"Board Member Report,"by William L. Taylor November/December 2000 issue of Poverty & Race
Working as a civil rights advocate means that when you wake up on most days you have a good fight to go to. Here are a couple that are currently occupying my time and adrenaline:
As Jack Boger reported in the September/October issue of Poverty and Race, several recent court decisions, particularly in the Fourth Circuit, prohibited local school boards from pursuing policies that use race in an effort to promote diversity in their schools and classrooms. One such decision by a panel of the Fourth Circuit barred the Montgomery County, Maryland school system from denying transfers in circumstances where granting the application would upset the racial stability of the sending or receiving school. See Eisenberg v. Montgomery County Public Schools,197 F. 3d 123 (1999). After the Supreme Court refused discretionary review of the decision this year, the Montgomery County Superintendent of Schools asked me for advice on how to maintain a policy favoring diversity without incurring a strong risk of another adverse legal decision.
Along with colleagues at my law firm, I spent a good part of the late spring and summer studying the question and recently submitted a report to the Superintendent. While the report is not public, there are a few observations I can make about our research. The two largest U.S. studies of student achievement ever undertaken were the Coleman Report in 1966 and the Prospects Report in 1994. Those reports concluded that the socioeconomic composition of the classroom influenced student outcomes and that economically disadvantaged students attending schools with high concentrations of poverty did far worse than similar students attending middle-class schools. Since only two groups — African Americans and Hispanic Americans — live and attend schools in concentrated poverty, the two reports may provide at least part of the explanation for the racial achievement gap. In addition, the two reports provide strong reinforcement for studies that show educational benefits flowing from desegregation.
All of this suggests that policies to promote diversity by assigning students in ways that avoid concentrated poverty would have a strong educational rationale and would also accomplish a measure of racial and ethnic desegregation as well. Wake County, North Carolina and Omaha, Nebraska are two school districts that have recently undertaken policies of the kind I have described, and both are hopeful about the results.
There is of course more than a little irony in the course that some courts have taken. In the 1954 Brown decision and for many years thereafter, the federal courts told local school boards that they must desegregate their school no matter how unpopular such a step would be. In the 70s, as the Supreme Court began to close the door on remedies for minorities and the poor, the majority justices invoked “local control” as a mantra that overrode any other consideration. Now, as many local educators have come to understand the educational and societal value of desegregation, the Fourth Circuit and some other courts are saying that local control counts for nothing and can be overridden by the courts at will. In effect, these courts are saying that what they once told local educators they must do is now something they are forbidden to do.
While the negative trends in the courts are discouraging, the evolution in the views of local educators is heartening. Many have known for years that racially and socioeconomically isolated schools made for poor education, but it only recently that they have had the courage and political will to act on this knowledge. The anti-diversity decisions of some courts also run counter to the emerging understanding of opinion leaders at all levels that in a growingly diverse society, policies that foster isolation are harmful to the social fabric of the nation.
I am also engaged in another endeavor to restore rights that have been stripped away by an unfathomable 5-4 decision of the Supreme Court. Earlier this year the Court ruled in Kimel v. Florida Board of Regents, 120 S.Ct. 631, that the Eleventh Amendment, which deals with the sovereign immunity of states, prohibits state employees who have suffered discrimination because of age from seeking a damage remedy against their employers. The text of the Eleventh Amendment says that the judicial power of the United States does not extend to suits commenced against one of the states “by citizens of another state.” So one might think that a strict constructionist would not apply the Amendment to a suit by a citizen of Florida against the State of Florida. Beyond this picky point, it had been widely assumed that as to discrimination suits against a state, the Fourteenth Amendment, having been enacted later to prohibit discriminatory state practices, superseded the sovereign immunity provisions of the Eleventh Amendment. Five members of the Court thought otherwise, inventing a new doctrine that said that for the Eleventh Amendment not to apply, a federal statute enacted under the Fourteenth Amendment must provide remedies that are “congruent and proportional” to the discrimination sought to be prohibited In their view, the Age Discrimination in Employment Act did not meet that test.
I have been working with a group of lawyers affiliated with the Leadership Conference on Civil Rights to find an appropriate avenue to restore the relief that the 5-4 majority struck down in Kimel. Since the federal government has long been held by the courts to have authority under the Spending Clause to attach reasonable conditions to government grants, that is the approach we have taken. In early September, Senators Jeffords, Kennedy and Feingold introduced the Older Workers Restoration Act (S 3008) to reinstate a damages remedy against state departments and agencies that receive federal funds when they engage in age discrimination. This legislation will be reintroduced in the next Congress, and the stakes may be raised if the Supreme Court reaches a Kimel result in a case involving discrimination by states on the basis of disability that was argued in October.
The Court these days is very reminiscent of the Court of the late 1920s and early 30s in which five justices struck down state and New Deal social welfare laws that did not conform to the views of the prevailing justices about the limits of federal power. In their zeal to impose their own views, they do not hesitate to override states, the Congress and the Executive branch, and in their activism they would hardly meet a definition of strict constructionist. The old Court eventually bowed to the needs of a changing Nation. I believe that ultimately the same fate awaits the current conservative majority.
William L. Taylor a PRRAC Board member, is a Washington, DC lawyer who advocates for poor and minority children. He teaches education law at Georgetown Law School. email@example.com
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