Jorge attends eighth grade in the township. He secretly enjoys school and plans to be a physicist. His report card grades and NJASK scores have been consistently higher than his classmates. He just received notice that he has been admitted into the township’s gifted and talented (G&T) program for eighth grade. While this is great news, it also means that Jorge will have to change schools and will not be able to walk his younger brother home from school next year. That’s because the township does not have a G&T program at Oak Middle School, near the lake section of the township, where Jorge lives along with most other Latino and black families. If he wants to attend the G&T program, he will have to take the bus to the other side of the township. Jorge’s parents have asked why the district does not offer a G&T program at Oak school.

On Oct. 14, 2014, the Office for Civil Rights in the U.S. Department of Education (“OCR”) issued a “Dear Colleague” letter. The 37-page “letter” is far too long to fully address in this column, but offers OCR’s perspective on our nation’s current state of educational equity from an enforcement standpoint. Because OCR is tasked with enforcing Title VI of the 1964 Civil Rights Act and has processed hundreds of investigations over the years, its insight is valuable in ensuring equitable opportunities for students and for defending against allegations of inequality within our schools.

Facts First

The OCR sets the framework for the letter by pointing out a few facts that have been supported by surveys and recent research: 20 percent of black high school students in this country attend a program that does not offer advanced placement (AP) courses; a higher percentage than any other racial group. Similarly, English language learners represented 5 percent of high school students nationally, but only 2 percent of the population taking AP courses. In addition, where high schools offer a G&T program, studies show that black and Latino students are significantly underrepresented in those programs.

OCR also found that schools containing the highest percentages of black and Latino students also contained the highest percentages of new teachers. Clearly, access to highly qualified and experienced teachers and school leaders is critical to student success. Unfortunately, those teachers with the least experience or with fewer academic credentials are often funneled to the lowest-performing schools. Moreover, teachers with the highest absenteeism and lowest evaluations are assigned to these same minority students. Oftentimes, the higher-performing schools are seen as more desirable and are reserved for the more experienced staff.

OCR also noted disparities in access to adequate educational facilities, instructional materials and technology. OCR noted that even where technology was present, there was a continuing need for staff members who were adequately trained to teach students using the new technologies.

Overall, the “Dear Colleague” letter paints a picture of an educational environment which is improved over years past, but one where substantial disparity continues to exist. OCR’s goal is to both eliminate disparity that is intentional and to point out policies and practices that are facially neutral, but have a disparate racial impact on students.

As an example of how OCR’s analysis works, we can imagine Jorge’s fictional New Jersey school district where black and Latino families tend to congregate in certain neighborhoods. Because students are assigned to schools based on residency, the minority population in Jorge’s neighborhood school tends to be much higher than other schools in the district. In deference to this residential reality, the board has assigned a very capable and dynamic African-American female principal to Jorge’s neighborhood school; this principal also mentors the younger teachers. Accordingly, a number of new teachers are initially assigned to Oak during their early years in order to learn from one of the best educational leaders in the district.

Intentional Discrimination

Clearly, intentional racial discrimination has no place in our educational environment. However, on occasion, decisions are made to allocate resources in a way that appears to be racially motivated. In such cases, OCR conducts the following analysis:

  • Whether the district treated similarly-situated students differently with respect to access to educational resources based on the race or ethnicity of those students.
  • Whether the district can articulate a legitimate, nondiscriminatory, educational basis for the disparate treatment.
  • Whether the articulated reason is merely a pretext for discrimination.

In the above example, the board may have decided not to operate a G&T program at Oak Middle School because very few students qualify under the district criteria for admission to that program. Instead, students are transported to another district school that has enough qualified students to support a G&T program. Jorge’s parents, along with other minority parents from the Lake section, dissatisfied with what they see as “forced bussing,” claim that the decision to omit a G&T program at Oak amounts to intentional discrimination. In response, the board will likely rely on a history of student assessments to justify the lack of a G&T program at Oak school.

In this fictional example, OCR would examine extrinsic evidence supporting the decision not to place a G&T program at Oak Middle School. If the examination demonstrates that very few Oak students qualified for the G&T program, the board would have successfully rejected the allegation of intentional discrimination. Jorge’s parents would then have the opportunity to prove that the lack of qualified students is merely a pretext and that the real reason underlying the decision is based on race.

Disparate Impact

However, OCR would next determine whether board policies or practices negatively affected the ability of Oak students to meet the qualifying standards for the G&T program. OCR would determine:

  • Whether a policy that appears to be neutral had an adverse discriminatory impact on students;
  • Whether the policy was necessary to meet an important educational goal; and
  • Whether there are other practices that could meet the educational goal without discrimination.

In the above example, OCR would determine whether the district’s teacher assignment practice negatively impacted minority acceptance rates into the G&T program. Here it is easy to argue that the facially neutral policy of assigning newer teachers to Oak Middle School has had an adverse educational impact on the school’s student population. Because it is generally recognized that newer teachers, regardless of how well-intentioned or well-trained, are less effective than more experienced teachers, teacher experience could account for the lower qualifying rate. Because the board exercises discretion in assigning teachers to the schools within the district, the board has an obligation to ensure that each school is comparably staffed.

The focus of the inquiry then turns to the educational goal underlying the teacher assignment policy. If the answer lies in the fact that all new teachers start at Oak because the principal is a fantastic leader who has a proven track record of success with new teachers, the board will have satisfied the second prong of the inquiry.

OCR will then examine whether new teachers can receive the same quality mentoring in a way that does not adversely affect students’ access to the G&T program. OCR may direct the board to restructure the mentoring program so that new teachers are spread more equitably across the district.

OCR Investigations

In an investigation OCR is aware that racial disparities may exist for reasons that are completely unrelated to discrimination. Accordingly, OCR’s investigations tend to focus on the scope and severity of disparities in resource allocation, and on the district’s efforts and processes for eliminating any disparities that are identified. OCR may compare a school’s resources against district averages and against those district schools serving the most and the fewest students of a particular race to assess whether alleged resource disparities are, in fact, racially connected. Investigations are more likely to find school districts in violation of Title VI when OCR uncovers significant racial disparities in access to a particular education resource or patterns of racial inequality across a range of different types of resources.

When examining the equitable allocation of funding, OCR considers several programmatic elements, including:

  • Courses, academic programs and extracurricular activities;
  • Strong teaching, leadership and support;
  • teacher effectiveness data;
  • stability of teacher workforce;
  • teacher qualifications and experience;
  • school leadership;
  • support staff;
  • School facilities;
  • physical environment;
  • types and design of facilities;
  • Technology and instructional materials.

OCR also encourages districts to engage in self-evaluations in order to promote equity and to avoid any delays in providing resources equitably. OCR suggests that OCR’s Civil Rights Data Collection can assist districts in their statutory obligations. Districts that conduct a self-assessment should use the methods and tools recommended by OCR, since OCR may ultimately assess the districts efforts;

Finally, school districts that take proactive, concrete, and effective steps to address the root causes of self-identified disparities will be viewed favorably by OCR. Processes designed to address those disparities will assist in OCR’s overall assessment of the district.