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"A Title VI Diversity Assessment at the Department of Education?,"

by Philip Tegeler July/August 2014 issue of Poverty & Race

Philip Tegeler (ptegeler@prrac.org) is PRRAC’s Executive Director. This essay is taken from a longer discussion in his forthcoming law review article, “The ‘Compelling Government Interest’ in School Diversity: Rebuilding the Case for an Affirmative Government Role,” 47 University of Michigan Journal of Law Reform (2014).

Title VI of the Civil Rights Act of 1964 was designed to end discrimination and segregation in federally-funded programs and facilities—with a special focus on segregated schools and hospitals. But the framers of Title VI did not limit their vision to intentional or de jure segregation. For example, in his speech introducing the Civil Rights Act in 1963, President Kennedy noted that “difficulties over segregation and discrimination exist in every city, in every State of the Union, producing in many cities a rising tide of discontent that threatens the public safety,” and six years later, Congress declared that the provisions in Title VI and the Elementary and Secondary Education Act “dealing with conditions of segregation…whether de jure or de facto, in the schools of the local educational agencies of any State shall be applied uniformly in all regions of the United States whatever the origin or cause of such segregation.”

When Title VI was initially implemented, its regulations established a basic administrative complaint process within each federal agency. This model was usually passive, with the filing of an administrative complaint leading to an investigation, conciliation and eventual adjudication. Until recently, this complaint-driven approach to Title VI was the norm at most federal agencies, including the Department of Education. But in the last decade, several federal agencies have taken a more proactive approach and have required state and local governments to assess the racial impacts of their policies in advance, and evaluate less discriminatory alternatives. Title VI regulations and guidance at the Federal Transit Administration, the Environmental Protection Agency and the Department of Agriculture exemplify this new approach. PRRAC Board member Olati Johnson has termed these new, affirmative regulations “equality directives,” opening up a new, non-traditional advocacy front in civil rights enforcement.

One of the best known of these proactive rules is the Federal Transit Administration’s 2012 Title VI Guidance. The FTA Guidance requires a Title VI “equity analysis” for the siting of new transit facilities, proposed fare changes and some other actions by larger transit systems, requiring detailed assessments of racial impacts. If the transit provider forecasts a potential disparate impact associated with a proposed action, it must “determine whether alternatives exist that would serve the same legitimate objectives but with less of a disparate effect on the basis of race, color or national origin.” If alternatives exist, “the transit provider must revisit the service changes and make adjustments that will eliminate unnecessary disparate effects. ...”

What would a similar Department of Education Title VI assessment look like as applied to conditions of racial isolation and poverty concentration in public schools? With consistent national research linking attendance in racially isolated schools to a wide range of negative educational outcomes (including lower student achievement results, higher dropout rates, lower college completion rates, less qualified teachers, high rates of teacher turnover, less challenging curriculum, and higher rates of student discipline), the Department would certainly be justified in demanding that its grantees account for the predictable impacts their policies and planning decisions have on school segregation patterns.

A Title VI “school diversity assessment” analogous to the FTA Guidance could require prospective assessments by states and local school districts of school construction spending decisions, school siting plans, and school districting and boundary proposals— all of which can have significant impacts on patterns of racial and economic school segregation.

The Department of Education has already taken some steps toward prospective racial impact assessment in its recent guidance on school discipline. Extending the “equity assessment” principle to state and local actions significantly affecting school segregation would be a welcome next step

Philip Tegeler is Executive Director of PRRAC. ptegeler@prrac.org
 
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