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November/December
2007
Districts seek legal routes to capture
the benefits of diversity
by Brigid Schulte
Richard Gastellum, desegregation coordinator for
Tucson Unified
School District, had been watching all last spring for the U.S.
Supreme Court’s decision on two race-based desegregation plans
in Seattle and Louisville. The plans being challenged in both cities
were purely voluntary efforts to promote diversity, like similar
plans at an estimated 1,000 districts nationwide. Tucson, however,
is one of about 253 school districts across the country that are
still under a court order to desegregate to remedy past harms. Tucson
used an array of magnet schools, controlled choice student assignment,
and forced busing to do so. Gastellum was interested in the decision
to be handed down by the Court in June, but because his district’s
plan was court-ordered, not voluntary, he was confident that the
ruling would have no bearing on Tucson.
But it did.
Two short months after the Supreme Court ruled
on June 28 that both voluntary race-based plans were unconstitutional,
the U.S. district judge overseeing Tucson’s desegregation
order decided that its mandated Policy
5090 “Ethnic and Racial Plan” was also now unconstitutional
because it relied solely on an individual student’s race to
make school assignments. The policy had prohibited students from
transferring into a school or out of another if it would throw off
the racial or ethnic balance of either school. So instead of moving
with “all deliberate speed” to desegregate—to
quote the landmark Brown
v. Board of Education ruling—Tucson’s school board
decided to turn on a dime. Two weeks into the 2007–08 school
year, they voted 3-2 to scrap the 30-year-old plan immediately and
move to a purely open enrollment system. “It all came as a
complete surprise,” Gastellum says. “But I’m an
educator, not a constitutional lawyer.”
Even constitutional lawyers were shocked. “It’s
absurd,” says John Powell, a legal scholar and executive director
of the Kirwan
Institute for the Study of Race and Ethnicity at Ohio State
University. “But it’s indicative of the tremendous confusion
out there. We’ve talked to a number of districts and there’s
tremendous timidity. Some local lawyers, though not all, are saying
that the best thing to do is do nothing, to dismantle their plans.
All of them are worried about being sued.”
In the frenzied days and weeks following the Supreme
Court’s divided 4-1-4 decision, school officials, lawyers,
advocates on both sides of the issue, lower court judges, and the
media tried to make sense of it all. Calls from confused school
board officials poured in to attorney Francisco Negrón’s
office at the National
School Board Association (NSBA). Ted Shaw, director of the NAACP
Legal Defense Fund, posted an online fact sheet to calm fears
and show that not all race-based desegregation plans would have
to be abandoned because of the divided ruling.
Maree Sneed, an attorney who helped defend Seattle’s
plan before the Supreme Court, gave a seminar this summer for 160
school officials at Harvard University and asked how many thought
they could no longer use race in voluntary student assignment plans.
Everyone raised a hand. “Some people aren’t even sure
if you can use race-neutral means to integrate,” Sneed says.
“But you can. And you can still use race as a factor for things
like selecting school sites, drawing attendance zones, and special
program placement.”
Powell, Sneed, and a number of legal scholars
say that there are still ways for school districts to avoid racial
isolation and to integrate schools voluntarily using both a careful
consideration of race in a general way and a variety of race-neutral
means. They point to Justice Anthony Kennedy’s key opinion
in the case: “The decision today should not prevent school
districts from continuing the important work of bringing together
students of different racial, ethnic, and economic backgrounds,”
he wrote.
As evidence mounts that public schools across
the country are resegregating at a rapid rate and that the achievement
gap between white and black students is again widening, many educators
and district leaders still see desegregation as an important goal
and are looking
for ways to achieve it. Others, in the wake of the court’s
decision, are arguing that desegregation be dropped in favor of
other priorities (see Voluntary Integration: Two Views,
page 5).
Meeting a Strict Standard
Experts say school districts planning to move
forward with voluntary integration plans must be not only determined
and creative but also prepared to explain cogently why their plans
are important. The Court has made it clear that voluntary student
assignment plans designed solely for racial balance are unconstitutional.
But, legal scholars say, well-crafted integration plans may not
be, so long as they are based on research that shows, for example,
that minority students achieve at higher levels in integrated schools
and that all children benefit socially from living together in a
pluralistic society. “For school districts, this is no longer
a question of integration, it’s a question of what the educational
value of integration is,” says the NSBA’s Negrón.
“They need to be thinking, ‘What is the pedagogical
goal of diversity?’”
In designing plans, says Sneed, districts first
need to understand the heart of the complicated Supreme Court decision
itself. Districts can use race as a factor in voluntary choice plans
without violating the Constitution’s equal protection clause,
as long as the plan can pass a legal standard called “strict
scrutiny.” To meet this standard, a plan must pass two
tests. First, if challenged, the district must prove that there
is a “compelling governmental interest” in using the
plan. In their decision on the Seattle and Louisville plans, five
justices, including Kennedy, agreed that the educational benefits
of diversity and avoiding the harm of racial isolation were both
compelling governmental interests. Second, if a district’s
plan uses race as a factor in making student assignments, it has
to be “narrowly tailored,” with race used as only one
among many factors and only after exhausting good-faith efforts
to use race-neutral means to achieve the compelling governmental
interest. In the Seattle and Louisville cases, a different majority,
also including Kennedy, decided that their plans were not narrowly
tailored enough and they were thus ruled unconstitutional. “Strict
scrutiny is a tough test,” Sneed says.
Because Kennedy gave each side a majority on the
two strict scrutiny questions, his is considered the controlling
opinion. And he very clearly leaves the door open for districts
to use race-conscious measures, including, in his words, “strategic
site selection of new schools; drawing attendance zones with general
recognition of the demographics of neighborhoods; allocating resources
for special programs; recruiting students and faculty in targeted
fashion; and tracking enrollments, performance, and other statistics
by race.”
Race-Conscious or Race-Neutral?
As districts grapple with what to do next, many
may look to Pat Todd, head of student assignment for the Louisville
schools in Jefferson County. She is working with the community to
come up with a new integration plan to replace the rejected one,
which had required schools to reflect the district makeup and have
no fewer than 15 percent and no more than 50 percent African American
students. “The nation is, in truth, watching to see what Jefferson
County Public Schools is going to do next,” she has said.
“There is quite a lot of work to be done.”
And what Jefferson County leaders are doing right
now is studying. They’re looking at “race-conscious”
solutions like that in Omaha, Nebraska, which divides the school
district into zones of roughly equal racial groups, and “race-neutral”
solutions like the socioeconomic integration plans in places like
Wake County, N.C., Cambridge, Mass., Berkeley, and Boston. They
want to create a “critical friends network for diversity and
public schools” to share and learn from what others have tried.
Given the Supreme Court decision, Sneed says,
districts will find it easier to defend an integration plan that
uses race-neutral means. These include school choice plans, attendance
zones, and magnet or focus schools that consider socioeconomic status,
parents’ level of education, geography, concentrated poverty,
home language, test scores, and other academic achievement data.
Race-neutral plans that are challenged in court must meet a lesser
“rational basis” constitutional standard. “What
that means is that if you’re going to use race-neutral means
to integrate, you have to be able to explain why you are doing that,”
says Sneed. “If a district wants to use socioeconomic status,
there is definitely a rational basis for that because we know from
research that when we get high concentrations of poverty in schools,
we tend to have, on average, higher teacher turnover, a higher percentage
of teachers with less experience, and fewer teachers with higher
degrees. And that all has an impact on the achievement of students.”
Wake County’s race-neutral plan is often
held up as the best—and most legally defensible—example
of achieving both class and racial integration while boosting academics
at the same time. Their plan calls for schools to have no more than
40 percent of students qualifying for subsidized meals and no more
than 25 percent reading below grade level. The plan is supplemented
with magnet schools and attendance zones all based on socioeconomic
data. As a result, African American students in Wake County began
scoring higher on tests, outscoring their counterparts in more segregated
schools throughout the state. “The research is pretty clear
that what matters is the economic mix more than the racial mix if
you’re trying to raise test scores,” says Richard
Kahlenberg, a researcher at The
Century Foundation, who has written extensively about socioeconomic
integration plans, which he says are used in about 40 districts
across the country. “It’s not that black kids do better
when sitting next to white kids, but that low-income kids do better
in a middle-class environment.”
But experts are quick to point out that socioeconomic
integration does not work everywhere to racially integrate schools.
For example, San Francisco’s socioeconomic integration plan,
which uses a race-neutral “diversity index,” actually
created more racial segregation. A 2006 study of 89 of the 100 largest
U.S. school districts showed that school assignments based on exact
family income levels “does not guarantee even a modest level
of racial integration.”
Meanwhile, Powell and researchers at the Kirwan
Institute have been working on better models for promoting racial
integration using race-neutral means. By far the most successful
model uses census data, like median income, median home value, and
parent educational level, to identify “neighborhoods of low
educational opportunity” within districts. They found a high
correlation between residents in these neighborhoods and racial
minorities. They propose that districts design student assignment
plans using their mix of data to break up the concentrated poverty
in these neighborhood schools and, as a byproduct, promote racial
and class integration and boost achievement. “Plans have to
be doable without being too intrusive, address racial isolation,
and be educationally robust,” Powell says. “If you address
racial isolation [without addressing academics], the plan will not
be politically achievable.” Powell is encouraging local districts
to work with nearby universities and to use their research expertise
to help design plans.
Planning for Community Support
Gary Ikeda, the attorney for the Seattle school
district, says officials there are exploring race-neutral measures
like the Wake County model both to promote school quality and to
keep the schools from further racial segregation. “We are
still committed to the value of diversity in schools, so everything’s
being looked at,” he says. But whatever they decide, the plan
will include some kind of parental choice. “We’ve learned
that the community does not support mandatory assignments and busing.
And having choice helped us maintain white [attendance] in our schools,”
he says. “The challenge for any district is not to abandon
their values in terms of diversity and fair play, but to be pragmatic
and find programs the community will support.”
To build that community support, as well as provide
sound legal backing for integration plans, school districts will
have to be much better about explaining the goals of diversity,
experts say. One unintended benefit of the recent Supreme Court
case that will help districts is that all of the social science
research, pro and con, outlining the academic and social effects
of diversity are all contained in friend-of-the-court briefs and
were summarized in a recent report by the National Academy of Education,
says Sneed. (see Roundup of Desegregation Research, page
3).
In truth, experts say, there will be no one solution,
and each may be far from perfect. Trying to racially integrate without
using race will be difficult, to say the least. Every district,
looking at its own demographics and academic needs, is likely to
come up with something different. Justice Kennedy allowed as much,
writing that districts may promote integration through a “more
nuanced, individual evaluation of school needs and student characteristics
that might include race as a component.” Legal experts warn
that some of the confusion about what is allowed may not be clarified
until future lawsuits bring additional court decisions.
In Tucson, Gastellum says plans are underway to
come up with a new race-neutral integration plan, since the district
is technically still under a court order to desegregate its schools.
A return to neighborhood schools would mean heavily minority schools
in the south and west of the district and white schools in the north
and east. Officials have looked at using socioeconomic indicators
but aren’t convinced they would work, so they’re leaning
toward creating more magnet and focus schools within an open enrollment
framework that would base student assignment on a combination of
home neighborhood and lottery. “We value diversity and want
to maintain that at all of our schools,” Gastellum says. “The
world that our kids are going to grow into will be more global.
They’re going to hear lots of languages. It’s important
that they have [multicultural] experiences at an early age in school.
That will help them create different attitudes, different beliefs.
I’d like to think that every one of our graduates will be
interculturally proficient. It’s going to be more difficult
after this Supreme Court case. But we have to try.”
Brigid Schulte is a reporter for the Washington
Post who covered the Supreme Court decision earlier this year.
U.S. Supreme Court decision in the Seattle and
Louisville desegregation cases (collectively referred to as the
Meredith cases):
http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf
NAACP Legal Defense Fund's fact sheet on the Supreme
Court decision and link to friend of the court briefs:
http://www.naacpldf.org/VOLINT/add_docs/volint_home.html
NAACP Legal Defense Fund school integration blog:
http://scintegration.blogspot.com
National Academy of Education summary of desegregation
social science for the past 50 years, iled in friend of the court
briefs:
http://www.naeducation.org/Meredith_Report.pdf
Civil Rights Project study on accelerating resegregation
and the need for integration:
www.civilrightsproject.ucla.edu/research/deseg/reversals_reseg_need.pdf
Kirwan Institute's proposed race-neutral
strategies for integrating K-12 public schools
The Century Foundation profiles of 12 school districts
that use socioecnomic integration: www.tcf.org/list.asp?type=PB&pubid=618
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