague, 2010, October 26, p. 1). School leaders are responsible for addressing harassment incidents when they know or reasonably should have known about the harassing behavior. Once an investigation reveals that discriminatory harassment has occurred, school leaders have an affirmative duty to take reasonable and prompt steps to end the harassment and prevent it from recurring.
OCR’s primary objective is complaint resolution by facilitating voluntary resolutions or negotiated agreements for voluntary compliance. If negotiations fail, the OCR will resort to the referral of cases to the U.S. Department of Justice (Office for Civil Rights, 2000, Annual Report to Congress). In other words, compliance with a voluntary OCR agreement may be the better part of valor for most school districts found to be in violation of any federal discrimination law. The following Linking to Practice is based on the OCR’s Oct 26, 2010, Dear Colleague Letter.
Linking to Practice
School districts should have well-publicized policies prohibiting student-on-student or employee harassment based on race, color, natural origin, or sex.
School districts should have well-publicized procedures for students, parents, or others to report harassment.
Policies should prohibit retaliation for reporting incidents of harassment.
Districts should have ongoing staff development designed to recognize harassment in any form.
School board policy should require faculty and staff to report harassment to proper building-level administrators.
School board policy should require building administrators to investigate any allegations of harassment and report their findings to selected central office personnel.
Be aware of any signs of a racially hostile environment and take immediate and reasonable action once it is known to school officials.
Legal Remedies to Title VI Claims
Two legal frameworks regarding discriminatory conduct are available under Title VI of the Civil Rights Act of 1964 (a) disparate impact and (b) adverse impact claims. Disparate impact considers whether or not a policy or practice unfairly treats a particular group in a school. Examples of disparate impact may involve unfair treatment of students based on race, color, national origin, sex, or handicapping condition. Unfair treatment may include such things as policies and practices that cause disproportionate numbers of students of color to be referred for disciplinary action; higher suspension and expulsion rates for various groups of students; and significant numbers of students in lower track courses identifiable by race, color, or national origin. Disparate treatment claims require demonstration of both disparate treatment and intentional discrimination. Because school officials rarely publicly admit to intentional discrimination in policy or practice, this claim is particularly difficult to sustain.
The adverse impact theory considers policies that result in an adverse impact on a disparate number of students based on race, color, or ethnicity. Although neutral on the face, these policies result in a disproportionate number of students of a particular race, color, or national origin suffering maximum punishment for a particular offense or disproportionately placed in remedial classes or special education. The difficulty of demonstrating adverse impact claims on a legal level may be challenging, especially when the policies apply to school safety. For example, disparate and adverse impact were among the claims of students in Fuller v. Decatur (2000). In this particular case, several high school students were expelled for their involvement in a fight at a football game. The students alleged that school district policy resulted in a practice of arbitrary expulsions with regard to African American students. The trial court ordered Decatur administrators to produce expulsion records for the past 2 years disaggregated by race. African American students comprise 46% to 48% of the student body in the Decatur District. The summary data provided by district administrators indicated that 82% of the students expelled during this period were African American. The remaining 18% were White.
The court noted that the statistical data would lead a reasonable person to speculate that the expulsion decisions were affected by the race of the student. However, the court noted that indications of the race of the student being considered for expulsion were never presented to the school board. The court also noted that White students had been expelled for similar types of offenses. Therefore, the court found that the students failed to demonstrate that “any similarly situated Caucasian students were treated less harshly; they failed to establish that race played any role in the School Board’s expulsion decision.”
The difficulty of demonstrating adverse impact claims on a legal level may be challenging, especially when the policies apply to school safety. However, an examination of disproportionate impact can be sobering. In a nationwide study of racial discrimination in public education, Gordon, Piana, and Keleher (2000) concluded:
African American students especially, along with Latinos and Native American students, are suspended or expelled in much greater numbers than their White peers. For example, in Austin, Texas, 18% of the student population is African American, 43% Latino, and 37% White. African American students accounted for 36% of the suspensions and expulsions, Latino students 45%, and White students 18%. A similar pattern is apparent in the other 10 cities for which disaggregate data were available for the study.
Students of color are more likely to drop out—or be pushed out—of school and less likely to graduate than are White students.
Students of color have less access to advanced classes or programs for gifted students.
These findings led the researchers to conclude: “What concerns the nation’s almost 17 million students of color and their communities is that, regardless of anyone’s intent, they receive an inferior education” (p. 3). Regardless of intent or the difficulty of successful legal challenges to school policy, ISLLC Standards 4 and 5 require school leaders to examine and address inequalities in the educational system at all levels. This is what Father Lewis in the case study “In All Fairness” is asking.
ISLLC Standards 4 and 5
Linking to Practice
Do:
Collect, analyze, and disaggregate student discipline data to determine if there is evidence of disparate impact of policy and practice. If the data show disproportionate impact, school leaders are obligated to constructively address the situation.
Analyze student demographics in various honors courses, reading groups, and so on for disproportionate representation.
Do Not:
Allow teachers or other adults to create, tacitly approve, or ignore racial hostility in any form in the classroom, hallways, or at after-school activities.
Ignore evidence of disproportionate representation based on race, sex, or national origin in office referrals, suspension and expulsion data, advanced or honors courses, advanced reading groups, gifted and talented programs, and so on.
English Language Learners
The education of English language learners (ELLs) is inexorably intertwined with the political and philosophical debate over illegal immigration, tax dollars, and citizenship. Public PK–12 schools are not immune from this debate. The legal history surrounding ELL students started in San Francisco in 1971. A class action suit was brought against the San Francisco public school system by non–English-speaking Chinese students alleging that they were not provided with an equal educational opportunity and were being denied equal protection as provided by the Fourteenth Amendment (Lau v. Nichols, 1974). The U.S. Supreme Court did not validate the students’ equal protection claim, but rather relied on Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin by any recipient of federal funds.
Also in 1974, the U.S. Congress passed the Equal Education Opportunities Act (20 USC Sec. 1703), which prohibits, among other things, any state from denying equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by failing to take appropriate action to overcome language barriers that impede equal participation in the instructional program.
Two other landmark cases regarding ELL students soon followed. In 1981, the Fifth Circuit Court of Appeals developed a three-pronged test to determine whether a school district was in compliance with the Equal Educational Opportunities Act (Castaneda v. Pickard, 1981). The three-part test included the following: (1) The school is pursuing a program informed by an educational theory recognized as sound by some experts in the field or, at least, deemed legitimate experimental strategy; (2) the program and practices actually used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school; and (3) the school’s program succeeds, after a legitimate trial, in producing results indicating that the language barriers confronting students are actually being overcome. The Fifth Circuit also concluded that segregation of ELL students is permissible only when the benefits outweigh the adverse effects of the segregation.
In 1982, the U.S. Supreme Court held that the Fourteenth Amendment prohibits states from denying access to a free public education to any child residing in the state, whether present in the United States legally or otherwise (Plyler v. Doe, 1982). Plyler establishes that ELL students are entitled to the same basket of goods and services provided by public schools to all children who reside within the district boundaries. Plyler makes clear that the undocumented or non-citizen status of the child or her or his parent(s) is irrelevant to the child’s entitlement to a public education (Dear Colleague, 2011, May 6). As the Court stated in Plyler, “Obviously, no child is responsible for his (or her) birth and penalizing the . . . child is an ineffectual—as well as unjust—way of deterring the parent.”
According to the Office for Civil Rights (Dear Colleague, 2011, May 6) school districts may:
Require students or their parents to provide proof of residency within the district. For example, districts may require copies of phone and water bills or lease agreements to establish residency. However, a school district’s requirements to establish residency must be applied in the same way for all children.
A school district may require a birth certificate to ensure that a student falls within the district-mandated minimum and maximum age requirements. However, a district may not deny enrollment based on a foreign birth certificate.
Request a student’s social security number during enrollment in order to use it as a student identification number. The district must inform the student and parent that providing a social security number is voluntary and explain how the number will be used.
A district may request race or ethnicity data.
A district may not:
Ask about citizenship or immigration status to establish residency within the district, nor may a district deny admission to a homeless child because he or she cannot provide the required documents to establish residency.
A district may not prevent enrollment because the child has a foreign birth certificate.
A district may not prevent enrollment because parents refuse to provide a social security number.
A Brief History of Desegregation
At the turn of the 20th century, several states in both the North and South had laws that either required or allowed school districts to establish and maintain segregated schools for White and African American students (see Brown v. Board of Education, 1954). Segregation is the unconstitutional policy of separating people and their children on the basis of color, race, or national origin. Courts define two types of segregation applicable to education law: (1) De jure segregation is defined as state or school board policy or practice that separates children by color, race, or national origin. In other words, de jure segregation is the intentional separation of students of color and White students. The end result of de jure segregation is a dual school system. Historically, schools for students of color have been inferior to schools for White students. De jure segregation was found constitutional in an 1896 case that grew out of a Louisiana state law requiring equal but separate railroad cars for “colored” and White passengers (Plessy v. Ferguson, 1896). The Equal Educational Opportunities Act (EEOA) of 1974 (20 USC Sec. 1703) makes illegal the deliberate segregation of students by school districts on the basis of race, color, or national origin or the transfer of a student from one school to another if the purpose and effect of such transfers increases the segregation of students based on race, color, or national origin. In other words, the EEOA bars de jure segregation. (2) De facto segregation occurs without the direct intent of a state or school board, but usually because of socioeconomic factors that result in housing patterns that create enclaves of children (both children of color and White children, for example) of the same color or race (Garner, 2006).
The battle over separate but equal schools started 20 long years before the EEOA was passed, when the concept of “separate but equal” as it applies to schools was challenged in 1954 (Brown v. Board of Education).
1954 Brown v. Board of Education of Topeka, Kansas (Brown I)
The U.S. Supreme Court considered a Kansas state law that permitted cities of more than 15,000 to maintain separate school facilities for African American and White students. The Court, finding that “education is perhaps the most important function of state and local governments,” applied the Equal Protection Clause of the Fourteenth Amendment to education and declared such state laws to be unconstitutional. In unanimously reversing Plessy, the Court found that because segregated public schools are not equal and cannot be made equal, the “separate but equal” doctrine of Plessy has no place in education. Consequently, school districts should proceed to unitary status, meaning that the school system is desegregated to the “greatest extent practical.” However, this landmark ruling was just the beginning of a long, arduous, and often contentious legal and political journey that simultaneously united and divided American society. The following summary of court cases captures just a small portion of this journey.
1955: Brown v. Board of Education (Brown II)
Reiterated that racial discrimination in public education is unconstitutional, and all provisions of federal, state, or local law must yield to this principle.
Required that all vestiges of segregation be eliminated with “all deliberate speed.”
Primary responsibility for desegregation lies with school districts. Local districts must demonstrate “good faith” efforts in the areas of facilities; transportation; administrative, faculty, and staff assignments; and student assignments.
Federal district courts determined the definition of “good faith efforts.”
Local courts would retain jurisdiction of these cases during any periods of transition.
Recognized revisions of school districts and attendance areas as one option to remedy de jure segregation.
1968: Green v. County School Board of New Kent County (Virginia)
The Court was asked to consider whether a “freedom of choice” plan where not a single child regardless of race had changed schools was acceptable. The Court answered that a desegregation plan that is ineffective must be discontinued and an effective plan established.
School boards operating a dual system are charged with the affirmative duty to take whatever steps deemed necessary to convert to a unitary system.
Federal district courts were charged with determining “good faith” efforts and that any proposed plan should have a real prospect for success.
The Court ordered segregation eliminated “root and branch” in a number of different areas including facilities, teaching staff, transportation, and extracurricular activities.
1969: Alexander v. Holmes County Board of Education (Mississippi)
The Fifth Circuit Court granted the state of Mississippi a delay in submitting desegregation plans because time was too short to accomplish a complete and orderly implementation of the plans for the next school year. On appeal, the U.S. Supreme Court found that the court of appeals should have denied all motions for additional time.
Continued operation of segregated schools under a standard of allowing “all deliberate speed” for desegregation is no longer constitutionally permissible.
1971: Swann v. Charlotte-Mecklenberg Board of Education (North Carolina)
The Court considered the methods and latitude of federal district courts in enforcing desegregation decrees when school authorities default on their obligation to put forward acceptable remedies.
Under the principle that de jure segregation is unconstitutional, school authorities are clearly charged with eliminating from the public schools all vestiges of state-imposed segregation.
If school authorities fail in their affirmative obligations, judicial authority may be invoked, and the scope of a district court’s powers is broad.
The extent of the violation determines the scope of the remedy.
The Court recognized “de facto segregation.” The mere existence of single-race schools is not necessarily prima facie evidence of segregation. However, courts have considerable authority to address instances of segregation brought about by discriminatory action of state authorities.
1973: Keyes v. Denver
Colorado state law had never required or allowed racially segregated schools as did laws in Kansas, Mississippi, Virginia, or Louisiana (see previous cases). The Court was asked to consider whether, if a school board used various techniques such as student attendance zones, school site selection, or a neighborhood school policy that created or maintained racially or ethnically segregated schools in at least part of the district, a decree was justified directing desegregation of the entire district. The Court answered in the affirmative.
The Court ruled that if a “substantial portion” of the district is unlawfully segregated by law or systematic action, the entire district must be involved in the remedy.
The Court recognized that “de facto” segregation does occur, resulting in isolated pockets of segregated schools. However, such cases should be rare.
1974: Milliken v. Bradley (Detroit)
A U.S. district court ruled, among other things, that in order to effectively desegregate Detroit schools, it would be necessary to look beyond school district lines.
Absent interdistrict constitutional violations, racial segregation existing in one district could not be remedied by a multidistrict solution absent evidence that the proposed neighboring districts participated in the segregation process.
1977: Milliken v. Bradley (Milliken II)
The Court granted certiorari to consider two questions: May a district court (a) order compensatory or remedial educational programs for school children subjected to past acts of de jure segregation, and (b) order state officials to bear part of the costs of those programs? The Court answered yes to both questions. Because it could be shown that both the Detroit Board of Education and the state of Michigan participated in acts of de jure segregation, these remedies were within the powers of a district court.
1986: Riddick v. School Board of Norfolk (Virginia)
The Fourth Circuit Court affirmed a district court ruling that the School Board of the City of Norfolk had satisfied its affirmative duty to desegregate. This is the first such dissolution of a desegregation order in the United States.
1991: Oklahoma City Schools v. Dowell
The Court considered the question of what factors a district court should address in determining whether or not a particular board of education had demonstrated a sufficient “good faith effort” before releasing the district from judicial control.
Desegregation orders are not meant for perpetuity.
The Court reinforced the concept that a district must demonstrate that vestiges of past discrimination be eliminated to “the greatest extent practicable.”
A school board is not responsible for racial imbalance that is not traceable to prior violations.
The district court must examine criteria established in Green v. County School Board (1968) more than 20 years earlier plus the Swann factor (Swann v. Charlotte-Mecklenburg Board of Education, 1973) of equitable resource allocation. The factors a district court should consider include:
Student assignment
Faculty
Staff
Transportation
Extracurricular activities
Facilities
Resources (from Swann)
1992: Freeman v. Pitts (DeKalb County, Georgia)
The primary legal question in this case considered whether or not a district court may relinquish judicial oversight and control over those aspects (Green and Swann factors) of a school system in which there has been compliance with a desegregation decree while some of the factors remain not in compliance.
Desegregation orders can be incrementally dissolved.
Federal judges have the power to relinquish control of desegregation efforts.
The district must demonstrate “good faith commitment” to the federal desegregation order as a primary condition of being declared “unitary.”
School boards are not responsible for de facto segregation that occurs after “good faith commitment” to unitary status.
The Court values local control. Federal supervision is a temporary remedy for past discrimination.
1990: Missouri v. Jenkins (Kansas City, Missouri)
The district court improperly ordered an increase in local property taxes to offset the cost of desegregation order. The Court considered several aspects of the Missouri school funding formula as well as taxing limits and authority of the state.
The Supreme Court was reluctant to link school segregation and residential segregation to a desegregation order.
The Court directed the federal trial court to restore control of school systems to local and state authorities as soon as possible.
The End of an Era
In order to be released from judicial oversight (declared “unitary”), a district is required to demonstrate a “good faith effort” over a period of time to comply with the factors established by the U.S. Supreme Court in Green v. County School Board of New Kent County (1968). After more than 50 years of litigation, it appears that the era of court-ordered and court-supervised desegregation of America’s schools is coming rapidly to a close. For example, in 2001 the 11th Circuit Court upheld a district court ruling determining that the desegregation litigation involving Duval County (Florida) public schools should end (NAACP, Jacksonville Branch v. Duval County Schools, 2001), and it also upheld the dissolution of judicial oversight for Hillsborough County, Florida (Manning v. School Board, 2001). More recently, the desegregation order involving Little Rock (Arkansas) Public Schools was settled in five of six areas (Little Rock School District v. Pulaski County, 2003); the desegregation order involving the City of Dallas, Texas, was dissolved by the Northern District Court of Texas (Tasby v. Moses, 2003); and the longest-running desegregation order in America, involving East Baton Rouge (Louisiana) Parish, was finally resolved after 47 years (Clifford Eugene Davis Jr., et al. v. East Baton Rouge Parish School Board, 2003).
A Compelling State Interest
As the trend toward the dissolving of desegregation orders continues, concerns regarding the resegregation of America’s schools have been expressed. For example, Orfield, Frankenberg, and Lee (2003) pointed out from their research at Harvard University that an unraveling of integration and a return to segregated schools had occurred in the previous decade. The authors found that U.S. public schools were more segregated in 2003 than they had been before busing, magnet schools, and redistricting occurred in the early 1970s. As a result, Latino and African American students were becoming more racially segregated while the average White student attended a school that was 80% White. In response, the authors called for a multiracial vision of school integration that more closely fits our society rather than an approach that moves children of color into largely White schools.
The goal of actively promoting and creating multiracial schools may be politically volatile because it requires considerations of race or ethnicity in student school assignment. The legal question is simple. Is the practice of selecting or placing students in a particular school on the basis of race or ethnicity with the purpose of integrating schools within a district constitutionally permissible? The answer is, rarely. Race and ethnicity are suspect classes. Therefore, the U.S. Supreme Court applies strict scrutiny to these cases. Strict scrutiny is the most rigorous standard to meet. In order to prevail, the state must demonstrate that the policy is necessary to achieve a compelling state interest. Then the state would have the burden of demonstrating that the method used by the district is narrowly tailored to achieve the goal of integrated schools. These are very difficult hurdles to overcome.
The U.S. Supreme Court considered the question of using race as part of the selection criteria in two 2003 cases involving higher education. The first case, Gratz v. Bollinger (2003), considered a University of Michigan undergraduate freshman admissions practice that awarded “points” to students in an “underrepresented” race or ethnic minority group. The Court found this practice to violate the Equal Protection Clause for a variety of reasons. The second case, Grutter v. Bollinger (2003), considered a University of Michigan Law School admissions policy designed to enroll a “critical mass” of underrepresented students. In this practice, the school considered each qualified applicant individually and through this individualized process actively sought to admit some critical mass of underrepresented minorities for the purpose of attaining a diverse student body. The Court found that the law school has a compelling state interest in attaining a diverse student body, and the admissions policy’s race-conscious program bore the hallmarks of a narrowly tailored plan to achieve such an interest. In essence the law school plan was not focused on race alone but considered all selection factors that may contribute to a diverse student body.
The fact that the Court found a diverse student body to be a compelling state interest in Grutter may seem to bode well for considerations of race or ethnicity in school district efforts to create and maintain culturally diverse schools. This is not the case. In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), decided together with Meredith v. Jefferson County Board of Education, the U.S. Supreme Court held that the practice of assigning students to public schools solely for the purpose of achieving racially balanced schools is unconstitutional. The Seattle School District allowed students to apply to any high school in the district. Some high schools are naturally more attractive to students than others. When these high schools became oversubscribed (i.e., received more student applications than space allowed), the district used a system of tiebreakers to decide which of the oversubscribed students would be admitted. The second most important tiebreaker in the Seattle plan was a racial factor intended to maintain racial diversity. The Jefferson County School District, on the other hand, assigned students to a particular school based on the racial makeup of each school. Race was defined by the district as Black and “Other.” Asian, Hispanic, and White students were classified as “Other.”
The Court held that the student assignment plans of Seattle Public Schools and Jefferson County Public Schools did not meet the narrowly tailored and compelling interest requirements for a race-based assignment plan because they were used only to achieve “racial balance.” In short, public schools may not use race as the sole determining factor for assigning students to schools. Justice Roberts concluded his majority opinion by stating, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Summary
The concepts of social justice and equal protection are embedded throughout the ISLLC standards addressed in this text. Social justice means that all students have an equal opportunity for the best basket of goods and services available to all other students in the school. Equal opportunity does not necessarily mean that students may not be treated differently. In fact, students may be treated differently as long as the differences are designed to benefit the least advantaged. John Rawls’s concepts of a school or district based on social cooperation and public justification (First Principle) and equal opportunity and justifiable differences (Second Principle) provides ethical guidance in creating a school community where social justice and social capital may flourish.
Equal protection means that the law should apply to everyone regardless of sex, race, color, or ethnicity. These concepts are codified in Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin. Violations of Title VI seem difficult to demonstrate, especially when school safety is at issue. However, social justice requires that school policy and practice be examined to determine if these policies disparately affect certain groups in the school. If this determination is made, the ISLLC standards create an affirmative duty to respond.
Connecting Standards to Practice
Discrimination or Background Knowledge Part II
Assistant Superintendent Sharon Grey’s review of district enrollment in pre–advanced placement and advanced placement (AP) courses indicated that a disproportionate underrepresentation of students of color was apparent at Pocono and Jefferson Middle School (see Discrimination or Background Knowledge Part I, Chapter 1). She also knew from her experience as principal of Riverboat High that most AP courses had a disproportionate underrepresentation of African American and Hispanic students compared to the overall high school population would suggest. When she asked the high school counselors why this was happening, she was told the main reason was the students had not completed pre–AP courses in middle school, thus making them ineligible for AP courses in the high school.
Sharon was concerned about the problem and had met on several occasions with the principals of Pocono and Jefferson Middle Schools and the principal of Riverboat High School to address the concerns. The principals were also concerned and explored their options. One promising option seemed to be a program called Advancement via Individual Determination (AVID). AVID had demonstrated success in promoting traditionally underrepresented populations in AP and dual-credit courses in several states, including Texas and California. However, the AVID program required that a coordinator be hired and that teachers provide opportunities for tutoring of students in the program. Sharon had asked the three principals to use the discourse ethics model (Chapter 3) and to meet with faculty who would be affected by the AVID programs to build support.
Unfortunately, the majority of the affected faculty argued that the district could not afford an additional teacher in each of the buildings and that it would take too much of their time to tutor these students. They also would feel pressured to lower their standards. Sharon was disappointed in the response. The superintendent was supportive of the AVID program and felt that the district could not afford not to address the problem. The superintendent asked Sharon to provide a written recommendation.
Question
Argue for or against the addition of the AVID program in two middle schools and the high school in the district. Cite the applicable ISLLC standards; the Dear Colleague letters of October 26, 2010, and May 6, 2011; affected faculty concerns; legal remedies to Title VI claims and the justice as fairness concept to support your answer. Write a memo to the superintendent outlining your conclusions.
