CA Supreme Uphold In-State Tuition for Undocumented Students

The California Supreme Court bucked the general anti-immigrant trend of recent months by upholding the state's policy of providing in-state college tuition at California colleges and universities for undocumented students who spent their final three years of high school in a California high school.  The San Francisco Chronicle's article is here; LA Times here.

The issue has been generating a fair amount of discussion lately.  In 1982, the US Supreme Court ruled in Plyler v. Doe that states could not exclude undocumented children from public primary and secondary schools; the obvious next question was whether states could exclude such students from public higher education.  The California case answers a secondary question - can a state (that, like California, has chosen to allow enrollment of undocumented students) charge only in-state tuiition to undocumented students living in the state, albeit illegally?  The California Supreme Court says yes; the plaintiffs - a group of citizens living outside of California (who therefore do not receive in-state tuition) - vow to appeal to the U.S. Supreme Court.  There are interesting questions of federalism, similar to those raised by Arizona's recent immigration legislation, but from an educational perspective, the arguments from both sides are similar to those raised in Plyler.  The most significant difference is that Plyler involved a wholesale denial of education, whereas this case is about how much people have to pay for education - a distinction which may have constitutional significance.

Look for more on this topic to come up at the AALS annual meeting in San Francisco in January - the Education Law section's program (co-sponsored by section on Immigration Law) is on the topic "Immigration and Higher Education."

Kiel on Hurricane Katrina and the Brown Legacy

Our own Daniel Kiel has posted to SSRN a draft of his forthcoming piece, entitled, It Takes a Hurricane: Might Katrina Deliver for New Orleans Students What Brown Once Promised?  Daniel presented this piece last January in a special session of the AALS Annual Meeting focusing on education in New Orleans after "The Storm."  You can download the full text of the draft here. 

Here is the abstract:

Presented as part of a program for the AALS Education Law section entitled “Five Years After Katrina: Access to Education,” this article places post-Katrina education in New Orleans directly in the line of education reform triggered by the decision in Brown v. Board of Education in 1954. The article agues that post-Katrina New Orleans represents the pursuit of the same goal pursued by the Brown plaintiffs: improved access to educational opportunities for students, most of whom are African American, not being equitably served by the status quo. The article then frames these two moments – the Brown decision and Hurricane Katrina – as inertia-jarring events in the history of New Orleans public education and compares the responses to these two hurricanes (one figurative, one literal).

Connecting the post-Brown and post-Katrina eras, the article focuses on themes common to both – state intervention in New Orleans schools and an increase in choice for students – and details the ways in which the response to one has shaped the response to the other. Looking at ways the city has learned from the Brown era and the ways in which the city seems on a path to repeating some of that era’s mistakes, the article argues that success or failure in post-Katrina public education will be impacted by the city’s post-Brown experience. Specifically, although the motivation behind state intervention is clearly different than it was during the Brown era, there remains skepticism about the role of the state in providing for New Orleans public schools.

Further, despite having made choice far more widely available after Katrina than it had been before, the potential for a return to a stratified system of schools – and the class- and race-based resentment such stratification engenders – could threaten the public support New Orleans public schools currently enjoy.

The progress of public education in New Orleans is important beyond the boundaries of Orleans Parish. Post-Katrina New Orleans serves as the pivotal proving ground for the use of increased choice and charter schools to provide more equitable access to quality education. With 61% of New Orleans public school students enrolled in 51 charter schools (both numbers by far the highest in the nation), post-Katrina New Orleans represents an opportunity for the choice movement to demonstrate success on a large scale. Success in New Orleans will lead to broader choice in struggling urban districts across the country. Conversely, failure to deliver improved access to quality education will reverse the current upward trajectory of the choice movement.

Given the stakes, the New Orleans public schools are likely to be among the most scrupulously evaluated in the coming years. However, as scholars and advocates begin evaluating this reform effort and continuing to shape the future of public education in New Orleans, it is imperative to recognize the ways in which the story that precedes the hurricane shapes and impacts the story unfolding in its wake. This article serves will help ensure that happens.

If reformers in New Orleans are able to focus on the goal of increasing access to quality educational opportunities, then the chance created out of the tragedy of Hurricane Katrina will not be wasted. It would be beautifully ironic if, thanks in part to a hurricane, the schools in the city whose segregated railcars gave us Plessy v. Ferguson could finally deliver on that elusive promise of Brown to provide more equitable access to quality educational opportunities.

Setback for Socioeconomic Diversity Plans

Socioeconomic integration, which for some time was positioned as a race-neutral option that could achieve some level of school diversity without triggering strict judicial scrutiny, took a significant hit a couple weeks ago.  In Wake County (Raleigh), North Carolina – one of the largest district to utilize an assignment plan aimed at socioeconomic integration – the school board voted 5-4 to abandon the plan in favor of a neighborhood schools assignment plan. 

The arguments for and against socioeconomic integration are not especially novel, but they are worth evaluating in order to place the developments in Wake County in a broader context.

Why Socioeconomic Integration?  There are two main arguments in favor of socioeconomic integration plans, one practical and one policy.  The practical argument is that in a world where race-conscious school assignments are strongly discouraged if not forbidden, socioeconomic integration assignment plans have the advantage of removing the likelihood of a plan being struck down as unconstitutionally considering race.  Thus, these plans are far more likely to be upheld than a racial integration plan (at least for school districts that are not under court ordered desegregation plans) and given the unfortunate correlation between race and socioeconomic status, they may still provide some level of racial integration as well, albeit in a race-neutral way.

Second, the policy argument for student assignment aimed at socioeconomic integration is based upon the multitudes of data that high concentrations of poor students do not typically lead to strong schools.  Socioeconomic integration, then, can eliminate schools with such high concentrations of poor students by spreading students of all socioeconomic backgrounds across the district. 

Some go so far as to say socioeconomic integration is even better educational policy than racial integration since it is typically high concentrations of poverty – even more so than high concentrations of minority students – that correlate with poor school performance.  Socioeconomic integration, the argument goes, is better targeted at the problem than is racial integration – and the fact that it is less constitutionally suspect is a bonus on top of that.

Why Not Socioeconomic Integration?  Socioeconomic integration – like all well-meaning education reform ideas – has been criticized as being both too much and not enough.  On the “not enough” side, advocates of racial integration point out that 1) socioeconomic integration does not actually result in a significant level of racial integration; and 2) focusing exclusively on economics discounts the significant role race continues to play in educational opportunity.  They see it as a constitutionally safe solution that will not effectively address the problem of racial disparities in the education system.

In the “too much” camp, critics argue, including those at work in Wake County, focus on the displacement of students resulting from achieving a requisite level of socioeconomic diversity by transporting students across a metropolitan area.  This argument mimics those made against busing for racial diversity and feeds into advocacy for neighborhood schools.  Underlying the argument is the sense that educational quality must be being sacrificed somewhere for the sake of diversity – the most likely losers, it is assumed, are those who had something to lose in the first place: students from wealthier socioeconomic backgrounds.

In Wake County, the neighborhood schools argument seems to have carried the day.  This development is obviously a setback for advocates of school diversity (racial or socioeconomic), but the lesson for diversity advocates is clear and has been for some time: unless the case is sufficiently made that a diversity plan is enacted for an educational benefit for all students (i.e., not diversity for the sake of diversity), then the backlash from those who do not see the personal value to their children will always threaten to swallow good intentions and even good policy.  This happened in the implementation of desegregation following Brown v. Board of Education.  It happened in the aftermath of race-conscious affirmative action programs at the university and grad school level.  And it has now happened with a race-neutral socioeconomic integration plan.

Mixed Early Results from Innovative Assignment/Integration Plan

In 2007, the Supreme Court declared the Jefferson County (Louisville) Public Schools’ student assignment policy – a plan that required an African American student enrollment of between 15 and 50 % in all non-magnet schools – to be unconstitutional (PICS v. Seattle School District).  The guidelines had initially been devised so that the district would comply with the mandate from Brown v. Board of Education to eliminate the vestiges of racial segregation in schooling, but by the time of the Court’s decision they were no longer court-mandated.  Rather, the district embraced the goal of diversity by maintaining the strict racial guidelines after having been freed from court supervision.  

The Court struck down this voluntary diversity plan as inconsistent with Brown itself.  Justice Anthony Kennedy, the crucial fifth vote for striking down the plan, wrote a partial concurrence that dared a district to come up with a plan for diversity that used race in a more limited way that would not offend Justice Kennedy – errr, the Constitution. 

JCPS took the bait and, drawing from a similar plan in Berkeley that was upheld in California state court last year, adopted a more nuanced student assignment plan that it hoped would maintain the diversity the district (and its parents, according to surveys) sought. 

In short, the new plan labels neighborhoods throughout the district as either Area A or Area B.  Neighborhoods labeled Area A would be those where:

(a) median income is below the county average;

(b) median adult educational attainment is below the county average;

AND

(c) the percentage of non-white students is above the county average. 

If any of these three criteria were not met, then the neighborhood would be labeled Area B.

Each school is then required to have enrollment between 15 and 50% of students from Area A.  The goal is to avoid high concentrations of students from lower socioeconomic, lower educated, and higher minority neighborhoods and to provide all students with more diverse schools.  Leaving aside the constitutional questions raised by the new plan (which I take a stab at answering here) and some debate about the strategic wisdom of pursuing integration (which I explicitly am not weighing in on), the big question is whether it will successfully maintain diversity in the JCPS schools.

The early results are mixed.  According to a January report from the district, only 42 of the district’s 90 elementary schools fall between the 15-50% Area A range.  The first explanation for this result is that students in grades 2-6 were grandfathered in – meaning no student would be forced to leave her current school to satisfy the new diversity guidelines.  While reasonable, this does not help explain why even just considering the 1^st grade (unaffected by the grandfathering), only 43 schools are within the range.  Some schools are close to the range, but others have very high concentrations (above 80%) on either end of the spectrum.  The district’s spin is that most schools are at least moving in the right direction.

On one hand, it is encouraging that so many JCPS elementary schools (nearly half) already have a significant mix of students from differing socioeconomic, educational, and demographic backgrounds.  However, the difficulty in even this district – one where there is both extraordinary public support for school diversity and demographics making meaningful diversity possible – of avoiding the isolation of high-risk students known to make effective education more difficult should give pause to advocates for integration as the primary tool for educational improvement.

It is, of course, far too early to judge the success of the new JCPS plan.  At the very least, the district is thinking outside the box to provide its students and its community with diverse schools and to provide a tool to other districts interested in and capable of achieving similar diversity in a constitutional way.  Stay tuned.