Disparate thinking: The administration’s blind eye & racially disparate impact

Posted on February 15, 2011



Apparently the U.S. Department of Education has decided to take on public education policies that not only are intentionally racially discriminatory, but also state and local policies that happen to have a racially disparate impact on certain populations. Now, these are departmental regulations, not statutes and not a constitutional protection, so this doesn’t mean that advocates can start filing lawsuits on behalf of groups disparately affected by education policies (except where other state laws prohibiting disparate impact exist, like Illinois). But, it does mean that the U.S. Department of Education can use its biggest available threat – denial of funding – to pressure state and local education agencies to change policies that result in racially disparate impact.

Statistically, what disparate impact means is that the policy in question results in a disproportionate effect on one group of individuals versus another, where “groups” are defined by race, ethnicity or national origin. There are many occurrences in public education where racially disparate impact rears its ugly head. For example, racially disparate classification rates of children with disabilities, or racially disparate rates of disciplinary action. Identifying appropriate policy changes to reduce racially disparate impact in any of these areas, while not compromising other interests is indeed important – such as making sure that kids with legitimate special education needs still get identified and served, or making sure appropriate discipline is handed out where necessary.

The administration’s renewed interest in racially disparate impact was announced almost a year ago, and has apparently crept back into the conversation in the past few weeks.

Here’s the Education Week synopsis:

At the Feb. 11 briefing, Ricardo Soto, the deputy assistant secretary for the Education Department’s office for civil rights, elaborated on the office’s new policy, saying that the Obama administration is “using all the tools at our disposal,” including “disparate-impact theory,” to ensure that schools are fairly meting out discipline to students. Some research shows, for instance, that suspension rates for African-American males in middle school can be nearly three times as high as those for their white, male peers.

So, the interest here is specifically the racially disparate distribution of disciplinary actions. That’s all well and good. We should explore these issues and resolve them appropriately if we can. Once again, the usual target is local public school districts because when it comes to any of today’s education policy issues – in the eyes of the current administration and their closest advisers – only local public districts and local administrators can be to blame (even when it comes to funding disparities?).

But, as my readers know, this a school finance blog, and that means that eventually this topic is coming back around to school finance (okay, not always). Could it possibly be that some states actually continue to operate state school finance formulas that produce “racially disparate” effects? That is, that districts serving larger shares of minority children have systematically (statistically) less state and local revenue (the revenue under control of state policy) than districts with fewer minority children? And if so, which states might those be?

Clearly, substantial disparities in the quality of education received (funding, class sizes, teacher credentials, etc.) by minority children as a function of state policies to provide, or not, sufficient financial support to their schools is at least equally relevant to rates of discipline referrals of minority versus non minority children attending the same school or district.

In our report Is School Funding Fair?, We evaluated states in terms of whether they provided for systematically more or less state and local revenue per pupil in higher versus lower poverty districts.  Now, which states did the worst on this measure? Among the big ones, the most poverty disparate states in funding were Illinois, Pennsylvania and New York! New York makes this list largely because of its Pork barrel finance policies. And believe, me, Pennsylvania and Illinois have similar pork to shred. But poverty related disparities while important, don’t fall under this racially disparate impact umbrella. The real question here is which states have the largest racial disparities in school funding?

A few years back, Robert Bifulco, now at the Maxwell School at Syracuse, did a nice quick number crunch on black-white funding disparities nationally, in the Journal of Education Finance. On average, Bob found that without any corrections for costs related to student needs, or other costs, districts with higher concentrations of black enrollments had marginally higher per pupil spending. But after correcting for costs and needs, districts with higher black enrollments had lower per pupil spending. But, these findings, while interesting and useful, look at the nation as a whole, and, if I recall, do some breakouts by region.

Just like the poverty related variation we show in the fairness report, racial disparities in funding also vary widely across states. And those disparities occur for a variety of reasons. Yes, to some extent those disparities exist because of differences in local property wealth in blacker versus whiter communities and the state’s failure to allocate sufficient aid to offset those disparities. And in many places, those disparities in property values are largely a function of carefully planned racial segregation of housing stock and distribution of other property types (Brilliant article on real estate development in the Kansas City metro: http://www.tulane.edu/~kgotham/RestrCovenants.pdf)

BUT CAN A STATE LIKE NEW YORK REALLY CLAIM THAT THERE’S  JUST NOT ENOUGH AID AVAILABLE TO FIX THE RACIAL DISPARITIES WHEN IT IS DUMPING TAX RELIEF AID AND MINIMUM FOUNDATION AID INTO THE WEALTHIEST DISTRICTS IN THE COUNTRY? Redistributing the pork might not erase the disparities entirely, but it’s a start.

Other disparities actually exist by the design of the aid formulas, and various Tricks of the Trade that create racial disparities in funding – deceptively and arguably quite intentionally. Here’s an outstanding sarcastic, critical analysis of how Kansas legislators gamed their finance system to embed racially disparate effects over time: http://www.pitch.com/2005-04-14/news/funny-math/ (after reading this, consider the role of real estate development addressed in the Kansas City article above!)

Quick side-bar – This brilliant piece of school finance journalism is written by Tony Ortega, when he was in Kansas City (written from the perspective of a KC Strip Steak… it’s a Kansas City thing). Now, Tony is editor and chief of the Village Voice in NY. He Tony, how ‘bout that New York finance stuff? Subsidies for Scarsdale, while cutting Utica and Middletown, or Mt. Vernon? (even if from the perspective of a NY Strip Steak?)

There are lots of Tricks of the Trade used to reduce aid to high minority districts. A favorite choice of state legislators is to allocate aid based on average daily attendance rather than enrollment. Higher poverty, higher minority concentration districts tend to have lower attendance rates… thus reducing their aid, compared to what they would receive if the aid was allocated on the number of enrolled pupils.

There was a brief period in the late 1990s when three separate federal court challenges were filed against racially disparate state school finance systems – in Pennsylvania (Powell v. Ridge), in New York (AALDF v. State) and in Kansas (Robinson v. Kansas). These cases were cut off by a series of related decisions in the early 2000s (which basically said that an individual does not have a right to sue over racially disparate effects, because the language of “racially disparate” effects appears only in regulations and not in the Civil Rights statutes themselves).

Interestingly, around that time, the Illinois legislature countered with state legislation that prohibits policies having racially disparate effect (Illinois Civil Rights Act of 2003). And as it turns out, Illinois school districts are applying this law to challenge the Illinois school funding formula – a formula that is among the most racially disparate in the nation.

http://www.jenner.com/news/news_item.asp?id=15009924

So, what’s my point here? I’m doing a bit of rambling. Well, here’s my best shot at a synopsis.

1. Yes, it is important that the current administration explore the reasons for, and possible resolutions of racially disparate effects in such areas as discipline referrals or special education placement rates (although they appear focused on the former, not latter).

2. Yes, there exists the likelihood that local public school districts are engaged in practices that harm minority populations, ranging from the previously mentioned issues, to others such as highly tracked curricular offerings which result in significant within school and within district segregation, as well as attempts by some local boards of education to undo long running diversity plans.

3. But, I would argue, that while these issues are important, there are other at least equally important issues to be addressed – substantial racial disparities in funding and resulting programs and services – in some states far more than others. AND ILLINOIS IS ONE OF THOSE STATES!

4. And those racial disparities in funding are not entirely a result of not enough money to offset differences in local wealth, or neglect of the state aid formula (underfunding the formula) – WHICH IS BAD ENOUGH – but are largely a function of maintaining PORK in affluent communities at the expense of poor minority districts, and of Tricks of the Trade – or specific provisions in state school funding formulas that drive money to whiter districts and create or reinforce racial disparities.

READINGS

Green, P.C., Oluwole, J., Baker, B.D. (2010) Getting their hands dirty: How Alabama’s public officials may have maintained separate and unequal education. West’s Education Law Reporter 253 (2) 503‐
520

Green, P.C., Baker, B.D., Oluwole, J. (2008) Obtaining racial equal educational opportunity through school finance litigation. Stanford Journal of Civil Rights and Civil Liberties IV (2) 283‐338

Baker, B.D., Green, P.C. (2005) Tricks of the Trade: Legislative Actions in School Finance that Disadvantage Minorities in the Post‐Brown Era American Journal of Education 111 (May) 372‐413

Baker, B.D., Green, P.C. (2003) Commentary: The Application of Section 1983 to School Finance Litigation. West’s Education Law Reporter. 173 (3) 679‐696

Green, P.C., Baker, B.D. (2002) Circumventing Rodriguez: Can plaintiffs use the Equal Protection Clause to challenge school finance disparities caused by inequitable state distribution policies? Texas
Forum on Civil Liberties and Civil Rights 7 (2) 141 – 165

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