Tuesday, July 09, 2013
The Supreme Court ended its most recent term with the release of decisions on several high-profile cases. Two decisions, Fisher v. University of Texas, which concerned race-conscious affirmative action policies, and Shelby County v. Holder, which challenged parts of the Voting Rights Act, may have significant implications for racial equity in K-12 education.
The Fisher decision did not directly challenge prior precedent regarding race-conscious policies in either K-12 schools or higher education – decisions that have been elaborated on in 2011 guidance from the US Departments of Education and Justice. Because the Court remanded the case back to the lower courts to apply a stricter version of strict scrutiny to University of Texas’s admissions policy, it is not yet clear how the decision will impact existing policy. However, to the extent it continues to cast doubt on the legal viability of race-conscious policies, it may make school districts hesitant to implement policies using race, even if well within the bounds of current jurisprudence, because of the concern about legal challenges. Further, as Richard Rothstein has pointed out, the case continues the evolution of justifying race-conscious policies through the lens of diversity, ignoring the many ways in which racial segregation and inequality, including in K-12 schools, are the result of decades of governmental housing and education policies.
In the South, sections 4 & 5 of the Voting Rights Act have caused school districts to shift from at-large elections to ward-based elections to ensure the ability of minority voters to have representation. In many southern jurisdictions with a history of racial discrimination, for example, any changes in voting procedures had to be approved first by the Justice Department. The context of the Voting Rights Act suggests that this provision is not terribly onerous nor is it unpopular. The overwhelming majority of proposed changes have been approved by the Justice Department since 2000, and Congress reauthorized the Voting Rights Act in 2006 with a vote of 98-0 in the Senate (and 390-33 in the House). One of the examples cited by Justice Ginsburg in her dissent about the continued need for the parts of the Voting Rights Act in question was the Charleston County, South Carolina school district. After a majority of African-Americans won elections in 2003, they proposed switching to at-large elections. Ginsburg noted, “The proposal, made without consulting any of the African-American members of the school board, was found to be an "‘exact replica’" of an earlier voting scheme that, a federal court had determined, violated the VRA.” The Justice Department used Section 5 to prevent such a change from occurring, as has been the case in other jurisdictions – here and here, for example. In one suburban district in Texas that was required to change to ward-based elections, the district reported that they were subsequently more responsive to ensuring that all parts of the district had equitable facilities. Accordingly, they devoted money to renovating older buildings in the poorer, more diverse part of the district as well as building new facilities in developing whiter, and more affluent parts of the district. Further, in Wake County, NC, some suburban communities have suggested switching from ward-based school board elections to at-large systems as a way to try to influence the district’s diversity policy. Specifically, they sought to reduce the share of the board elected from wards including the city of Raleigh, which is where most of the minority residents live. One possible outcome of the Court’s decision—presuming that Congress does not pass legislation establishing a new coverage formula—is that there would be a move towards more at-large elections of school boards. It is likely that this would only further exacerbate the demographic gap between school boards and students, and may detract from a focus on equity for students from low income and/or minority families. For those concerned about the implications of such changes for public school governance, California’s Voting Rights Act, which has led to switching away from at-large elections, may be a useful model.
Thus, while the Court’s busy end of the Term did not include any decisions directly about public schools, it is likely that K-12 educational policy-making and governance could be indirectly influenced by the Court in ways that could further racial inequality.
Posted by T. Jameson Brewer at 11:11 AM