On November 15, 2012 the Office for Civil Rights in the U.S. Department of Education launched its investigation into the admissions test for New York City’s Specialized High Schools, in response to the complaint filed by the NAACP Legal Defense and Educational Fund in September of 2012 (read more in our R2J Post of November 28, 2012). Considering the ahistorical and decontextualized approach the Supreme Court has taken when considering school segregation under the Equal Protection Clause, I can only hope that the Office of Civil Rights is able to awaken what U.S. Assistant Attorney General for Civil Rights, Thomas Perez, has called the “sleeping giant”—Title VI of the Civil Rights Act of 1964.
The Court’s approach to racial discrimination claims brought under the Equal Protection Clause has made it increasingly difficult to succeed in such a claim. The Court has long been known for its problematic philosophy of colorblindness, which equates exclusionary and inclusionary consideration of race, such that any recognition of race is dubbed discriminatory. This type of thinking is epitomized by Chief Justice Robert’s notorious proclamation in Parents Involved, a case that struck down a school district’s voluntary adoption of a school desegregation plan, that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v Seattle School Dist. No. 1, 551 U.S. 701 (2007).
The Court has also adopted what Alan Freeman termed, ‘the perpetrator perspective’ in his article Legitimizing Racial Discrimination Through Antidiscrimination Law (Critical Race Theory, 29 Kimberlé Crenshaw, et al. eds., 1995). “The perpetrator perspective sees racial discrimination not as conditions but as actions, or series of actions, inflicted on the victim by the perpetrator. The focus is more on what particular perpetrators have done or are doing to some victims than on the overall life situation of the victim class.” This perspective cannot account for the modern reality of institutionalized racism, which reproduces racial injustice even without the consciously discriminatory actions of individuals.
This perspective is embodied in the Court’s application of an intent requirement to school desegregation cases. The Court searches for a clearly culpable phantom, rather than recognize how systems of inequality are woven into the social fabric of society over time and perpetuated without intent, if gone unchallenged. It’s a sad day in dodge when our nation’s children can’t look to the constitution’s Equal Protection Clause to redress the wrongs of public school segregation and unequal access to educational opportunity. We’ve been living in that sad day for a long time now. Fortunately there are other branches of government.
The complaint filed by LDF was brought under Title VI of the Civil Rights Act of 1964 and its implementing regulations. Because the New York City and State Departments of Education are recipients of federal funding, they fall within the statute’s purview. The use of Title VI is promising because it has yielded positive results in cases challenging racially disparate school disciplinary measures, such as Ross v. Saltmarsh, 500 F. Supp. 935 (S.D.N.Y. 1980). Title VI has also been successfully used to challenge racially disparate assignments to special education, based on non-validated I.Q. tests, in Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984). Claims under Title VI avoid many problems implicit in the perpetrator perspective because Title VI allows for actions based on disparate impact. Thus the reality of exclusion and racial isolation at New York City’s elite public high schools can be challenged without proving a discriminatory animus for adopting the challenged admissions practices.
A prima facie claim of disparate impact under Title VI is made out by showing that a recipient of federal funds uses selection criteria that has the effect of disproportionate exclusion of an identifiable racial or ethnic group. LDF’s complaint includes a slew of statistical analysis and numerical assessments which clearly establish that the singular use of the Specialized High School Admissions Test (SHSAT), as mandated by New York State Education Law, as the sole determinant of admission to the specialized high schools has an extreme disparate impact on Black and Latino students. Moreover, the general pattern reveals increasing rates of exclusion of Blacks and Latinos over time.
Once a prima facie case has been alleged, respondents can rebut the claim by demonstrating that the selection criteria are required by educational necessity. LDF’s complaint forestalls the success of such a rebuttal by showing that the singular use of the SHSAT violates best practices in education and testing, is not aligned with the public middle school curriculum, and has never been validated as an accurate predictor of academic performance. In fact, the City and State Departments of Education have never conducted any validity studies showing a correlation between test performance and future school performance. Finally, “quirks” in the scoring methodology render the annually derived cut-off distinctions arbitrary.
Even if the Departments could demonstrate educational necessity, a policy with disparate exclusionary impact may still violate Title VI where there are less-discriminatory alternatives available. LDF’s complaint elaborates four such alternatives, including two endorsed by Federal Policy Guidance issued on Title VI, and another that is an existing statutory program which the schools have abandoned, despite showings that it actually reduced racial isolation (the Discovery Program).
On November 11, 2012 the Office of Civil Rights launched its investigation into the SHSAT in response to the complaint. In the past, such investigations have yielded consent decrees and other agreements in which school districts have taken action to comply with Title VI. It is my hope that, in the face of this pervasive and growing problem, New York’s school system will enter into a meaningful agreement with the Office of Civil Rights. If not, the litigation will be brought before federal courts and may wind up before the Supreme Court. At least here the burden of that litigation will be borne by the federal government, rather than placed on the shoulders of individual high school students and their families.