Last Month’s SCOTUS Case Is an Education Burrito with Civil Rights on the Side in a Fair-Housing Wrapper
To date, I’ve mostly shared FERPA musings on the EdJurists Blog, but after reading an article published last month in the Wall Street Journal and perusing the SCOTUS’ docket this term, I decided to tackle a different issue—even at the risk of jading readers by my incorporation of sociology and economic theory. So let’s start with a game I’ve cribbed from Sesame Street.
Which one of these is not like the other: school choice; school resource allocation; educational achievement outcomes; and the Fair Housing Act? Though their relationship may not seem intuitive at first blush, race, school choice and resource allocation, educational achievement outcomes, and the Fair Housing Act may be may indeed by intimately related. Uncovering the effect of neighborhood and school racial composition or the interaction between any two of these concepts, however, is a difficult endeavor for several reasons. First, extricating racial composition effects at the neighborhood and school level requires carefully sorting these effects from the many facets of neighborhood and school quality, including differences in student abilities and family background. Second, and perhaps more importantly, “racial mixing is not accidental but instead an outcome of government and family choices” (Hanushek, et al., 2006). Legal regimes at the federal, state, and local levels, as well as household residential decisions integrally form the racial composition of neighborhoods and schools. For instance, the Brown v. Board of Education Supreme Court decision precipitated massive national and state movement to desegregate local school districts. Over the intervening sixty years, however, the wide variation in patterns of school desegregation intensity and white flight from the urban landscape adds to distinct differences among jurisdictions, school districts, neighborhoods today (Hanushek, et al., 2006).
Recent studies in North Carolina (Billings, et al., 2014), Tennessee (Smrekar & Goldring, 2009), Texas (Hanushek, et al., 2006), among other places, have again made relevant and evident the link between housing and zoning policy and education policy (see also Schwartz, 2010; Vigdor, 2011). Their findings demonstrate that, as students and their families’ school choice options are reduced, typically by a zoning regime that assigns neighborhood schools—with the exception of magnate schools—student achievement outcomes decline; conversely, as school choice increases, student achievement outcomes outpace those for students and their families with fewer educational options, and particularly for students, regardless of their race, in neighborhood schools where minority students comprise the majority demographic population (Billings, et al., 2014; Smrekar & Goldring, 2009; Welnar & Spindler, 2009; Hanushek, et al., 2006). The resulting achievement gaps, as measured by standardized achievement scores, between students with increased school choice options and their counterparts without are rather consequential. For instance, Smrekar & Goldring find that these gaps amounted to: thirty-seven points in reading and forty-three points in math (Smrekar & Goldring, 2009). For those on the short end of the achievement gap, this deficit represents diminished labor prospects and quality of life in later years (Massey, 2007).
These findings seem to indicate that a widening, not decreasing, inequality, despite efforts by school districts to mitigate the effect of de facto segregation through compensatory resource allocation (Billings, et al., 2014). Massey (2007) argues that these effects are exacerbated by exclusionary housing lending and neighborhood restrictions, which shamefully still occur, resulting in what Massey has called a “new ecology of inequality” as manifested by spatial separation between races and a new de facto segregation of schools. Perhaps problematically, resolving the very issue that desegregation sought to achieve—interracial interfacing to promote equality of opportunity—requires a legal solution informed by empirics.
Traditionally, the court system has been wary to entangle itself in legal questions that require empirical methods to be resolved. Luna (2006) opines that this may be because the law is concerned with certainty, while empirical solutions are prone to bias and proffered with a certain level of uncertainty. However, the line on constitutional precedent borne from the Equal Protection Clause of the Fourteenth Amendment and its basis in civil rights legislation, has given rise to a number of legal claims which require an empirical foundation to meet the burden of proof. For example, a claimant may prove a violation of Title VII of the 1964 Civil Rights Act, by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class (which includes laws include race, color, religion, national origin, gender, and depending on the legislation, other traits such as disability) as compared with non-members of the protected class. This burden of proof is almost always met by demonstrating this disparity through empirical measures and methods.
Last month, the Supreme Court heard oral arguments to resolve whether the Fair Housing Act of 1968 creates a cause of action for disparate impact in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. This marks the third effort three years by Court to consider both the intent and scope of the Fair Housing Act. Ostensibly, before the Court is a case about whether a viable legal claim of disparate impact under the Fair Housing Act exists. However, as the foregoing discussion has revealed and our title makes mention, the Court’s decision will almost certainly have implications on school choice, school resource allocation, and educational achievement outcomes as well.
Billings, S.B., Deming, D.J. & Rockoff, J. (2014). School segregation, educational attainment and crime: Evidence from the end of busing in Charlotte-Mecklenburg. Quarterly Journal of Economics, 435-476.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
Hanushek, E.A., Kain, J.F. & Rivkin, S.G. (2009). New evidence about Brown v. Board of Education: The complex effects of school racial composition on achievement. Journal of Labor Economics 27, 349-383.
Luna, A.L. (2006). The faculty salary equity cases: Combining statistics with the law. Journal of Higher Education, 77, 193-224.
Massey, D.S. (2007). Categorically unequal: The American stratification system. Russell Sage Foundation: New York, NY.
Orfield, G. & Frankenberg, E. (2014). Brown at 60. Los Angeles: The Civil Rights Project at UCLA. Los Angeles, CA: UCLA.
Smrekar, C.E. & Goldring, E.B. (2009). Neighborhood schools in the aftermath of court-ended busing: Educators’ perspectives on how context and composition matter, in From the Courtroom to the Classroom: The Shifting Landscape of School Desegregation. Cambridge, MA: Harvard Education Press.
Schwartz, H. (2010). Housing policy is school policy: Economically integrative housing promotes academic success in Montgomery County, Maryland. New York: The Century Foundation. http://tcf.org/publications/2010/10/housing-policy-is-school-policy.
Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., Nos. 12–11211, 13–10306. (5th Cir., Mar. 24, 2014).
Vigdor, J. (2011). School Desegregation and the Black-White Test Score Gap, in G. Duncan & R. Murnane (Eds), Whither Opportunity?: Rising Inequality, Schools, and Children’s Life Chances. New York: Russell Sage.
Welch, F. & Light, A. (1987). New evidence on school desegregation. Washington, DC: United States Commission on Civil Rights.
Welner, K.G. & Spindler, E.R. (2009). Examining School Districts’ Policy Options for Mitigating Racial Segregation, in C.E. Smrekar & E.B. Goldring (Eds.), From the Courtroom to the Classroom: The Shifting Landscape of School Desegregation. Cambridge, MA: Harvard Education Press.