No Caste Here? Toward a Structural Critique of American Education

In his famous dissent in Plessy v. Ferguson, Justice John Marshall Harlan argued that in the United States, there was “no caste here.” Justice Harlan was rejecting the idea that American society operated to assign preordained outcomes to individuals based upon classifications, including racial classifications. This Article questions whether Justice Harlan’s aspirational assertion accurately reflects contemporary American education. Identifying: (1) multiple classification mechanisms, all of which have disproportionate racial effects, and (2) structural legal, political, and practical impediments to reform, the Article argues that the American education system does more to maintain the nation’s historical racial hierarchy than to disrupt it. This is so, the Article suggests, despite popular agreement with the casteless ideal and popular belief that education can provide the opportunity to transcend social class. By building the framework for a broad structural critique, the Article suggests that a failure to acknowledge and address structural flaws will preclude successful comprehensive reform with more equitable outcomes.

This article appeared in the Penn State Law Review.  The full article is available here.

Lessons from the Memphis 13

Lessons from the Memphis 13: What 13 First Graders Have to Teach About Law, Life, and the Legacy of Brown

Abstract: Fifty years after desegregating schools in Memphis as first graders, the pioneering students shared their stories for the first time. The resulting film, The Memphis 13 (2011), brought a largely overlooked episode in the civil rights movement into the broader movement narrative. In this essay, the film’s director – who also happens to be a law professor – combines a first-person account of the intellectual journey involved in meeting the pioneering students and their families with a scholarly analysis of the implications of the students’ stories. Specifically, the essay describes the intense isolation the students experienced both during their experience desegregating schools and in the decades that followed and questions the responsibility that lawyers and movement leaders have to foot soldiers who are participating in a social movement through no choice of their own. Looking back, the students took widely divergent lessons from their experience, demonstrating the complexity of crafting a meaningful remedy even for individuals in the post-Brown era. The essay thus utilizes these personal narratives to critique the choices made during the desegregation effort. This real world testimony provides a fresh perspective on longstanding debates that too often discount the experiences of those most directly affected.

This article appeared in the Thurgood Marshall Law Review of Texas Southern University Thurgood Marshall School of Law.  The full article is available here.

The Enduring Power of Milliken's Fences

Abstract: Using the experience of one community that has undergone a district line altering transformation as a case study, this article argues that endorsement from the state is an essential element for success in efforts to mitigate the educational inequities caused by district boundaries and then offers specific steps states can take to support such changes even without altering district boundaries. Part I will introduce the ways in which school district lines can serve as barriers to educational opportunities, and Part II will summarize several current educational reform proposals and trends that either have the intent or effect of weakening the power of district lines. Part III examines the rationale for the largely successful suburban resistance to district-weakening proposals, filling out the context in which conversations on these topics take place. The case study of the merger of urban and suburban school districts in Memphis and Shelby County, Tennessee will be introduced in Part IV. Utilizing the experience in Memphis and Shelby County, Part V will identify lessons learned from Memphis, focusing on the role of the state in assisting or obstructing elimination of interdistrict disparities, and Part VI will offer practical and politically viable suggestions that states can take to address these issues. Although the legal context was quite different, the practical landscape facing the merger process in Memphis was not unlike what Judge Roth found in Detroit four decades earlier. At issue remained questions about whether education should be considered a common undertaking for the entire metropolitan area it affects, or whether local control should be limited conceptually by existing district lines. If anything, the fences between urban and suburban districts have grown even stronger since the Supreme Court embraced them in Milliken. The lessons from this contemporary attempt to break down school district boundaries demonstrate just how strong those fences have become.

This article appeared in The Urban Lawyer.  The full article is available here.

The Endangered School District

The Endangered School District: The Promise and Challenge of Redistributing Control of Public Education

Abstract: One constant in American public education reform has been the existence of a single local entity – the school district – with operational responsibility. In some places, that is changing. Fueled by undercurrents in education reform such as the embrace of broader school choice and an increase in state involvement in local education, as well as federal political alignment supporting these undercurrents, some communities are embracing a radical structural reform that redistributes operational control across a series – or portfolio – of autonomous entities.

In such communities – typically large, urban school systems serving a student population that is largely poor and made up of minority students – the term “district” no longer applies. The broad, district-wide authority of a school board and superintendent is being dispersed to a variety of operators, including state education departments, private (i.e., charter school) operators, and the preexisting district itself. Each operator enjoys substantial or even total independence from other operators, generating an autonomy that has not existed within the traditional district structure.

The Endangered School District describes the causes and ramifications of such a substantial departure from the traditional district model and offers case studies from two communities – New Orleans, LA, and Memphis/Shelby County, TN – at the epicenter of urban education reform. Building on scholarship evaluating the theory of expanded school choice and operational autonomy, these case studies help demonstrate the practical challenges of applying these theories beyond isolated schools to entire educational communities.

There is great disagreement about the wisdom of transitioning toward a portfolio model for public education. The Endangered School District simply accepts the development as the emerging trend that it is and offers insight from two communities for making the most of such a radical structural change.

First, the article describes the undercurrents that are enabling the portfolio strategy and the ramifications – administrative, legal and philosophical – of moving away from the traditional district model. After introducing the case studies, the article next examines the respective new models in depth in order to evaluate whether either can deliver as a strategy to increase educational opportunities for students. Specifically, the article identifies the dangers that these structural reforms may simply reorganize the stratified educational systems they seek to eliminate or that they may not be financially, legally, or politically sustainable over time and on such a large scale. Rather than merely identifying these challenges, the article then goes on to identify legal structures – such as state laws or bilateral agreements between public school authorizers and public school operators or even among operators themselves – that can help minimize these risks.

This article appeared in the Boston University Public Interest Law Journal.  The full article is available here.

A Memphis Dilemma

A Memphis Dilemma: A Half-Century of Education in Memphis and Shelby County from Desegregation to Consolidation

Abstract: On May 17, 1954, the day that the Supreme Court handed down Brown v. Board of Education, essentially four separate school systems existed within the borders of Shelby County, Tennessee. Memphis City Schools (MCS) served students within the city limits, and Shelby County Schools (SCS) served the balance of students in the county; within each system were white schools and black schools. The next several decades saw the two districts grapple with implementation of the Supreme Court mandate to remove the vestiges of segregation from public education.

By 2010, both districts had achieved unitary status, freeing them from court supervision and adherence to judicially approved desegregation plans. However, there remained a sense in the community that public education remained very much separate - and that there was a continued racial component to that separation. Indeed, the demographics of the two districts supported this perception. Of the 100,000 students in MCS, nearly 90% were African American. Meanwhile, the majority of the county’s white students were learning in SCS. Coupling these demographic differences with the fact that the county schools performed better educationally, on average, by state accountability standards and the claims of separate, unequal schooling no different than what was confronted in Brown seemed even more legitimate.

This article appeared in the University of Memphis Law Review.  The full article is available here.

An Ounce of Prevention is Worth a Pound of Cure

An Ounce of Prevention is Worth a Pound of Cure:

Abstract: Written as an invited response to Prof. Richard Sander’s “Class in American Legal Education,” this piece argues that the debate about affirmative action in higher education has overemphasized the admissions process without focusing a sufficient amount of energy on addressing longer-term strategies that would make controversial admissions interventions unnecessary.

This essay appeared in the Denver Law Review.  The full article is available here.  Links to the other articles in the volume are available here.

It Takes a Hurricane

It Takes a Hurricane: Might Hurricane Katrina Provide for New Orleans Students What Brown Once Promised?

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.

This article appeared in the Journal of Law and Education.  The full article is available here.

Accepting Justice Kennedy's Dare

Accepting Justice Kennedy's Dare: The Future of Integration in a Post-PICS World

Abstract: In the wake of the most important public schools case in decades, Parents Involved in Community Schools (PICS), the future of diversity in public schools is in doubt. This period of uncertainty comes at a moment when parents, educators, and employers are demanding high quality schools that prepare students for an increasingly globalized world. Justice Anthony Kennedy, in his PICS concurrence, recognized this and challenged districts to continue the important work of bringing different students together without resorting to unconstitutional means. Filling the void between what is essential to public education and what is constitutionally permissible after PICS, the public schools of Jefferson County (Louisville), Kentucky, one of the districts rebuked in PICS, have accepted Justice Kennedy’s dare by crafting a nuanced and race-conscious student assignment plan aimed at promoting broadly-defined diversity and increasing the quality of education across the district.

The article argues two distinct points. First, it argues that the new plan is a constitutionally permissible response to PICS. Second, it argues that the new plan’s broadening of both the definition of diversity and the mission of a school district represents the beginning of a new post-Brown era that is responsive to the realities of public education in the 21st century. By tethering its analysis of PICS - and specifically of Justice Kennedy’s concurrence - to a specific response to that decision, the article provides a detailed analysis of the new constitutional framework in this area. Ultimately, the article argues that because it is both constitutional and educationally-relevant, the new plan represents the future of integration for any district willing to make the commitment to providing the educational benefits of diverse public schools to its students.

This article appeared in the Fordham Law Review.  The full article is available here.

Exploded Dream: Desegregation in the Memphis City Schools

Abstract: This article is a comprehensive look at the story of school desegregation in the Memphis City Schools. Beginning with the Brown v. Board of Education decision that ended segregation in schooling, the article traces the steps taken in Memphis to put the Brown decision into practice. Following a period of inaction and delay, the Memphis City Schools experienced a relatively peaceful transition as token desegregation took place in the early part of the 1960s. However, after the assassination of Dr. Martin Luther King, Jr., in Memphis in 1968, the community's polarization was globally exposed and further progress on school desegregation was limited. After federal courts ordered busing to implement the Brown mandate, a quarter of the district's white students departed for the nearby Shelby County Schools or for a growing, and uniquely successful, system of private schools. Since the busing order, the white population in the Memphis City Schools has steadily declined so that by the 50th anniversary of the Brown decision, a district that had been 58% white and 42% black in 1954 was 86% black and 9% white in 2004. Using the Northcross v. Board of Education of the Memphis City Schools litigation as a guide, this article traces that history, putting Memphis in the context of the larger desegregation story.

This article appears in the journal Law and Inequality: A Journal of Theory and Practice, published at the University of Minnesota School of Law.  

The full article is available here.