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.

"The processes and procedures for student elections are under review."

MSNBC reported today that the Nettleson School District in Mississippi recently sent around a memo to its middle school students regarding their opportunity to run for class office.  This memo listed each office available in each grade, and then further specified the racial requirements for each office!!!  Even more astonishing than the actual policy of class office segregation by race (if it is possible to be more astonishing) is the school district's tepid, bureaucratic response to the revelation that it continues to practice Jim Crow education by explicit edict.  The title of this post is the meat of the district's response, but I encourage readers to read the whole thing here. 

Unless this is some elaborate hoax, then we have serious problems in this part of Mississippi.  In my education law classes, I routinely remind my students that, just because the Supreme Court has held that a particular action is unconstitutional, one should not expect that the action is never performed in any school district in the country.  But when I say this, I am generally referring to school-directed prayer, NOT de jure racial segregation.  Truly depressing. 

Legal Issues with Test Score Based Teacher Evaluation: A Response to Bruce Baker

Bruce Baker, a professor at Rutgers and one of the best educational statisticians in the country, wrote a fascinating post today about potential legal issues arising from the movement to base teacher evaluations on gains on student assessments. This post is based on that one, so please go read it first if you plan to continue ... 

Being a fellow blogger in the CASTLE blogging network, he asked for my feedback, so I wrote this in reply: 

Bruce, 

You are exactly on point. Both are legitimate legal problems, with the disparate impact being more of the slam dunk in my opinion. The disparate impact numbers would be off the charts and states would have a very difficult time establishing that it is a neutral policy. You start tying that in with school finance stats and other characteristics like age of school buildings and the picture is going to get very dark, very fast (no pun intended). This would have to be a disparate impact case, though, not a disparate treatment case (http://bit.ly/GpQJp) and since it is disparate impact, a class would likely be formed -- i.e. someone would need to invest money on the front end of this case to organize it - thus, the NAACP or some kind of organization like that would probably get involved. 

The Due Process argument would be a harder (and much less profile) case, but it could be brought individually ... so we might start seeing a whole lot more of these. Your identified problems in the statistics I think are great, but you are one of the best statistical minds in the education field. Your average joe-blow lawyer would have a really tough time making that case. And, as long as these cases stayed at the district court level, that case would have to be made over and over and over again by lawyers in each distinct community within each distinct state. If those cases rose to the level of the Circuit courts or the Supreme Court, that would save lawyers some work, but it would still be a costly case to put together and perhaps not worth it to the teachers. Anyway, I think you are right on with the legal analysis, but I think a lot of things in the US don't make statistical sense, but the legal system is just not competent enough to always tease that out.

Another legal problem this would create is that if teacher evals were 50 or 51 percent based on test score improvements ... it would make it even more difficult legally to get rid of bad teachers whose student test scores happened to go up. You can put a bad teacher in front of an AP class, and those kids are still going to excel on the test. If that bad teacher has a bad personality, treats parents badly, or any other negative qualitative component for which she would otherwise be dismissed or non-renewed, the test score based evaluation just gave that teacher a silver bullet in court. Probably like your law person there at Rutgers, I teach my principals to not give a reason to pre-tenure teachers when RIFing, because if you give a reason, then you have to defend it in court. These polices not only give a reason, but they give a reason that is largely outside of the principal's control. Even if it winds up that courts still think that 40% negative qualitative evaluation is enough to still RIF or dismiss a teacher, the number of lawsuits is likely to go up dramatically.       

Generally, all this is what happens when you start forcing statistics in the legal system - which is not built for that at all. The legal system is a very qualitatively oriented system, making decisions mostly based on evidence obtained through interviews and the like. The jury, even, is a qualitative system that collectively makes a decision based on all the evidence presented. Statistics throw a wrench in all that because people react differently to numbers. They think numbers don't lie (although, of course, we know that they can and do). That's why generally, I don't love policies that seek to make decisions based solely on numbers - these kinds of things are the result.

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.