New Publication Opportunity

Information Age Press has a new publication opportunity for peer-reviewed chapters in a book to be titled "Law & Educational Inequality: Removing Barries to Educational Opportunities." The effort is lead by our friends Susan Bon, Kevin Brady, Karen Miksch & Jeffery Sun. The deadline for chapters is August 15 and publication is expected early next year. More information about the opportunity can be found in this call for papers. 

The Case of High Heels and the First Amendment

Well, I have already written a few pages as a result of this story ... so wanted to pass it along (video is not embedding well, so click link to see the story). 

Thoughts? 

Just to kick it off ... I'm okay with the regulation in this case. I'll say more after people lambast me for that position. 

Whatever you think about this case, it is a wonderful teaching tool and I hope some of you use this scenario in your classes. 

H/T to @jonbecker for bringing it to my attention.

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.