In a landmark proclamation today, the U.S. Department of Education’s (USDOE) Office of Civil Rights (OCR) addressed states, school districts and all schools which receive federal funds to draw attention to disparities in access to educational resources. This “Dear Colleague” letter makes clear that:
Chronic and widespread racial disparities in access to rigorous courses, academic programs, and extracurricular activities; stable workforces of effective teachers, leaders, and support staff; safe and appropriate school buildings and facilities; and modern technology and high-quality instructional materials further hinder the education of students of color today.
The letter addresses access to advanced courses and programs by pointing out that:
- almost one in five black high school students attend a high school that does not offer Advanced Placement (AP) courses, a higher proportion than any other racial group;
- In the 2011-12 school year, English language learners represented five percent of high school students, but only two percent of the students enrolled in an AP course;
- of the high schools serving the most black and Latino students in the 2011-12 school year, only 74 percent offered Algebra II and only 66 percent offered chemistry as compared to schools serving the fewest black and Latino students, where 83 percent offered Algebra II courses and 78 percent offered chemistry;
- while black and Latino students represented 16 percent and 21 percent, respectively, of high school enrollment in 2011-12, they were only 8 percent and 12 percent, respectively, of the students enrolled in calculus.
- Schools serving the most black and Latino students are 1.5 times more likely to employ teachers who are newest to the profession as compared to schools serving the fewest of those students;
- Schools with the most students of color are more likely to have temporary, portable buildings and permanent buildings with poorer building conditions, including poorly maintained exterior features such as lighting and walls;
- Intradistrict and interdistrict funding disparities often mirror differences in the racial and socioeconomic demographics of schools, particularly when adjusted to take into consideration regional wage variations and extra costs often associated with educating low-income children, English language learners, and students with disabilities. These disparities are often a result of funding systems that allocate less State and local funds to high-poverty schools that frequently have more students of color, which can often be traced to a reliance on property tax revenue for school funding; and
- teachers in high schools serving the highest percentage of black and Latino students during the 2011-12 school year were paid on average $1,913 less per year than their colleagues in other schools within the same district that serve the lowest percentage of black and Latino students.
So, how will OCR analyze discrimination complaints based on disparate allocation of resources?
First, it will examine if there is intentional discrimination, by asking the following questions:
1) Did the school district treat a student, or group of students, differently with respect to providing access to educational resources as compared to another similarly situated student, or group of students, of a different race, color, or national origin?
2) Can the school district articulate a legitimate, nondiscriminatory, educational reason for the different treatment? If not, OCR could find that the district has intentionally discriminated on the basis of race. If yes, then
3) Is the allegedly nondiscriminatory reason a pretext for discrimination? If so, OCR would find the district has intentionally discriminated on the basis of race.
However, many facially neutral policies have a discriminatory disparate impact. In such cases, OCR will apply the following analysis:
1) Does the school district have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?
2) Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask
3) Are there comparably effective alternative policies or practices that would meet the school district’s stated educational goal with less of a discriminatory effect on the disproportionately affected racial group; or, is the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school district had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.
One key question is how OCR will respond to a claim of lack of funds. USDOE’s response is clear:
Lack of funds does not preclude the duty to act under Title VI. OCR may consider how States, districts, and schools distribute whatever funds and resources are available, as well as how they act to provide additional or sufficient funds, to ensure equal educational opportunities.
Equal educational opportunity requires that all students, regardless of race, color, or national origin, have comparable access to the diverse range of courses, programs, and extracurricular activities offered in our Nation’s schools.
This letter even addresses extracurricular activities by stating that:
Extracurricular activities, especially those that have been shown to support college and career readiness and high academic rigor, must be offered on a nondiscriminatory basis.
Regarding technology, USDOE makes clear that:
OCR evaluates whether all students, regardless of race, have comparable access to the technological tools given to teachers and students, along with how those tools are supported and implemented.
USDOE strongly urges school districts to engage in a self-assessment to determine if these issues need to be addressed at the local level. However, if OCR finds resource discrimination in schools, it will engage in the following possible remedies as applied to coursework, staffing, leadership, instructional materials, school facilities and technology.
- Remedies must effectively end the discrimination and eliminate its effects.
- Remedies must be implemented in a timeframe that is prompt and appropriate given the nature and difficulty of the corrective actions at issue.
- OCR encourages school districts to work cooperatively with leaders, teachers, and support staff (and their unions and associations).
Education advocates have long hoped for such a strong declaration from the USDOE. Now, they must push these issues at the state and local level and file complaints at the federal level if educational resource disparities persist. Time will tell if OCR will effectively remedy these longstanding problems, but today’s declaration is a very good start.
For more information on how I can help you accomplish progressive, effective systems change, contact Jeff Spitzer-Resnick by visiting his web site: Systems Change Consulting.