Remedying Disparate Impact in Education
By Dianne Piche, June Zeitlin, Sakira Cook, and Max Marchitello
In 1954, Brown v. Board of Education of Topeka (347 U.S. 483) launched a revolution that changed the world. The Supreme Court decision not only outlawed school segregation, it also inspired an era of civil and human rights progress for all Americans. A unanimous Court in Brown described the importance of education in terms that are as relevant now as they were nearly six decades ago:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Yet our nation continues to be plagued by conditions of inequality and deprivation in schools the minority poor are required by law to attend. Today, the dream of Brown—equal educational opportunity for all American children—remains a dream deferred.
Though many Americans may consider ensuring quality education for all children to be an insurmountable challenge, this is not the case. In this article, the authors pose some alternative ways of thinking about and enforcing the right to education through the dual and related lenses of the “disparate impact” theory of liability under Title VI of the Civil Rights Act of 1964 and international human rights law. Applying an international human rights framework to promote an affirmative right to education, together with bolder enforcement of civil rights laws that address disparate impact, will shift the discussion from educational inputs to educational outcomes. Using international treaties as a legal underpinning emphasizes the need for government to eliminate discrimination and specifically provide access to quality education for all children— the vision and promise of Brown.
What Happened on the Road from Brown to Obama?
The concept of a federal right to education has been steadily eroded to the point where federal court litigation is no longer a reliable tool to achieve educational justice for minority students.
Any hope that Brown and its progeny would be used to require states to equalize their educational systems based on wealth and class was erased by the Supreme Court in its decision in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), where the Court upheld the constitutionality of Texas’s state system of school finance. Texas, like many other states, relied heavily on local property taxes to fund its public schools. The Rodriguez Court held that the system did not violate the Equal Protection Clause of the Fourteenth Amendment and that wealth would not be subject to the heightened scrutiny reserved for race and national origin classifications. The Court also decided that education was not a “fundamental right” under the federal Constitution.
Rodriguez forced students and education officials in under-resourced school districts—often enrolling high proportions of minority students—to mount legal and political advocacy on a state-by-state basis. Predictably, however, in the nearly forty years since Rodriguez, we now have a confusing patchwork of state court rulings. In those states where courts have ordered improvements in resource allocation, there has been widespread noncompliance.
In the 1990s, the Supreme Court further curtailed federal education rights in a trilogy of cases from Oklahoma City; DeKalb County, Georgia; and Kansas City, Missouri. The Court signaled to states and districts that had maintained de jure systems that far less than complete elimination of all vestiges of segregation and its effects would be required of them. The impact of these decisions, in the aggregate, was a watering down of standards districts are required to meet in order to meet unitary status. The cases also provided a quick and easy exit strategy for districts and states seeking to avoid further compliance with federal court orders and desegregation agreements. While the Court later articulated standards for voluntary integration plans in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), it is not likely to recognize an affirmative right to education in the foreseeable future.
The constitutional right to education that has survived into the Roberts Court is a limited right: of children residing in the United States to attend a public school free of intentional discrimination on the basis of race and other protected categories. While Brown and its progeny clearly established a federal right for children to be free from governmentsponsored segregation (and other invidious discrimination), the federal courts in the main did not require more than a minimal set of educational inputs. Moreover, administrative enforcement of Title VI by the Department of Education’s (the Department’s) Office for Civil Rights (OCR) has proven insufficient to bring about systemic improvement in reducing resegregation, excessive discipline rates experienced by minority students, or inequitable resource allocation to schools.
Disparities in Achievement, Resources, and Student Discipline
Nearly six decades after Brown, gross disparities in academic achievement, resource allocation, and student discipline persist. Highquality public education is not “available to all on equal terms,” as the Supreme Court mandated in Brown. Simply put, the public school system in this country is failing millions of children—especially children of color, poor children, English learners, and those with disabilities. (Due to space, however, the focus of this article is on students protected from discrimination on the basis of race, color, or national origin.)
How bad is it? Only last year, the National Assessment of Educational Progress (NAEP) reported that half of African-American and Latino fourth-graders lacked even a basic level of reading and literacy skills (compared to 22 percent of whites). In mathematics, the United States continues to lag behind our international competition. While we have seen some remarkable improvement in progress from below-basic to basic achievement, only 12 percent of African-American and 18 percent of Latino students have reached the levels of “proficient” or “advanced (compared to 33 percent of whites).
These achievement disparities are exacerbated by the disproportionate dropout rates for these student populations. In 2009, African-American students dropped out of high school at an annual rate of 9.3 percent and Latino students at a rate of 17.6 percent, while their white counterparts exit school prematurely at a rate of 5.2 percent.
Race-based achievement gaps often correlate with significant shortfalls in the resources allocated for underprivileged communities. A 2011 Department report confirmed that school districts habitually underfund schools enrolling higher proportions of low-income and minority students. Based on 2008–09 school year data, the report found that “from 42 percent to 46 percent of Title I schools (depending on school grade level) had per-pupil expenditure levels that were below their district’s average for non-Title I schools at the same grade level, and from 19 percent to 24 percent were more than 10 percent below the nonTitle I school average.” More recently, following a trend in state court litigation, a state trial court in Colorado determined that the state’s school finance system was both inadequate and unequal, violating the state’s constitutional guarantee for a “thorough and uniform system” of public education.
Another factor related to achievement gap is the persistence of race-based disparities in school disciplinary actions. According to the Department’s Civil Rights Data Collection, in the 2008–09 school year, black students were suspended nearly three times more frequently than white students. In 2010, OCR opened compliance reviews in two school districts that reported suspending twothirds of their African-American male students in a year. Latino students were suspended more than two times as often as whites. Students with disabilities, especially those of color, experience higher rates of suspension and are far more often subjected to physical seclusion or restraint. Although school discipline codes are facially neutral, their impact on these student groups has been injurious.
Changing the Paradigm
All of these conditions are associated with significant disparities in educational outcomes for low-income and minority students. A campaign by the administration and advocates to challenge educational policies and practices that result in a disparate impact would emphasize the need for positive student outcomes—for example, staying in school, academic achievement, college-readiness. And public officials might be required to finally begin to address the patterns of policy—systemic discrimination that adversely impacts students of color.
Viewed this way, substantial outcome disparities between student groups would be treated as legal violation wrongs that would trigger positive remedies. So, too, could policies and practices like inequitable systems of resource allocation (including qualified, effective teachers) and disciplinary rules that have
a disparate impact on children of color, students with disabilities, and English language learners.
While the Fourteenth Amendment and the Title VI statute require proof of intent to discriminate, the Title VI regulation does not and includes an effects standard. The Supreme Court determined in Alexander v. Sandoval, 532 U.S. 275 (2001), however, that there is no private right of action to enforce this provision. This decision severely limited the ability of private plaintiffs to pursue legal remedies for policies and practices with an adverse, disparate impact. Fortunately, the disparate impact provision can still be invoked by federal agencies on behalf of people who experience unintentional but demonstrable discrimination. The Department has the ability to resolve complaints and to conduct compliance reviews against states, districts, and schools for practices that create a disparate impact on students. By accelerating investigation of egregious cases of disparate impact, the Obama administration can take significant steps toward enforcing the law, protecting students’ right to education, and guaranteeing that all students are actually afforded a quality education.
This approach, with its emphasis on addressing outcomes, is consistent with international human rights norms and standards. The international human rights framework, which the United States helped to develop when the United Nations was founded, focuses on realizing affirmative rights as well as protection from denial of such rights. Within this framework, the government’s role is clear: to respect and ensure the rights of individuals. At the very basic level, respect involves not violating one’s rights, while to ensure is an affirmative obligation to protect rights, investigate and punish rights violations, and promote and fulfill rights. This holistic view considers rights to be indivisible, interrelated, and interdependent and acknowledges that all must be considered in order to effectively address social ills. It places the onus on governments to create policies based on human rights principles that effectively combat discrimination in all of its forms and to take affirmative steps to implement and monitor human rights obligations domestically.
Education As a Human Right
As enumerated in the Universal Declaration of Human Rights (UDHR), and further expanded in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ESCR), human rights are those that are essential to live as human beings—basic standards without which one cannot enjoy equality and dignity. These treaties serve as the blueprint for all rights and the foundation for the development of the human rights framework, universal norms,
The right to education appears specifically in several human rights instruments, including the UDHR (Article 26), the ESCR (Articles
13 and 14), the Convention on the Rights of the Child (CRC) (Articles 23(3), 28, 29, and 33), the International Convention on the Elimination of Racial Discrimination (ICERD) (Articles 2(2), 5(e)(iv), and 33), and the Convention on the Elimination of Discrimination Against Women (CEDAW) (Articles 10 and 14(2)). (While the United States has endorsed the UDHR, which is comprehensive and inclusive of the right to education, the only one of thesetreaties the United States has ratified is CERD, which includes a binding commitment on the nation to implement its provisions.)
The right to education, when it was first recognized internationally, focused on access and established an entitlement to free, compulsory primary education for all children; an obligation to develop secondary education, supported by measures to render it accessible to all children, as well as equitable access to higher education; and a responsibility to provide basic education for individuals who have not completed primary education. Unquestionably, progress in that regard has been made. However, achieving the goal of assuring every child a quality education that respects and promotes his or her dignity and optimum development has necessitated a broader focus.
A recent report by the United Nations Educational, Scientific and Cultural Organization entitled A Human Rights Based Approach to Education for All describes the rights-based approach to education for all as a holistic one, encompassing access to education, educational quality (based on human rights values and principles), and the environment in which the education is provided. This approach integrates the norms, standards, and principles of international human rights into the entire education process from development to programming, including plans, strategies, and policies. It specifically considers the effect that the policy will have rather than focusing on its intent. And in doing so, it enables us to reevaluate our current systems and assess those inputs that directly affect a child’s ability to receive
a high-quality education. As applied, it seeks to create greater awareness among governments and other relevant institutions of their obligations to fulfill, respect, and protect human rights and to support and empower individuals and communities to claim their rights.
The Committee on ESCR describes it best in its General Comment No. 13, which states that “education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.” Stated another way, without the right to education, realization of all other rights becomes impracticable. This is the very foundation of Brown.
Although no affirmative constitutional right to education has been recognized in this country, it is important to note that the United States is accountable for moving toward the realization of the right to education in the context of its international treaty obligations. In particular, as a party to ICERD and the ICCPR, the United States is required to file a periodic report to each committee, detailing how it has successfully implemented each provision. Responding to those reports with respect to education, both ICERD and the ICCPR noted with great concern “the persistence of de facto racial segregation in public schools; the persistent ‘achievement gap’ between students belonging to racial, ethnic or national minorities, including English Language Learner (ELL) students, and white students; and the alleged racial disparities in suspension, expulsion, and arrest rates in schools [that] contribute to exacerbat[ing] the high drop-out rate and the referral to the justice system of students belonging to racial, ethnic or national minorities.”
Further, the committee recommended that the United States take steps to adopt all appropriate measures to “elaborate effective strategies aimed at promoting school desegregation and providing equal educational opportunity in integrated settings for all students and enact legislation to restore the possibility for school districts to voluntarily promote school integration in accordance with article 2, paragraph 2 of the convention.” Also, the committee urged the United States to take special measures to reduce the achievement gap, improve the quality of education for all students, and encourage school districts to review “zero-tolerance” school discipline policies. It is no surprise that these recommendations by the committee are directly related to the pervasive problems within our education system as stated above.
American Public EducationThrough the HumanRights Lens
There is broad agreement that the current approaches employed to achieve the goal of quality education and eliminate discrimination are inadequate. Need-based and servicedelivery approaches fail to acknowledge or address the complex barriers that impede children’s access to school, attendance, completion, and attainment and, in so doing, inhibit progress in closing the gap among underserved communities.
By contrast, a human rights framework for confronting systemic inequities in the American public education system would emphasize outcomes rather than inputs or access. Under this framework, neutral policies crafted as an attempt to eliminate discrimination and ensure all students have an equal opportunity would be considered ineffectual given the persistence of wide disparities in educational outcomes.
What would it mean to apply a human rights framework to education? In the context of school discipline, for example, while our current practice to address discipline issues is often to remove the student from the class, under a human rights approach, one would conclude that both out-of-school and in-school suspensions prohibit students from participating in the daily activities inherent to quality schooling and arguably violate their right to education. A human rights approach would involve intervening in an effective and holistic way, determining the child’s needs, and attempting to meet them.
Utilizing disparate impact theory is one way to begin to implement the human rights framework through disparate impact cases against states, districts, and schools, there would need to be new solutions to improve education for all that may exist beyond the current educational paradigm. As disparate impact cases highlight discrimination in our public education system, adopting the human rights framework will help to develop new, holistic solutions. It is premature to speculate on exactly what proposals could grow out of the implementation of a human rights framework; however, it is certain that they will be more comprehensive and cross-cutting rather than isolated; reflective of all student needs; cognizant of the results of the policy; and cognizant of all students’ right to education.
The United States is a world leader in advancing human rights and promoting basic civil and political rights and equality around the globe. Yet, application of the international human rights framework has generally not occurred domestically; rather, the pursuit of civil rights and social justice in the United States has rested primarily on rights guaranteed by the Constitution and our domestic laws. Unquestionably, there have been substantial improvements in domestic law prohibiting discrimination with the passage of the Civil Rights Act, the Voting Rights Act, the Americans with Disabilities Act, and many others. Yet we still fall short in successfully eliminating discrimination at its root, a failure that may be attributed in part to our focus on proving intent.
Through the human rights framework, we have an opportunity to define a clear mandate for our government, the private sector, and our nation to dramatically improve public education in America.
Dianne Piche is senior counsel and director of education programs, June Zeitlin is senior counsel and director of the Convention on the Elimination of Discrimination Against Women program, Sakira Cook is policy research associate, and Max Marchitello is William L. Taylor Policy Fellow at the Leadership Conference on Ci´vil and Human Rights.
Published in Human Rights, Volume 38, Number 4, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.