HEADLINE: Black America and school choice: Charting a new course
BYLINE: Barnes, Robin D
BODY:
Robin D. Barnes*
I. INTRODUCTION: THE ROLE OF AUTONOMY IN ACCESSING QUALITY EDUCATION
As scholars debate the purpose of public education and the value of school
choice,1 Americans are demanding more and better educational choices for their
children.2 Many school reform advocates are troubled by racially disparate
educational outcomes,3 while others are absorbed with improving quality and
raising education standards overall.4 Conditions of extreme racial inequity in
public schools were documented in a study of Negro education as early as 1916.5
Separate and horridly unequal conditions characterized public education earlier
this century, when black children were taught in one room shacks in conditions
that were "'miserable beyond all description.'"6 Despite the work of civil
rights lawyers,7 the quality of educational opportunities for black students
relative to whites has improved only moderately. Black children have less access
than white students to the limited number of quality public education programs,8
and they are significantly overrepresented in the worst.9
Urban schools generally face incredible, if not intractable, problems, as
"dropout rates hover well above 50 percent, truancy is the norm rather than the
exception, violence is common, students struggle for basic literacy . . . and
the physical condition of the schools is a disgrace."10 Black males appear to be
faring most poorly under current conditions.11
To address this problem, several states have introduced schools specifically
for black males.12 One such program in Michigan was immediately challenged as
unconstitutional in a lawsuit sponsored by the American Civil Liberties Union
(ACLU) and the National Organization for Women (NOW).13 In Detroit, a proposal
to convert three elementary schools into all-black male academies received
widespread parental support to wage a "'united front against a problem that many
believe threatens the black family, black culture and black male-female
relationships.'"14 The schools were to focus exclusively on black males at risk
to help address complex inner-city problems.15 One writer discussed the crisis
in Detroit as follows:
In one particular elementary school located in Detroit's inner-city, a
majority of the students are born to unwed mothers, walk by crack houses on
their way to school, and are habitually recruited by neighborhood gangs. The
school's janitor was killed in a "drive-by" shooting, a preschool child was shot
in the head, and a third grade boy had his mother pull him out of
school because he owed a drug dealer $ 300 and he felt that he
needed the "cover." To
say that this environment has created unique and vexing problems for the Detroit
Board of Education would be a gross understatement.16
After examining the crisis situation facing urban males in Detroit,17 a task
force proposed the creation of a school to serve up to 250 boys.18 The academic
program included a curriculum "superior to those in the coeducational public
schools 'in areas such as linguistics, social sciences, math and technology.
Other planned programs would focus on career development, test-taking skills,
and social responsibility.'"19 The school's ultimate purpose was called into
question when opponents pointed out that some of the males admitted were not "at
risk" as defined in the mission statement.20 Another legitimate objection
centered on the fact that there were no programs to address the fate of girls
who were at risk in the Detroit school system.21 Ultimately, the school board's
plan was struck down because of its gender exclusivity.22 A settlement
eventually allowed the schools to open on a coeducational basis.23 However, as
one mother of three boys argued, "'(W)e have zillions of schools that are mixed,
so what's wrong with one that is not?'"24 Perhaps a more effective response to
the claim that at-risk females were entitled to comparable services would have
been to reorganize the plan to allow simultaneous operation of all-female
academies.25 Because no student would have been involuntarily placed in the
schools, for which "applications overwhelmingly outpaced available admission
slots,"26 the final result deprived the public schools of the opportunity to
operate in the tradition of some of America's most highly regarded private
schools.27
One writer suggests that the legal standard applied to all-female schools
demonstrates that sex-based regulations might withstand heightened scrutiny when
"there exists a strong correlation to remedial aspects of past discrimination
and if the effect of the classification would not be likely to further outdated
stereotypes and generalizations regarding women and men."28 However, even though
U.S. District Court Judge George Woods acknowledged the "status of urban (black)
males as an 'endangered species,'" he found it insufficient to justify a
gender-based school.29 The ultimate effect of the equal protection challenge was
to force at-risk black males and their educators to reconcile themselves to an
attenuated version of the original plan. This case forcefully presents the issue
that lies at the heart of the school choice movement:
"Who shall be empowered to make decisions affecting the education of
Detroit's children? Will it be the leadership of the ACLU and NOW, most of whom
reside outside the city of Detroit? Or will Detroit's parents and voters retain
the right to expend their tax money as they see fit on behalf of their
children's education?"30
Hence the role of constitutional adjudication will continue to be of
particular interest to those who seek to improve the quality of educational
opportunities for African-American children.31
Black Americans acknowledge that court-ordered integration and other
desegregation policies have failed to integrate most urban schools32 or
significantly increase access to quality educational programs.33 The public
school integration that was the promise of Brown v. Board of Education34 has
been, in other words, "sparingly delivered."35 Where integration has occurred,
it has often resulted in heightened racial tension.36 The cogent lesson of the
failed effort to integrate the nation's schools is that racial
desegregation must be completely voluntary in order to realize
long-term success.37 This
lesson may explain why school choice advocates have not identified racial
integration as a primary objective of their initiatives. One writer notes that
"America's long and divisive experiment with school integration may be quietly
coming to an end."38 Instead, advocates of choice favor race-neutral policies
that focus on the quality of education; choice and quality are thought to be
linked.39
Efforts to create and sustain high levels of academic achievement by
African-American children require new strategies. Educational alternatives that
foster advanced social development, academic excellence, and collaborative
governance that is free of bias and racially disparate outcomes are arguably the
key to effective education for black America's children. Policymakers
historically have been unwilling or unable to establish programs that
effectively lead to racial integration and educational equality.40 The school
choice movement is a response to this problem. It is aimed at offering parents
the widest range of educational choices and lessens the mounting frustration of
legislators who must answer to diverse constituencies.41 Advocates embrace
school choice as a means of increasing competition among schools and providing
needed alternatives to deteriorating, badly managed, and obsolete educational
programs.42
Among the newer school choice initiatives, charter schools represent a unique
opportunity for reforming public education. Charter schools are publicly funded,
secular institutions that operate under a license granted to applicants who
present a proposal that becomes the basis for the contract with state
authorities. They operate outside the local school board, free from many of the
policies and regulations that govern other public schools. The higher degree of
autonomy in running the school is given in exchange for a greater degree of
accountability.43
Part II of this Essay summarizes the general failure of public school
desegregation efforts, noting the high price of desegregation for black America.
It also chronicles several disappointing and painful examples of the nature and
source of mounting racial tensions that often accompany what otherwise appear to
be successfully integrated schools. Part II concludes by highlighting the
dilemma for middle-class blacks by relating the experience of another group of
parents, far removed from the crisis in Detroit's inner city. These parents
sought both quality and integration under what many presumed to be ideal
circumstances. The four leaders of the parent group were all educators who
fought to have The Adventures of Huckleberry Finn removed from the eighth grade
curriculum of a New Haven Public School. As a principal organizer of this parent
group, I witnessed first-hand the shocking rudeness that these parents
encountered, which forced them to assess realistically what black children
actually experience in what are perceived to be high quality educational
programs.
Part III summarizes the role of school choice in the education debate and
focuses upon the options presented by public, as opposed to private, school
choice plans. In Part III, I distinguish charter schools from other choice plans
by highlighting their various approaches to policymaking. I explain how charter
schools provide autonomy in the selection of means to achieve desired
educational ends. Their focus upon independent, collective management provides a
mechanism through which black America can receive greater benefits from school
choice. Even though the Charter Movement is still in its infancy,
the innovative teaching and learning models developed in charter
schools are
expected, over the long run, to translate into benefits for children
district-wide. While charters are believed to have independent value apart from
academic outcomes, they warrant support for their potential to improve
measurably the quality of public education overall. In Part IV, I conclude that
charter schools-which involve parents in the education of their children-offer a
viable option for the effective education of black children in the years to
come.
II. THE FAILURE OF SCHOOL DESEGREGATION
That the quality of public education is separate and unequal along racial
lines is, for some, a historically significant, continuing reality that demands
nothing less than constitutional adjudication.44 The quest for equal educational
opportunities has led to constitutional challenges involving almost every major
metropolitan school district.45 These cases, which began with Brown in 1954 and
continue to this day, have resulted in few educational improvements.46 In 1984,
for instance, the plaintiff in Jenkins v. Missouri47 alleged that the state not
only created, then failed to dismantle, its dual educational system after Brown,
but also perpetuated the system of segregation through unfair housing practices,
discriminatory relocation of blacks displaced by highway construction projects
and urban development, and support of racially identifiable interdistrict
vocational and special education programs.48
Shortly after Brown, various states began resisting court-ordered
desegregation.49 Federal troops were on standby to deal with growing threats of
violence and intimidation by state officials.50 Arkansas amended its
constitution, declaring Brown to be unconstitutional, and passed legislation
relieving white school children from compulsory school attendance laws if they
were enrolled in racially mixed schools.51 Ten years after Brown, 97.8% of black
pupils in eleven southern states still attended segregated schools.52 From
1964-69, the Court imposed a new timetable declaring the initial "all deliberate
speed" formula constitutionally impermissible.53 Widespread plans to utilize
busing as a means of integrating public schools were met with measured
resistance and violence.54 Hostility in jurisdictions such as North Carolina led
to a ban on involuntary busing and, most infamously, in liberal enclaves such as
Boston, busing orders "provoked widespread violence and deep bitterness among
whites."55 When former President Gerald Ford sought to intervene, advocating the
restriction of federal court authority to utilize busing as a remedy of last
resort, NAACP officials argued that his action would be "viewed by white
militants as a reward for violence."56 To the extent that a sufficient
constitutional challenge to segregated schools required malicious intent or de
jure segregation, the South supplied ample record of the intent of its
policymakers, with bold pronouncements coming from politicians like Mississippi
Governor Ross Barnett, who declared that he would rot in jail before he let
"'one nigra cross the sacred threshold of our white schools.'"57 In the North
and West, establishing intent to maintain segregation was more difficult. By
1970, 39.4% of southern black children were enrolled in predominantly black
schools, while 57.6% were racially isolated in the North.58
Court orders to desegregate city schools led most notably to white flight.59
With decreasing numbers of white children in urban school districts, racial
isolation actually increased. Suburban school districts were nearly 100% white
and exempt from desegregation orders.60 School systems that had not required
segregation by law were not required to integrate their schools
and could not be compelled to participate or help remedy the
racial segregation in those
districts that had engaged in illegal segregation.61 Recent cases continue to
restrict the remedial powers of federal courts attempting to eliminate
segregation in public education.62 Thus, millions of dollars and hundreds of
cases later, the majority of public schools are still not integrated to any
significant degree. Nationwide, one-third of minority children are racially
isolated in public schools; in the Northeast, the ratio jumps to one-half.63 The
lack of sufficient funding, deteriorating infrastructure, and inadequate public
support for public schools has had predictable consequences for black children64
and has required increased litigation aimed at remedying large funding
disparities. Although the Constitution theoretically prohibits school districts
from purposefully maintaining predominantly black schools with inferior
teachers, buildings, textbooks, and facilities, equal funding is as elusive as
ever.65
Inequality in funding was an important consideration for black leaders
supporting the litigation in Brown and its progeny, but dispelling the myth of
racial inferiority was deemed more critical.66 Nonetheless, black leaders must
be held accountable for their uncritical acceptance of judicial pronouncements
directed at the "hearts and minds" of black children.67 Supreme Court Justice
Clarence Thomas, while chairman of the Equal Employment Opportunities
Commission, described the major flaw of Brown as its failure to rely upon the
dissent in Plessy.68 Justice Thomas argued that Brown's focus on psychological
environment overlooks the real problem with segregation-its origins in
slavery.69 Justice Thomas recently renewed his objection in his concurring
opinion in Missouri v. Jenkins,70 where he criticized the majority for relying
upon questionable social science research and resting upon assumptions of black
inferiority:71
Given that desegregation has not produced the predicted leaps forward in
black educational achievement, there is no reason to think that black students
cannot learn as well when surrounded by members of their own race as when they
are in an integrated environment. Indeed, it may very well be that what has been
true for historically black colleges is true for black middle and high
schools. Despite their origins in "the shameful history of state-enforced
segregation," these institutions can be "'both a source of pride to blacks who
have attended them and a source of hope to black families who want the benefits
of . . learning for their children.'"72
A recent Connecticut case manifests the same flaw. The state's highest court
ruled in Sheff v. O'Neill73 that racial isolation was harmful to the large
number of minority children consigned to Hartford's substandard school system.74
The Connecticut Supreme Court followed the lead of the Supreme Court of the
United States in Brown by taking judicial notice of intangible elements of
psychological harm.75 Arguably the court could have found that racial isolation
was harmful to all of Connecticut's children and issued mandates to desegregate
all Connecticut schools.76 Instead, the court declared that under the state's
constitution, only plaintiffs in the urban schools had been denied equal
educational opportunity because of isolation and remanded the issue to the
legislature for redress.77 There is doubt as to whether the same legislature,
which has at least tacitly endorsed the current organization of school systems
across the state, can now produce an adequate remedy. The Governor and
Connecticut parents have rejected pupil reassignment and forced busing as a
remedy.78 Many whites oppose sending their children into the city, just as many
blacks see the potential (even probable) harm of sending their
children to the suburbs. In particular, most blacks doubt that
their children's needs will be
met in suburban schools.79
Professor Drew Days has noted that black America has paid, in some instances,
a high price for desegregation.80 This view is the dominant perspective among
those who have examined the behavioral, academic, psychological, and cultural
consequences of Brown and its progeny.81 Brown reinforced centralization of the
education establishment and resulted in the forced integration of certain
schools and districts. Dr. Doris Wilkinson, Professor of Sociology at the
University of Kentucky, has compared the education of black America during the
era of Jim Crow with the post-Brown developments described above.82 She
concludes:
(P)ublic school integration and the associated demolition of the black
school has had a devastating impact on African American children-their
self-esteem, motivation to succeed, conceptions of heroes or role models,
respect for adults, and academic performance. Racial animosities have also
intensified. Unless rational alternatives are devised that take into account the
uniqueness of the African American heritage, busing and compulsory school
integration will become even more destructive to their health and ultimately to
the nation as a whole.83
The teachers, administrators, and school boards of both urban and suburban
school districts are overwhelmingly white, and relatively few black children
attend suburban schools, representing most of the "integration" that exists in
public schools.84 Minority children ride the bus to attend schools with
strangers-children belonging to another neighborhood, racial group, and social
class. With only a handful of black students in each classroom, they experience
prolonged isolation in predominantly white settings, where they are often
"exposed to denigrating racial imagery from the teachers, tracking, low
expectations, or race hatred."85
According to one writer, "(t)he basic assumption of those endorsing the
theory that a school district has overcome its history of racial discrimination
is that a school district can be expected to treat minority students fairly
without court supervision because there are no longer racial barriers."86
However, this illogical approach to equal educational opportunities has
negatively impacted black students from both middle- and low-income families,
the former often as much as the latter.87 Black America has devoted its energy
and resources to fighting a losing battle.
The Court's rejection of the most viable school desegregation plans,88
coupled with the reality that integration policies have "not produced the
hopedfor improvement of the quality of educational opportunities for African
Americans"89 requires a reformulation of the meaning of Brown rather than more
fruitless school desegregation litigation. Accordingly, I would reinterpret the
constitutional imperative of Brown as requiring equal access to quality
educational programs.90 Thus, a school district that did not purposefully assign
students based on their race would fall within the zone of defensibility, if not
actual compliance, with the mandate of Brown if it made concerted efforts to
raise substantially the quality of educational opportunities afforded to black
children in their own neighborhoods. At the very least, good faith efforts to
convert litigation resources into education resources for those with the most
pressing needs would help to promote equal protection. The Detroit School
Board's efforts to establish all-male academies were persuasive
because officials assumed an affirmative obligation to work with
parents and to involve
the community in bringing about the desired changes to the troubled system.91
Much of the education literature supports Helaine Greenfeld's theory that what
equal protection may require, in this situation, is "providing African-American
and white students with what they both need, respectively, to derive an equal
benefit from their schooling."92
The question of how best to insure equal benefits from schooling presents a
challenge best explored in studies conducted on the long-term individual and
social benefits of quality primary and secondary education and those related to
the educational needs of African-American children. John Powell suggests that
racially integrated schools present the best educational environment for all
students.93 Powell lauds the benefits of integration under what could arguably
be described as ideal circumstances-"poor and middle-class minorities and whites
(living) in the same communities, (developing) a shared need to care about the
problems tearing away at the nation's cities"94-and he presents an intuitively
powerful argument for continuing the battle to integrate every facet of American
life: neighborhoods, schools, and even families. Nonetheless, when white
Americans have been presented with the choice to create the society Powell
envisions or to remain separate and unequal, they have consistently chosen the
latter. Powell's theories highlight the potential result of a remedy suggested
by Patricia Williams.95 Williams's discussion of the best way to integrate this
world suggests that perhaps it should be done from the inside out:
(I)n a technological age, guerrilla warfare must be redefined. I dream of the
New Age manifesto. We must all unite, perhaps with the help of white male
college graduates who are willing to smuggle small hermetically sealed vials of
black sperm into the vaulted banks of unborn golden people; we must integrate
this world from the inside out. We must smuggle not the biological code alone,
but the cultural experience. We must shake up biological normativity, bring our
cause down to particulars, to the real terms of what is at stake in the debate.
We must be able to assert the battle from within, and in the most intimate terms
conceivable.96
Thus, the voluntary integration envisioned by Powell has not materialized,
and the forced integration contemplated by Williams, similar to court-ordered
busing in the school desegregation cases, can only be accomplished at a
considerable cost to black America. Nationwide, increased levels of racial
hostility have been directed at blacks.97 Racism does not respect socioeconomic
class. Black children living in urban communities and shipped to suburban
schools have been the targets of racial hostility as frequently as blacks living
in predominantly white neighborhoods and attending suburban schools.98
Many integration policies focus on black access to predominantly white
schools in predominantly white suburbs. Yet shipping black children to
predominantly white environments has often proven detrimental to their
wellbeing. Race-related incidents have ranged from the inadvertent humiliation
of young children barely old enough to understand racial difference to targeted
vilification of particular black students. In one incident, "(w)hen (a) little
girl told her kindergarten classmates that she wanted to be an angel when she
grew up, they laughed."99 The teacher explained: "'The students had never seen a
black angel.'"100 As of December 25, 1995, only one of the 900 teachers in this
St. Cloud, Minnesota, school district was black.101 Presumably, thousands of the
district's children have never seen a black teacher.102 Black parents in
Minnesota103 and a coalition of community groups called Minority
Education Partnership, Inc.104 have expressed concern over race
relations in the state.
The partnership's executive director commented:
When I talk to white students about racism, especially in Greater Minnesota,
it's something that they don't know a lot about.... And in the meantime, they
continue to perpetuate the cycle of racism and oppression in ways they're not
even aware of. And I'm sure you've heard many people say, "I just didn't know.
Sorry, I just didn't know." Well, I think we've come to a point in time where
not knowing is not acceptable. You have to know.l05
While Minnesota parents have concluded that academic achievement is more
important than racial balance, they concede that schools with high minority
enrollments should get equal resources.106 If equality of resources is the
overriding concern, then perhaps these parents have also come to a quiet
realization that forced integration has served mainly to promote unrealistic
expectations concerning access to equal educational opportunities.
Racist incidents directed at blacks are sometimes minimized by discussions of
white disaffected youth or the low-achieving white male who is prone to
scapegoating racial minorities. When these incidents occur in elite communities,
the response is one of bewilderment. The following incidents in Cambridge,
Massachusetts, and Greenwich, Connecticut demonstrate that such incidents do
occur in wealthy and upper-middle-class districts.
The Commonwealth Day School, a 90% black private elementary school, was
driven out of a wealthy, liberal community in Cambridge, Massachusetts,
following a successful campaign that included a petition signed by Harvard Law
School Professor Laurence Tribe.107 Court orders prevented the owners from
opening the school for nearly two years before they gave up the fight and sold
the property.108 While their opponents claimed to be concerned about traffic and
safety, none of these issues arose during the nearly fifty-year tenancy of a
prep school in the same location before the Commonwealth Day School purchased
the property. Nor have there been any court orders to shut down the
("lily-white")109 Buckingham, Browne & Nichols school located just a few blocks
away.110
Scandal rocked a similarly well-to-do northeastern community in 1995. Five
white male seniors at a high school in Greenwich, Connecticut, inscribed a coded
message in a school yearbook that spelled out "kill all niggers."111 Robert
Babcock, the affirmative action administrator for the state department of
education, said most complaints about racist situations come from suburban
schools with few black students.112
For middle-class blacks who find security in the comfort of America's middle
class in predominantly white environments, the threat of betrayal by whites is
ever present. Charles Lawrence of the Georgetown University Law Center details a
compelling story about the anguish experienced by his sister's interracial
family when an incident occurred that disabused them of the belief that they had
found friendship and acceptance in a predominantly white Delaware community.113
One evening, four high school seniors painted an eight by twenty-five foot
soccer kickboard, depicting racist and anti-Semitic slogans such as "Save the
land, join the Klan" and "Down with Jews"; the students also drew twelve hooded
Klansmen, swastikas, and a burning cross, along with a cartoon figure of
Lawrence's nephew, identified by name.114 To the right of the boy's head was a
bullet, and farther to the right was a gun with the barrel head
and the words "Kill the Tarbaby" underneath.115 When the incident
was
dismissed by other parents as a prank, Lawrence's sister's heartache was
compounded by the failure of the people with whom she lived and worked to
"recognize that she had been hurt, to understand in even the most limited way
the reality of her pain and that of her family."116
Similar stories of gross indifference emerge in mixed-race and predominantly
black environments as well as from both government and privately sponsored
expressions. James Forman chronicles the oppressive nature of government speech
directed at black Alabama residents when state officials seeking to signify
their opposition to Brown incorporated the Confederate flag into the state flag
and hung it over the state capitol building. He further describes his last year
of high school in Georgia as follows:
It is the spring of 1984 in Atlanta, and the groundskeeper at Franklin Delano
Roosevelt High School is starting his morning routine . . . carefully unfurling
and raising a series of flags. First is the American flag, last is the Atlanta
Public Schools flag, and sandwiched between the two is the Georgia State flag. I
am drawn to this flag, particularly to its wholesale incorporation of Dixie. I
observe the same scene almost every morning, and almost every morning I hate the
fact that I watch....
. . . I think of the incongruity of having black children, in a largely black
city, watch a black man raise the symbol of the Confederacy for us all to
honor.... My eyes close tightly, my fists clench, and I slowly force from my
mind images of the flag, of the Ku Klux Klan, of Bull Conner and George
Wallace--of black people in chains, hanging from trees, kept illiterate, denied
the opportunity to vote.117
The nation's initial experience with desegregation renders the incidents
noted above relatively mild by comparison.118 Yet they demonstrate that
communities in turmoil offer far from ideal learning environments for students,
especially when racist incidents are exacerbated by the official response to
offending conduct. For example, the Brentsville, Virginia varsity baseball team
scratched a circular symbol in the dirt near their dugout before every game as a
good luck ritual.119 It was similar to a racist symbol called "the well" which
represents "four hooded Ku Klux Klansmen looking at a black man they have just
thrown down a well."120 The superintendent recommended that the assistant coach
be fired for knowingly allowing varsity players to use the racist symbol, and
school officials decided to implement programs to teach racial tolerance.121 The
director of the school system's multicultural program warned that they do not
expect teachers to become "'extreme, to provide an Afro-centric curriculum,'"
but naturally to include other cultures.122 If the teachers and coaches could
naturally include other cultures, then the incident itself would have been
atypical. Moreover, the characterization of an Afrocentric curriculum as
"extreme" speaks volumes about the selection of this individual to lead the
"diversity" training programs.
Similar issues arose in 1995 in a New Haven, Connecticut, magnet school. West
Hills Middle School is part of a kindergarten through eighth grade integration
magnet program that a local newspaper described as one of the city's "elite and
most racially diverse schools."123 In 1995, the school's student population was
approximately forty-four percent white and fifty-six percent black, Asian
American, and Latino combined,124 and the school employed two blacks out of
approximately fifty professional teachers and administrators. 125
In February 1995 (Black History Month), eighth graders were
required to read
Mark Twain's The Adventures of Huckleberry Finn.126 The book's main black
character, Jim, is modeled after the minstrel show characters of whom Twain was
so fond.127 Furthermore, the book uses the word "nigger," arguably one of the
most controversial racial epithets, 213 times.128 According to psychologists at
the Yale Child Study Center, from a developmental perspective, twelve and
thirteen year-olds are ill-prepared to benefit from the book because of its
degrading and derogatory characterizations of blacks.129 Many education scholars
agree that some high schoolers, let alone younger adolescents, are not able to
process the racial dynamics.130 The book is best taught in historical context,
with a host of specific comparative readings.131 When one of the few black
characters in students' required reading over eight years of education is
referred to as "nigger" over 200 times in one thin volume, Twain's book
represents 213 separate assaults on students' psyche.132
According to the President of New Haven's Black Parent Teacher Organization,
a public school teacher whose eighth grader was also reading Huckleberry Finn at
West Hills, the problem is racism.133 The bastardized version of slavery
presented in the book represents what America would like to perceive as
truth/reality: "Huckleberry Finn is pernicious to our children because it
diminishes the atrocities committed during the institution of chattel slavery in
this country. There is no horror, rape, castration, mutilation, torture,
lynching, violence, resolve, true malevolence, beatings, and/or screaming."134
Parents met with school administrators and asked them to withdraw the book from
the eighth-grade curriculum.135 There was a consensus among a diverse group of
parents that the middle-school curricula need to affirm the positive aspects of
black heritage in order for black children to develop positive selfesteem. 136
Black parents believed that no other group that brought a similar claim would
have been treated with such indifference or subjected to such delay.137 After
the book was suspended from classroom use pending a final decision, the language
arts teacher distributed a homework assignment about the book which also
contained the word "nigger."138 Parents sat in the classes in rotating shifts
for two days to prevent this from happening again.139 The teacher was visibly
upset, and the principal apparently told staff members that the reputation of
the entire school was at stake.140 The school's administration supported the
teacher and repeatedly cancelled important school meetings, making relations
between parents and administrators more strained than ever.141 A mixed-race
group of parents agreed wholeheartedly that the book should be removed.142 It
was withdrawn from the curriculum and the school was pressured to hire more
black teachers.143 The justification given by the superintendent for finally
pulling the book was that the school was in danger of being "'torn apart.'"144
Some white parents, clearly surprised by the strong show of black parental
support, objected to its removal and declared the book a literary classic.145 As
a black parent involved in this incident, I responded to this claim by offering
the following analogy: In almost every video store in America, in the "classics"
section, is the movie Heidi. The story depicts an unlovable old man whose heart
is softened by the love and encouragement of his orphaned granddaughter.
Americans have watched the movie for years and gained a stronger appreciation of
the role of intergenerational support in their lives. But if for some reason,
the old man had referred to his granddaughter as "the little bitch" or "my
bitch" or "that bitch" 213 times, certainly school administrators would not
require students to watch the film. As Pulitzer Prize winner Jane
Smiley wrote:
The sort of meretricious critical reasoning that has raised
Huck's paltry
good intentions to a "strategy of subversion" (David L. Smith) and a "convincing
indictment of slavery" (Eliot) precisely mirrors the same sort of meretricious
reasoning that white people use to convince themselves that they are not
"racist." If Huck feels positive toward Jim, and loves him, and thinks of him as
a man, then that's enough. He doesn't actually have to act in accordance with
his feelings.146
Meanwhile, black parents were told that their children were not complaining,
and there were reports of retaliation against the children of the most actively
involved parents.147 Black parents then embarked upon a course of action that
effectively precluded school officials from continuing falsely to represent the
school as a model of diversity.148 For example, when one of the teachers was
considered for the guidance counseling position at the school, the black parent
group sent the superintendent a letter, which reads in part:
Our past experience with the school's teachers and administrators has
convinced a significant number of parents that the overwhelming(ly) white,
female faculty and staff at the school have demonstrated almost no understanding
of, or commitment to, issues of diversity despite assertions to the contrary.149
During the Huckleberry Finn incident, several meetings and discussions were
scheduled to bring understanding and closure to the discussion, but none of the
teachers attended.150 The absence of virtually all of the school's teaching and
most of its professional staff demonstrated how little they cared about the
substance of the discussion on diversity and about how they were perceived.
This controversy demonstrates the tension between one group of parents
(mostly black) who wanted meaningful involvement in school policies, and another
group (mostly white) that expected to maintain control. The letter quoted above
reiterated the impact of the exclusionary practices on the school environment.
The parents referred to a pattern of inviting only the white parents who were
active in the school to participate in decisionmaking at the school, even though
the parents most actively involved in the diversity issues had made it clear
that they, too, expected to participate.151 The black parents charged school
officials with excluding them altogether, providing such short notice as to make
participation almost impossible. As further comment on their motivations,
administrators at West Hills were accused of diluting the strength of black
parental participation by alternating contact between the assertive group of
black parents with the less informed passive group, allowing administrators to
maintain the appearance of inclusion as they continued business as usual.152
Racial integration in public education has been a slow and difficult process.
Many wonder whether the alleged benefits of integration can ever be fully
achieved in environments like the one described above, where students and their
parents are no longer separate but are hardly treated as equals. For the most
part, public education since Brown continues along separate and unequal lines.
In response to the mandate from the Connecticut Supreme Court in the Sheff case
described above, the Governor has appointed an Educational Improvement Panel to
make recommendations and propose remedies for the troubled school system.153 The
proposed solutions include increased opportunities for school choice: regional
magnets, interdistrict public schools, and more charter schools.154 School
choice may be the one movement capable of responding to the needs of diverse
communities with a message we all understand: that "separate but equal" in
public institutions is impermissible only when involuntarily
imposed.155
However, state legislatures, cognizant of the problem with racial segregation,
have passed school choice legislation that takes into account patterns of racial
segregation that may lead to increased isolation.156 Even so, school choice
programs have engendered their fair share of controversy and skepticism that
they will produce more integration. Examining questions of racial equity rather
than integrative potential surrounding school choice initiatives is a
prerequisite for proper evaluation of their presumptive benefits, which may
include structural change to the schools, recognition of individuality,
increased competition, accountability, improved educational outcomes, and equal
educational opportunities.157 If choice delivers all that its proponents
promise, then racial integration in public schools will evolve as an independent
act of volition. Without court intervention, most parents, black and white, seek
quality first, and those who want quality and integration may be willing to work
hard to achieve and maintain it.
III. PUBLIC SCHOOL CHOICE
To understand the role of school choice in the education debate, as well as
the differences between public choice programs, it is necessary to look at the
major areas of discussion concerning effective schooling and education reform.
There are five fundamental characteristics necessary for creating successful
schools: (1) "a dynamite principal with ample authority and support and who is
held accountable"; (2) high quality teachers; (3) a rigorous academic program;
(4) active parental involvement; and (5) sufficient financial support.'158
Although the literature on effective schooling abounds, none of these
characteristics is self-defining and, as demonstrated below, each of the
elements listed above has been the subject of interesting research. For example,
research on effective schools in the United States and the United Kingdom
demonstrates that to improve output, principals need strong instructional
leadership rather than administrative acumen.159 Traditionally, there has been
an emphasis on internal maintenance, on "running a smooth ship," rather than on
achieving strong results from teaching.160 Whereas accountability generally
implies a standard of fiscal responsibility, or successful outcomes related to
identifiable goals, in the education arena it has largely become a shorthand
phrase for test results.161 Despite recognition that the sum total of the
educational enterprise cannot be judged or viewed only through the lens of
standardized assessment, test scores remain the primary measure of success for
all educational programs.162 The importance of staff development to creating
quality teaching staff and exceptional learning environments is acknowledged as
an important feature of educational improvement, but is not often put into
practice for technical and political reasons.163 Effective opportunities for
professional growth and improved academic outcomes require consensus about the
school's mission and the relationship between the curriculum, teaching methods,
and goals to be achieved. These elements are often lacking. Moreover, inadequate
assessment of student needs makes it harder to identify learning objectives, and
intervention, therefore, comes too late.
Learning from successful education models can be a daunting task for some
schools because the top examples all seem to have different models for student
achievement; there is no one-size-fits-all model.164 Beyond schoolbased
initiatives, parental involvement has become the rallying cry from those most
interested in giving parents credit for the educational success of children or
assigning blame for the lack thereof.165 As education costs continue to rise,
lack of financial support is as much a concern as lack of parental support in
some schools. The overriding question presented by these issues
is who among
the potential producers of education is best equipped to serve the needs of the
students and overcome many of the problems in education. This is where school
choice initiatives vary. Most school choice programs, which include
inter/intradistrict magnets and interdistrict public schools, take the
traditional approach and leave the task of educational policymaking to
professional educators. Charter schools, on the other hand, by opening up the
arena to nonprofessionals, can be seen as the equivalent of authorizing
paralegals to run law firms and perform routine legal services, tasks that have
traditionally only been executed by lawyers.
Although numerous new and innovative ideas regarding any one part of an
educational program could become part of a school choice plan, the most
politically viable choice initiatives fall into two basic categories. Private
school choice initiatives, which have been widely discussed in legal
scholarship, offer financial subsidies such as tuition vouchers or tax credits
for students wishing to attend private, often parochial, schools.166 Private
sectarian and nonsectarian schools have been credited with producing higher
academic achievement in a cost-efficient manner.167 Public choice plans, on the
other hand, are often part of an existing school district or receive public
funding, and all operate under local or state school boards. Under the top three
plans-magnets, inter/intradistrict public schools, and charters-public school
students may apply for enrollment at schools other than those to which they
would be assigned under existing regulations.168 Admission is usually then
determined by lottery.169 Intradistrict public choice often begins as a remedy
for past discrimination leading to segregation in a particular school district.
Officials are able to override parental choice in an effort to maintain a
certain racial balance in the district.170 Most schools are located within a
single district, but students who become part of regional plans do cross
district lines.171
Interdistrict plans are more expensive to operate because students usually
require daily transportation to get from one district to another, and there are
often differences in per pupil expenditures between the two districts.172
Typically, the "receiving" (suburban) school district will take students from
urban districts according to the amount of space available in its classrooms.
The "sending" (urban) district may have to reimburse the receiving district for
every student transferred.173
Magnet schools are a widely known and popular public choice plan. Magnets
were designed to ameliorate the hypersegregative state of certain school
districts.174 Magnet programs target specific city schools and upgrade the
quality of the educational program and facility in order to lure white students
into the city.175 Federally funded magnet school programs respond to the dilemma
presented by white flight, namely, a disproportionately small number of white
children in urban school districts. Magnets combine large financial expenditures
with the use of racial quotas.l76 Thus, monies are often poured into city
schools in order to desegregate a learning environment, even when those same
funds might be better spent simply raising the quality of the education for
urban children. In one city, more than $ 500 million was spent to construct new
magnet schools and to remodel existing schools, but white students still made up
less than three percent of the district's total enrollment.177 Kansas City spent
1.4 billion dollars to upgrade its schools under the most extensive magnet
school plan in the nation.178 After seven years of monitoring, the gap between
local and statewide test scores was still significant.179
Racial balance is not the equivalent of district-wide proportional
representation under magnet integration policies. Students are not admitted to
magnet schools in numbers that reflect the demographics of the district;
instead, they are admitted under formulas that essentially ask how much
integration is too much before the white population becomes unstable.180 In
Kansas City, "more than 3000 black students languished on magnet school waiting
lists while available magnet schools sat half-empty waiting for the requisite
number of white students to enroll."181 One black parent said that when her
daughter "didn't get in the first time, I applied again and said she was
white."182 The district settled on a plan that allowed six black children to
enroll for every four whites.183
Other integrative policies have required formerly racially exclusive public
schools with superior academic programs to admit a certain percentage of black
children to diversify the student population and increase minority access to
quality educational programs. Schools adopting these policies run the risk of
being sued for denying admission to whites. Some of the schools are not part of
a choice initiative per se, because students must compete for admission. For
example, when a white female was denied admission to one of Boston's most elite
high schools, her family charged school officials with reverse discrimination
because she scored higher on the entrance exam than some of the black students
admitted, even though there were whites admitted who also scored lower and none
of the students admitted were unqualified to attend the school.184 Similar to
the case of the all-black male academy in Detroit,185 a settlement was reached
in the case that allowed her to attend the school. The end result in both cases
is the same: The policy's intended beneficiaries lose out to competing
interests. Thus, similar to most public school choice programs, this reverse
discrimination challenge opens the door once again for the ratio of white
admissions to desirable schools to continue to rise disproportionately.
According to Joseph Viteritti:
If there is any evidence that choice has benefitted more advantaged families,
it is most apparent in public school choice programs, now extant in 29 states,
where students compete for limited space in sought-after schools, often favoring
those who are most articulate, most informed, and least in need of improving
their lot.186
In the next Part, I turn to an examination of one school choice
option-charter schools-that could help solve the diversity dilemma I have
described. Charter schools on the whole are least likely to favor one group of
students over another because diverse groups of parents and educators are often
linked to, if not part of, the coalitions founding the schools.
IV. THE POTENTIAL OF CHARTER SCHOOLS
It is increasingly important for black America to assess which public
school choice programs offer worthwhile alternatives to the current system.
Charter schools may provide an appropriate means for parents to have meaningful
involvement in the education of their children because they provide an
unprecedented opportunity for parent involvement in the operation and design of
a school.187 Under most charter legislation, parents can actually apply to open
a school that they have designed.189 Charter schools strengthen parental
commitment to the schools their children attend because parents select a
particular school after deciding that it meets their families' needs and because
they are assured continued participation in how the school is to
be run.189
There are few restraints upon parents and administrators who want to experiment
with educational programs and special services.190 However, as public
institutions, charter schools remain nonsectarian, and admissions may not be
unlawfully restricted.
Charter legislation allows private persons and institutions of higher
education to develop and implement plans for individual public schools.191 The
critical difference between magnet and charter schools is the latter's goal of
educational reform. Reform, rather than integration, is the overriding
legislative purpose of charter schools.192
The Charter Movement itself appears to be most concerned with creating a
process whereby the constituent community retains decisionmaking power over all
aspects of the school program.193 Innovation and reform are the linchpins of the
Charter Movement's promise to produce schools with greater accountability and
less bureaucracy.194 The Connecticut State Department of Education introduced
the goals of the state's charter legislation as follows:
Legislation passed this session can prove to be a catalyst in the
restructuring of our public schools. Charter schools can serve as another
vehicle in the creation of innovative and diverse educational settings for our
students. Through a charter, a private entity or coalition of private
individuals, is given the public authority to run an independent public school
which is legally autonomous from the local school district. If properly
developed, they can create opportunities for improved student learning and
academic excellence for all students by allowing for flexibility in the design
of each school's educational program without compromising accountability for
success.195
Out of all the public choice initiatives, charters provide the only viable
means of local control. Supporters of charter schools see them as a means of
achieving the benefits of the conceptually inviting but essentially impotent
initiatives toward site-based management.196 Site- or school-based management
reform is designed to alter governance structures to give administrators,
teachers, and parents real power and authority to work together to make major
changes in established educational practices.197 As one commentator has stated:
"I suspect the truth is that charter schools represent something far more
threatening to the fabric of public education than simply adding more
competition. The real issues are power, governance and decisionmaking
authority."198 Governance and decisionmaking power are key elements for
improving the quality of educational opportunities for black children.199
Autonomy enables parents to help devise the programs that most easily fit the
practical, emotional, and educational needs of their children.
For those who believe that integration is important to some socially desired
end, the opportunity to develop a truly innovative multiracial educational
program exists.200 If parents decide that school outings and field trips offer a
more educationally sound experience than access to the Internet, that decision
can be made at the school level. If teachers desire to eat lunch with their
students, rather than alone or with others in a teachers' lounge, they are free
to do so, often without the burden of a union contract which might forbid that
activity.201 One study hypothesizes that teachers' unions have influenced
school budgets, hiring matters, and educational programs in a manner that
standardizes the workplace, so that resources are reallocated from programs for
the disadvantaged and gifted into more traditional teaching
areas.202 It is
difficult to achieve reform under these circumstances; hence, along with the
dramatic increase in school reform initiatives,203 politicians and teachers'
unions have increasingly come under attack. The underlying assumption driving
the charter movement is that we achieve more successful schools only by
utilizing the knowledge of all stakeholders, including parents, teachers,
business and community leaders, to design and operate them through shared
governance.204 The most controversial plans effectively remove local boards of
education as the governing authority over these schools.205 Under charter
legislation, school funding is tied to enrollment.206 Charter developers provide
a detailed plan for opening a school, as well as methods of self-assessment.207
The charter application must describe with specificity the school's mission and
vision, the range of community support for the school, and the relationship
between its curriculum and instructional program to improved educational
outcomes.208 Admission is conducted by lottery. As a public institution, charter
schools must operate in accordance with the law, using nondiscriminatory
admissions policies particularly with respect to students with special
educational needs and those learning English as a second language.209
Black critics of charter schools view them largely as quick fix, reform
onthe-cheap measures that ignore the urgent needs of urban schools where, they
argue, the majority of black children will continue their enrollment after
"charter school mania" has died down.210 It is true that unless a sufficient
number of charters are granted to individuals with truly innovative designs and
pressing concern for the needs of black children,211 the schools may well only
benefit a handful of blacks and quite a few whites under the guise of education
reform.
Charter schools are unique among public choice initiatives because their
continued existence is tied to their performance.212 Charter schools that fail
to meet the goals outlined in their mission statements will not be renewed after
the initial charter term. Beyond issues of performance and fiscal management,
charter school developers will also face the challenge of dealing with questions
surrounding actual or perceived racial bias, but they must resolve such
controversies in ways that insure fair treatment of students and convene
governing boards that insure equal access to a representative body of parents,
or jeopardize their continued existence. If some magnet and suburban schools
with relatively small numbers of black students have not been held accountable
for their actual or tacit consent to hostile or indifferent treatment of black
students and exclusionary practices that shut black parents out of school
policymaking positions, then charters provide the potential for change.213
Charter schools represent a choice program that opens the education market to
new entrants and launches schools with "coherent missions, curricula, and
pedagogies, and (where) both staff and parents would gravitate to the schools
that they believe are right for them."214
V. CONCLUSION
One proponent argues that the very nature of school choice has significant
independent value apart from academic achievement or other goals articulated by
state legislatures. The promises of school choice are not purely or even
significantly academic:
Choice provides a sense of ownership to the teachers, parents, and students,
thereby restoring morale and renewing commitment and creativity to the
educational process. Student aspirations to graduate increase, as
do parent
and student satisfaction levels with the chosen school. Thus school choice may
effectively establish and maintain beneficial school communities and cultures,
thereby contributing indirectly to students' academic and personal growth.215
As an African-American parent who has sent one daughter to predominantly
white schools most of her life, I know that we have indeed paid the price that
Dr. Wilkinson so candidly described. The single most important thing that the
movement toward school choice demonstrates is that constitutional declarations
have little meaning in the lives of children when their parents are precluded
from active participation in the design and implementation of school programs.
No doubt many of the parents involved in establishing the all-black male
academies understood that their efforts would benefit children who were not
their own. Many educators welcome and achieve success with students whose
parents are unwilling or unable to take part in school programs.216
We are all entitled to greater and varied involvement in the educational
programs of our children. Moreover, this involvement will benefit our children,
whose performance, academic achievement, and social development will all
dramatically improve. As one commentator has noted: "Studies have repeatedly
shown that effective schools share the characteristics of participant ownership,
freedom from external constraints, and a strong and distinctive culture."217
Schools that effectively educate African-American children can be opened and
run by those with the experience and the desire to maintain and preserve a
school culture and community morale in which black children know firsthand that
they can become valedictorians, top scorers on standardized tests, class
presidents, and editors of student newspapers. They can be an effective arm of
communities in transition as black America faces a twenty-first century that
looks all too similar to the nineteenth.
Footnote:
Professor of Law, University of Connecticut School of Law. 1. There is little
consensus about the role of public education in the United States. Some view the
teaching of civic responsibility as the primary goal of education. See, e.g.,
Sheff v. O'Neill, 678 A.2d 1267, 1285 (Conn. 19%) ("'(S)chools are an important
socializing institution, imparting those shared values through which social
order and stability are maintained."') (quoting Plyler v. Doe, 457 U.S. 202, 222
n.20 (1982)); James A. Peyser, School Choice: When, Not If, 35 B.C. L. REV. 619,
623 (1994) (stating that original goals of public schools and compulsory
education were to unify American society around common set of civic virtues and
moral values). Others see a need to prepare future generations to regain a
competitive edge in the global economy. See, e.g., U.S. DEP'T OF EDUCATION,
NATIONAL COMM'N ON EXCELLENCE IN EDUCATION, A NATION AT RISK: THE IMPERATIVE FOR
EDUCATIONAL REFORM 5 (1983) ("Our once unchallenged preeminence in commerce,
industry, science and technological innovation is being overtaken by competitors
throughout the world."); Anthony D. Demma, Jr., Comment, Educational
Accountability in Florida: Meaningful Reform or Marginal Tinkering?, 19 FLA. ST.
U. L. REv. 1145, 1148 (1992) (stating that National Commission's findings "point
to the development of a serious competitive disadvantage").
Footnote:
2. See Stuart Biegel, School Choice Policy and Title VI: Maximizing Equal
Access For K-12 Students in a Substantially Deregulated
Educational
Environment, 46 HASTINGS L.J. 1533, 1583 (1995) (stating that parents are "now
demanding greater accountability from their schools"). 3. See Helaine Greenfeld,
Note, Some Constitutional Problems with the Resegregation of Public Schools, 80
GEO. L.J. 363, 365-66 (1991) (stating that members of African-American community
and those long associated with civil rights movement have "desire to find
solutions to the problems in their neighborhoods and in their cities.... Without
serious attention to the increasing problems of minority groups, and
particularly minority children, we risk losing any chance to reverse the
damaging trend."); see also Robert L. Carter, Public School Desegregation: A
Contemporary Analysis, 37 ST. Louis L.J. 885 (1993) ("I am deeply troubled by
recent Supreme Court decisions which ignore the tremendous racial imbalances in
our public schools and express a zeal to declare an end to federal court
supervision over school desegregation. The Supreme Court's eagerness to proclaim
'Victory!' against governmentally created segregation is woefully premature.").
4. See, e.g., JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS AND AMERICA'S
SCHOOLS 6 11 (1990); Note, The Limits of Choice: School Choice Reform and State
Constitutional Guarantees of Educational Quality, 109 HARV. L. REV. 2002 (1996).
Footnote:
5. See Hon. Gerald W. Heaney, Busing, Timetables, Goals, and Ratios:
Touchstones of Equal Opportunity, 69 MINN. L. REV. 735, 752 & n.lil (1985)
(citing study conducted by United States Department of the Interior). 6. Id. at
752 (quoting national study). 7. See id. at 761-63 (describing origins of legal
battle). 8. See Angelia Dickens, Revisiting Brown v. Board of Education: How
Tracking Has Resegregated America's Public Schools, 29 COLUM. J.L. & Soc. PROBS.
469, 474 ( 1996) (stating that "a large majority of African-American students
are denied the best education their school systems have to offer"); Gary
Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80
MINN. L. REv. 825, 837 (1996) (stating that "the most privileged children
receive the best education"). 9. Cf Dorothy A. Brown, The Invisibility Factor:
Thre Limits of Public Choice Theory and Public Institutions, 74 WASH. U. L.Q.
179, 222 (1996) (stating that whiteness assures inner-city whites that their
children are "not receiving the worst education"); Amy J. Schmitz, Note,
Providing an Escape for InnerCity Children: Creating a Federal Remedy for
Educational Ills of Poor Urban Schools, 78 MINN. L. REV. 1639, 1643 n.33 (1994)
(concluding that children "starting life in most adverse conditions, who have
most need for quality education, receive worst education") (citing NATIONAL
COMM'N ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND
FAMILIES 181-84 (1991)).
10. PETER W. COOKSON, JR., SCHOOL CHOICE: THE STRUGGLE FOR THE SOUL OF
AMERICAN EDUCATION 2 (1994); see also Susan P. Leviton & Matthew H. Joseph, An
Adequate Education for All Maryland's Children: Morally Right, Economically
Necessary, and Constitutionally Required, 52 MD. L. REV. 1137, 1142 (1993)
("'(To those who need the best our education system has to offer, we give the
least. The least well-trained teachers. The lowest-level curriculum. The oldest
books. The least instructional
Footnote:
time. Our lowest expectations. Less, indeed, of everything that we believe
makes a difference."') (quoting The Commission on Chapter 1, Making Schools Work
for Children in Poverty, EDUC. WK., Jan. 13, 1993, at 46, 47);
Schmitz, supra
note 9, at 1639 (concluding that "(c)hildren in impoverished, urban areas attend
dangerous and decrepit schools, where they receive low quality education which
fails to prepare them for meaningful participation in the community").
ll. See generally Daniel Gardenswartz, Comment, Public Education: An
Inner-City Crisis! Single-Sex Schools: An Inner-City Answer?, 42 EMORY L.J. 591,
60042 (1993) (describing broken family environments and impact of negative male
role models on school performance); Greenfeld, supra note 3, at 36344
(describing poor academic performance and social dysfunction of black male
students); Norman Williams, Jr., Note, Using Discourse Ethics to Provide
Equality in Education for African American Children Forty Years After Brown v.
Board of Education, 5 B.U. PUB. INT. L.J. 99, 107-09 (1995) (describing
statistical differences between academic performance and other indicators among
black males and females suggesting that racism has had harsher impact on men).
In addition to falling standards and low levels of achievement, a study of
Florida schools shows that black students are more likely to be expelled or
suspended than white students. Black students often receive harsher punishments
than white students for the same behavior; boys are disciplined more than girls;
and "poor, black male students were over-represented among students who were
disciplined." Diane Rado, Race, Gender Tied to School Discipline, ST. PETERSBURG
TIMES, Jan. 20, 1995, at lB (citing study of discipline in Florida schools).
Similar findings were made in DeSoto, Texas, where blacks make up only 35% of
the student population, but 64% of the students expelled. See Alexei
Barrionuevo, NAACP Says DeSoto Schools Show Bias; Superintendent Vows Inquiry,
DALLAS MORNING NEWS, Apr. 26, 1995, at 34A (discussing proposed
Footnote:
African-American advisory committee to address discrimination); see also
Philip T.K. Daniel & Karen Bond Coriell, Suspension and Expulsion in America's
Public Schools: Has Unfairness Resulted from a Narrowing of Due Process?, 13
HAMLINE J. PUB. L. & POL'Y 1, 32-34 (1992) (discussing disparate impact of
suspensions and expulsions on minority students); Janet Bingham, Minority
Suspensions a Shocker: School Officials Ask Why Rates So High, DENVER POST, Jan.
13, 1996, at 1A (reporting that 59% of black male middle and high school
students were suspended in Colorado Springs; statewide, minorities made up 26%
of enrollment but 41% of those suspended).
12. Some programs feature all-male classrooms; others devote entire schools
to young men at the elementary and high school levels. The schools are commonly
referred to as All Black Male Academies (ABMA), and have been proposed in
California, Illinois, Maryland, Minnesota, New York, and Wisconsin. See
Greenfeld, supra note 3, at 363; Williams, supra note 11, at 102. 13. See
Garrett v. Board of Educ., 775 F. Supp. 1004 (E.D. Mich. 1991). 14. Williams,
supra note 11, at 103 (citation omitted). 15. See Greenfeld, supra note 3, at
364 (describing epidemic of drugs, crime, violence, and dysfunctional families).
16. Gardenswartz, supra note 11, at 592 (citations omitted). 17. See id. at
610. 18. See id. at 611.
19. Williams, supra note 11, at 103 (quoting Male Academy Grades K-8: A
Demonstration Program for Males At-Risk 13 (Mar. 26, 1991) (unpublished study,
on file with Detroit Public Schools)).
Footnote:
20. See Garrett v. Board of Educ., 775 F Supp. 1004, 1006 n.3 (E.D. Mich.
1991) (describing male academy admission program where one-third of applicants
admitted were in low need category). 21. See Williams, supra note 11, at 102.
22. See Garrett, 775 F Supp. at 1014 (holding that program denied equal
opportunities to women). 23. See Williams, supra note 11, at 106.
24. Id. at 105 (quoting Brenda J. Gilchrist, Lawsuit Challenges All Male
Academies: District Charged with Sex Discrimination, DET. FREE PRESS, Aug. 6,
1991, at 3A). 25. See Garrett, 775 F. Supp. at 1006 n.4 (declining to reach
constitutionality of this alternate plan, noting that question was not before
court).
Footnote:
26. Gardenswartz, supra note 11, at 610.
27. There are many outstanding single-sex private schools. For example, Miss
Porter's School for Girls in Farmington, Connecticut enjoys an excellent
reputation. But cf Bennett L. Saferstein, Revisiting Plessy at the Virginia
Military Institute: Reconciling Single-Sex Education with Equal Protection, 54
U. PITT. L. REV. 637, 641 (1993) (criticizing language referring to "respected
tradition" of single-sex schooling as illegitimate justification for excluding
women from quality education programs).
28. Gardenswartz, supra note 11, at 622; see also Mississippi Univ. for Women
v. Hogan, 458 U.S. 718, 724-25 (1982) (holding that classifications must be free
from fixed notions concerning gender role and not designed to exclude or protect
members of one gender presumed to suffer from inherent handicap or innate
inferiority); Vorchheimer v. School Dist., 532 F2d 880 (3d Cir. 1976) (upholding
voluntary program of single-sex high schools in Philadelphia against equal
protection challenge).
29. Garrett, 775 F. Supp. at 1014; see also Williams, supra note II, at
108-09 (describing problems facing urban males and females). The district court
judge acknowledged that the "purpose for which the academies came into being" is
the status of the black male as an "endangered species." Yet the court remained
unconvinced that exclusion of women was substantially related to achievement of
the school board's objectives. See Garrett, 775 F. Supp. at 1007.
Footnote:
30. Williams, supra note 11, at 105 (quoting Lawrence C. Patrick, Sr.,
Detroit Parents Should Have Right to Choose, DET. FREE PRESS, Oct. 29, 1991, at
9A).
31. See Frank J. Macchiarola et al., The Judicial System & Equality in
Schooling, 23 FORDHAM URB. L.J. 567, 569 (1996) (stating that one negative
consequence of judicial activism is that "an overly active judiciary has
suggested that courts have more answers to student success than they actually
do").
32. See Deborah E. Beck, Jenkins v. Missouri: School Choice as a Method of
Desegregating an InnerCity School District, 81 CAL. L. REV. 1029, 1029 (1993)
("Almost forty years after Brown v. Board of Education mandated school
desegregation, thousands of inner-city children continue to attend identifiably
one-race schools. For these children, the right to a desegregated education has
little meaning."); Marilyn V. Yarbrough, Still Separate and Still Unequal, 36
WM. & MARY L. REv. 685, 688 (1995) (stating that racial segregation has reached
highest level since 1968).
Footnote:
33. See Dickens, supra note 8, at 472-73 (noting that tracking
disproportionately places black students in inferior education programs). 34.
347 U.S. 483 (1954).
35. Macchiarola et al., supra note 31, at 585; see also James Traub, Can
Separate Be Equal? New Answers to an Old Question About Race and Schools,
HARPER'S MAG., June 1994, at 36. 36. See infra Part II.
37. Cf. Derrick Bell, Te Dialectics of School Desegregation, 32 ALA. L. REV.
281, 295 (1981) (arguing that effective integration also requires "blacks and
white (to)meet as peers, with each able and willing to recognize the values and
contributions of the other and without whites exercising dominance and control
in every aspect of the relationship").
38. Book Note, The Desegregation Dilemma, 109 HARV. L. REV. 1144,1144 (1996)
(reviewing DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW
(1995)). 39. See, e.g., STEVEN F. WILSON, REINVENTING THE SCHOOLS: A RADICAL
PLAN FOR BOSTON 20 (1992).
Footnote:
40. See Robert A. Frahm, Sergi Shifts Focus from School Choice, HARTFORD
COURANT, Jan. 25, 1997, at Al (noting statement of Connecticut Commissioner of
Education Theodore Sergi that "there is not a single city or state in the nation
that has succeeded fully both in raising student achievement and eliminating
racial segregation").
41. See Brown, supra note 9, at 212-13 (describing impact of public choice
and economic theories on legislative action); Angela G. Smith, Public School
Choice and Open Enrollment: Implications for Education, Desegregation, and
Equity, 74 NEB. L. REV. 255, 281 (1995) (noting that disagreement about role of
public education is highlighted by "distinct and different approaches to
school choice legislation").
42. See CHUBB & MOE, supra note 4, at 207; see also Note, supra note 4, at
2002 (stating that "a true free market for education, like any other market,
requires a threat of failure; otherwise, competition will not push schools to
improve the quality of their educational services").
43. See NATIONAL SURVEY AND ANALYSIS OF CHARTER SCHOOL LEGISLATION: A REPORT
TO THE CITIZENS OF THE STATE OF CONNECTICUT, at 1-1 (Institute for Responsive
Education Report, 1996) (hereinafter NATIONAL SURVEY).
Footnote:
44. One court concluded that when a state has "created a dual system," it has
a continuing obligation to dismantle it. See, esg., Jenkins v. Missouri, 593 F.
Supp.1485, 1504 (W.D. Mo. 1984).
45. See, e.g., Griffin v. County Sch. Bd., 377 U.S. 218 (1964) (invalidating
Virginia plan that closed public schools, leaving black students without
education while providing tuition grants and property tax credits to white
students attending private school); Goss v. Board of Educ., 373 U.S. 683 (1963)
(invalidating desegregation plan in Tennessee because it perpetuated
segregation); Daniel J. McMullen & Irene Hirata McMullen, Stubborn Facts of
History-ThIe Vestiges of Past Discrimination in School Desegregation Cases, 44
CASE W. RES. L. REV. 75, 76 (1993) (estimating that hundreds of districts are
involved in litigation over desegregation of previously de jure segregated
public schools). 46. See Beck, supra note 32, at 1036 (stating that "court's
preoccupation with the legal requirement of numerically desegregated schools has
caused it to lose sight of a policy concern desegregation was designed to
address-improvement of educational opportunity for minority students");
Macchiarola et al., supra note 31, at 568 ("(A)II too often judicial
intervention has shown itself to be inattentive to a philosophy of education and
a sense of what school effectiveness is about. For with all of the new judicial
activity and with all of the effort to guarantee rights . . . our schools seem
to be deteriorating."). Judicial intervention continues to generate a sense of
futility. A proposed all-black male school in Detroit was defeated in the face
of widespread parental support: "(I)t might be wise to reflect on the relative
ease with which self-appointed do-gooders such as the ACLU and NOW, supported by
an oppressive federal judiciary
Footnote:
are able to undermine, to the detriment of the children, the legal and
prudent decisions of elected officials and parents." Williams, supra note 11, at
105. In response to the district court's ruling in the case, the principal at
one of the academies remarked that the decision was clearly "'an example of a
white federal judge making a decision for the African-American community which
he does not live in and which he does not understand."' Id. at 102 n.25 (quoting
Brenda J. Gilchrist, Single-Sex Schools Are Unconstitutional, DET. FREE PRESS,
Aug. 16, 1991, at IA). 47. 593 F. Supp. 1485. 48. See id. at 1488.
49. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT
SOCIAL CHANGE? 79 (1991) ("By 1957, only three years after Brown, at least 136
new laws and state constitutional amendments designed to preserve segregation
had been enacted.").
50. See, e.g., Cooper v. Aaron, 358 U.S. 1, 12 (1958) (noting that federal
troops accompanied black children in face of hostilities). But see David L.
Norman, The Strange Career of the Civil Rights Division's
Footnote:
Commitment to Brown, 93 YALE L.J. 983, 984 (1984) ("During the first ten
years after Brown, the federal government had a very limited role in furthering
school desegregation."). 51. See Aaron v. Cooper, 257 F.2d 33, 35 (8th Cir.),
aff'd, 358 U.S. 1 (1958). 52. See U.S. COMM'N ON CIVIL RIGHTS,
TWENTY YEARS
AFTER BROWN: EQUALITY OF EDUCATIONAL OPPORTUNITY 46 (1975).
53. See Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969)
(holding that "the obligation of every school district is to terminate dual
school systems at once"); Griffin v. County Sch. Bd., 377 U.S. 218, 232 (1964)
(asserting that "relief needs to be quick and effective").
54. See Wendy R. Brown,School Desegregation Litigation: Crossroads or Dead
End?, 37 ST. Louis U. L.J. 923, 924 (1993) (stating that in struggle for
integration, "(l)ives were lost. White segregationists terrorized Black children
and their families who sought to enforce the desegregation principle."). 55.
Busing: Ford's New Route, NEWSWEEK, May 31, 1976, at 26, 26. 56. Id.
Footnote:
57. ROSENBERG, supra note 49, at 78 (quoting Governor Barnett). 58. See
JEROME A. BARRON & C. THOMAS DIENES, CONSTITUTIONAL LAW: PRINCIPLES AND POLICY
622 (1975).
59. Today, after two decades of progress, racial isolation is fast
approaching the early 1970s pre-busing level. See James S. Kunen, The End of
Integration, A Four Decade Effort Is Being Abandoned, as Exhausted Courts and
Frustrated Blacks Dust Off the Concept of Separate but Equal, TIME, Apr. 29,
1996, at 39; see also Leroy D. Clark, Tle Future Civil Rights Agenda:
Speculation on Litigation, Legislation and Organization, 38 CATH. U. L. REV.
795, 800 (1989) (stating that Milliken v. Bradley, 418 U.S. 717 (1974), assured
that white flight would succeed in hindering school desegregation efforts).
60. See, e.g., Milliken, 418 U.S. 717 (rejecting interdistrict remedy for
desegregation of public schools in Detroit).
Footnote:
61. See id. at 737-53.
62. See Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (holding that district
court orders imposing large fiscal burdens in form of salary increases and
remedial education programs violated limits of court's discretion); Freeman v.
Pitts, 503 U.S. 467, 495-96 (1992) (holding that racial assignments were
improper as remedy for demographic changes that are unrelated to prior
constitutional violations); Board of Educ. v. Dowell, 498 U.S. 237, 249-50
(1991) (holding that federal court of appeals could not reinstitute
desegregation plan merely because some previously integrated schools reverted
back to one-race schools once district adopted neighborhood assignment policy);
Missouri v. Jenkins, 495 U.S. 33, 50 (1990) (holding that tax increase imposed
by district court to fund desegregation plan contravened principles of comity
that must govern court's equitable discretion). 63. See Kunen, supra note 59, at
39-40.
64. Urban schools with high concentrations of black and Latino students are
traditionally underfunded when local property taxes provide the financial base.
See Carter, supra note 3, at 887-88 (describing how tax-based public school
funding creates intradistrict inequities); Michael Heise, State Constitution ,
School Finance Litigation, and the "Third Wave": From Equity to
Adequacy, 68 TEMP.
L. REV. 1151, 1151-66 (1995) (describing three different legal approaches to
challenging inequities in school finance systems); Peyser, supra note 1, at 625
(stating that in Massachusetts, more than 60% of "K-12 spending is funded by
local property taxes. Because wealthier communities have higher property values,
their capacity for raising money is much greater than poorer towns and
cities."); Joshua Wolf Shenk, Saving Education: The Public Schools" Last
Hurrah?, CURRENT, July-Aug. 1996, at 3, 9 (stating that "(t)he 'equalization'
movement, which seeks to pool tax money at the state level for more equitable
redistribution to schools, is a welcome step toward alleviating often-glaring
discrepancies in teacher salaries, school facilities, and supplies"); see also
Craig A. Ollenschleger, Another Failing Grade: New Jersey Repeats School
Funding Reform, 25 SETON HALL L. REV. 1074, 1078-79 (1995) (noting that states
have spent large sums defending school systems in courts). See generally Brown,
supra note 9, at 188-202 (discussing evolution of funding reform from 1970s
through 1990s).
65. Despite findings of gross inequality, adequate remedies are almost
nonexistent. Technically, the Constitution prohibited qualitative disparity
under the separate but equal doctrine. See, e.g., Pitts v. Board of Trustees, 84
F. Supp. 975, 979-82 (E.D. Ark. 1949) (noting need to proceed slowly and with
care, court granted defendant school district "reasonable time" to remedy
grossly unequal school facilities, including inferior teachers, libraries,
transportation arrangements, and lack of running water and toilets). 66. As one
commentator has written:
One of the primary reasons we insisted at the 1950 NAACP convention that the
NAACP only sponsor cases attacking segregation head-on, and not cases seeking
only equalization of school facilities, was our belief that integration was
crucial to combatting the generally accepted American mainstream notion that
black people are educationally inferior to white people.
Footnote:
Carter, supra note 3, at 889.
67. In the landmark case overturning the separate but equal doctrine, Chief
Justice Warren delivered the opinion of the Court, stating: "To separate them
(blacks) from others of similar age and qualifications solely because of their
race generates a feeling of inferiority as to their status in the community that
may affect their hearts and minds in a way unlikely ever to be undone." Brown v.
Board of Educ., 347 U.S. 483, 494 (1954).
68. See Clarence Thomas, An Afro-American Perspective: Toward a "Plain
Reading" of the Constitution-The Declaration of Independence in Constitutional
Interpretation, 1987 How. L.J. 691, 699 (citing Plessy v. Ferguson, 163 U.S. 557
(1896)). 69. See id. at 700. 70. 115 S. Ct. 2038 (1995).
71. See id. at 2065 ("Segregation was not unconstitutional because it might
have caused psychological feelings of inferiority.... Psychological injury or
benefit is irrelevant to the question whether state actors have
engaged in intentional discrimination-the critical inquiry for
ascertaining violations of the Equal Protection Clause.").
72. Id. (quoting United States v. Fordice, 505 U.S. 717, 748 (1992) (citation
omitted)); see also James Traub, Ghetto Blasters: The Case for All-Black
Schools, NEw REPUBLIC, Apr.15, 1991, at 21 (discussing benefits of all-black
schools). 73. 678 A.2d 1267 (Conn. 1996). 74. See id. at 1270-71. 75. See id. at
1293.
76. The alleged harm to minority plaintiffs was that racial isolation
(segregation based upon race and
Footnote:
poverty) under a state operated system amounted to unlawful discrimination
against them, according to Articles 1 and 8 of the Connecticut Constitution.
White suburban children were not declared to have been harmed, although the
benefits of an integrated system received judicial notice. See id. at 1285. 77.
See id. at 1270-71.
78. See Matthew Daly, Rowland Calls Sheff Ruling 'Easy Way Out'; Governor
Says Changes May Not Come for Years, HARTFORD COURANT, July 11, 1996, at Al
(stating Connecticut Governor John Rowland "reiterated his opposition to
involuntary busing or an end to local control of schools").
79. Similarly, black parents in DeKalb County, Georgia, who challenged a
busing plan were "highly skeptical about measures to reassign students on the
basis of race." Robert Anthony Watts, Shattered Dreams and Nagging Doubts: The
Declining Support Among Black Parents for School Desegregation, 42 EMORY L.J.
891, 895 (1993). As Doris Wilkinson has noted:
Footnote:
At this political moment, integration of the schools has been an abysmal
failure. Although this mandated change was a necessary prerequisite for granting
access to public accommodations and all other institutions in the United States,
in the school setting, it is malfunctioning.... The data are sparse and
inconsistent on the benefits of busing and school "integration." It is known,
however, that African American children are failing, dropping out at alarming
rates, and graduating without basic literacy skills. In addition, their
developmental and cultural needs are not being met.
Doris Y. Wilkinson, Integration Dilemmas in a Racist Culture, 33 SoCIETY 27,
31 (1996). 80. As Professor Drew Days has argued:
For example, schools that served not only as educational institutions but as
community centers in predominantly black neighborhoods have been closed; the
burden of busing has fallen disproportionately upon black children; black
teachers and administrators have been dismissed and demoted disproportionately;
and black students have encountered increased disciplinary action in recently
desegregated schools.
Drew S. Days, Ill, Brown Blues: Rethinking the Integrative Ideal, 34 WM. &
MARY L. REV. 53, 55 (1992). 81. See Wilkinson, supra note 79, at 31 ("Suppressed
motivation, low achievement, poor test
Footnote:
performance, and attrition rates for these (black) children are major signals
of the failure of school integration. Also, in the desegregated schools, racial
hostility and 'hate speech' have reached an all-time high. Similarly, violence
is a frequent mode of conflict resolution."); see also Williams, supra note 11,
at 101 ("From an early age, African-American students must endure psychological
and emotional stress in order to enjoy the benefits of predominantly white
educational institutions ...."); Book Note, supra note 38, at 1145. David
Armor's empirical research demonstrates that the claimed benefits of integration
for minority children is unsupported. For example, the gains attributed to
integration are likely caused by improvements in the educational status of black
parents, and desegregation may actually lower black children's self-esteem.
According to Armor, none of the studies shows conclusively that racial harmony
improves as a result of integration; other achievement-related benefits have
also been oversold. See id. 82. See Wilkinson, supra note 79, at 27-28.
83. Id. Wilkinson also quotes a public school teacher of 25 years who
attended segregated schools growing up:
"The black child has gotten cheated through integration" because "the black
child has to prove himself (or herself). With integration, (we) got more money,
better facilities, better textbooks. (But) what is missing is nurturing and the
caring. This has had negative effects. Kids who could have been leaders are
pretty much ignored. (You) can't ignore somebody and expect them to behave, to
fit in."
Footnote:
Id. at 29 (alterations in original).
84. See, e.g., Alexei Barrionuevo, First Black Trustee in Lancaster Vows to
Press for Change, DALLAS MORNING NEws, May 15,1995, at 15A (noting that student
population of City of Lancaster is 60% black and Hispanic, while corresponding
teacher population is only 8.5% black and Hispanic); Jeffrey Bils, In Suburbs
Schools Face Diversity Gap: More Non-White Students, but Few Minority Teachers,
CHI. TRB., Sept. 8, 1996, at 1 (noting that more than 99% of new teachers hired
in suburban Chicago schools districts were white); Grace Schneider, Moving in
Floyd, Struggling in Clark; Minority-Teacher Hiring Results
Footnote:
Mixed, CoURIER-J., July 24, 1995, at IA (stating that local "black parents
and community leaders have complained for years that the number of minority
teachers and administrators does not come close to mirroring the racial
composition of either district"); infra text accompanying note 101. 85.
Wilkinson, supra note 79, at 31.
86. Gary Orfield & David Thoronson, Dismantling Desegregation: Uncertain
Gains, Unexpected Costs, 42 EMORY L.J. 759, 783 (1993).
87. See infra notes 113-52 and accompanying text (discussing incidents of
racism affecting low and middle-income blacks). 88. See supra notes 6042.
89. Macchiarola et al., supra note 31, at 585.
90. But cf Beck, supra note 32, at 1046 (describing continuing violation of
minority children's constitutional right to enroll in desegregated schools at
earliest possible time, despite their urgent need).
Footnote:
91. See supra text accompanying notes 14-19.
92. Greenfeld, supra note 3, at 378. For a comprehensive discussion of a
long-term project that applied social and behavioral science principles to meet
the needs of inner-city children in an educational environment, see JAMES P.
COMER, SCHOOL POWER: IMPLICATIONS OF AN INTERVENTION PROJECT 60-75 (1993). See
also James P. Comer & Norris M. Haynes, Meeting the Needs of Black Children in
Public Schools: A School Reform Challenge, in THE EDUCATION OF AFRICAN-AMERICANS
67-68 (Charles V. Willie et al. eds., 1991) (analyzing school reform research
and noting that while prominent models offer some potential benefits in
improving achievement among blacks, the "structure of public education and the
philosophies that have guided its development and implementation have neglected
to recognize and incorporate salient features of black culture and the black
experience in America").
93. See John A. Powell, Living and Learning: Linking Housing and Education,
80 MINN. L. REV. 749, 784-88 (1996). Powell argues that social reasons for
seriously pursuing integration originate from ideas of just and participatory
society and not merely from the Equal Protection Clause. The results of
integrated
Footnote:
education are that academic achievement improves for minority students who
are bused to white schools, the gap in test scores narrows, black children
educated in integrated schools gain employment and admission to college at
higher rates, and the academic achievement of whites either improves or remains
stable. See id. at 788-92; see also JoAnn Grozuczak Goedert, Jenkins v.
Missouri: The Future of Interdistrict School Desegregation, 76 GEO. LJ. 1867,
1880 (1988) (stating that educational achievement data suggest that "significant
benefits . . . arise only when socioeconomic, as well as racial, integration
occurs"). But cf Paul Gewirtz, Choice in the Transition: School Desegregation
and the Corrective Ideal, 86 COLUM. L. REV. 728, 776 (1986) (describing primary
benefits of integration as preparing nonwhites for "racially diverse world" and
giving them access to benefits of white power). 94. Powell, supra note 93, at
787-88.
95. See PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 188 (1991).
Footnote:
96. Id.
97. Cf. Robin D. Barnes, Blue by Day and White by IK)night: Regulating the
Political Affiliations of Law Enforcement and Military Personnel, 81 IOWA L.
REV. 1079, 1117-20 (1996) (citing prominent examples of racial violence). 98.
See infra notes 111-16 and accompanying text.
99. Rob Hotakainen, State Is Urged to Stem Racism; Multicultural Education
Called Key to Diversity, STAR TRI. (Minneapolis-St. Paul, Minn.), Dec. 25,1995,
at lB. 100. Id. 101. See id.
102. Many black children attend schools with few or no black teachers. West
Hills School, discussed infra, had no black teachers at the middle school level
(and only one in the elementary school) before the controversy over Huckleberry
Finn. This problem exists in many jurisdictions. The affirmative action
committee of the Osceola County Schools in Florida worked for two years on the
question of recruiting
Footnote:
black and Hispanic teachers and administrators. Their number one
recommendation was that the Board of Education hire one full-time minority
recruiter whose primary duty would be to seek out talented minority teachers and
administrators. When the Board rejected the recommendation, the committee's
director reminded the all-white school board: "'Your child(ren) can walk into
every school in Osceola County and see their role models. That's not true of
every minority student.'" Geoff Clark, School Board Policy Not Racist, but
Result Is, ORLANDO SENTINEL, Dec. 18, 1994, at 1. 103. See Hotakainen, supra
note 99. For an extended review of the history of racism in Minnesota's school
system, see Cheryl W. Heilman, 127 Booker v. Special School District No. 1: A
History of School Desegregation in Minneapolis, Minnesota, 12 LAW & INEQ. J. 127
(1993). 104. See Hotakainen, supra note 99.
105. Id.; see also Drew Silvern, Cover-Up Racist Incident Is Denied: Poway
Students Appeared in Black Face, SAN DIEGO UNION TRIB., Jan. 12, 1994, at Bi
(discussing how principal wrote of racist incident as "poor judgment" on part of
California high school students who used invitation to KKK picnic as source for
historic skit depicting Klan meeting in which student appeared in blackface). A
Minnesota art teacher was not disciplined after drawing a watermelon and cotton
patch on a picture other students had drawn of a biracial student. See James
Walsh, Troubleshooter Is Sent to Quell School Tension, STAR TRIs.
(Minneapolis-St. Paul, Minn.), Apr. 25, 1992, at IB. 106. See Hotakainen, supra
note 99.
107. See Edward Wagner, Liberal Establishmenton Tory Row, NAT'L REV., Dec.
31, 1989, at 19, 19-20 (noting that petition opposed school's application for
special permit to conduct elementary school).
Footnote:
108. See id. at 20. 109. Id. at 19. 110. See id. at 20.
111. David Stout, Dismayed Greenwich Confronts a Message of Hate in a
Yearbook, N.Y. TIMES, June 15, 1995, at BI (noting that only three percent of
student population is black). An anti-Semitic yearbook incident had occurred in
California the year before. A 13-year-old girl was targeted for vilification on
her first day of class when she wore a Star of David. She was
called a "stupid
Jew" in English class, given the Nazi salute in the hallway, and "Jew" was
scrawled over her picture in the yearbook. See Catherine Bridge, Educators
Battle Rise in Racism, SACRAMENTO BEE, Aug. 25,1994, at NI. 112. One black
student at Sheehan High School in Wallingford, Connecticut, has been called
"nigger" to his face, has argued with whites over being stereotyped, and has
seen the Klan visit the school. See Trevor W. Coleman, Yearbook Incident a
Reflection, HARTFORD COURANT, June 25, 1995, at HI. Students around the country
have been victimized by racism in recent years. Following a freshman year filled
with racist incidents, a 15-year-old returned to a Boston high school during her
sophomore year to find a drawing of a burned black man with a gun pointed to his
head on a blackboard in her home room. Only 60 of the 1200 students at the
school are members of a minority group. See Jordana Hart, Bigotry at School
Footnote:
Still Felt, BOSTON GLOBE, Dec. 6, 1992, at 1; see also E. Richard Walton,
School Woes: Middlebury KKK Posters Latest in Racial Incidents, FLA. TIMES
UNION, Mar. 2, 1996, at 1 (referring to incident in which Florida high school
student hung five posters featuring white hooded Klansmen recruiting students to
KKK); Tawanda D. Williams, North Hills Offers Plan to Combat School Bias, PITT.
POST, Apr. 6, 1994, at C5 (discussing how 10 black students at suburban
Pennsylvania school with 1026 nonblack students have had racial epithets hurled
at them and have been taunted and spat at by group of whites); UPI (Regional
News), May 14, 1993, available in LEXIS, Nexis Library, UPI File (discussing
situation in which students wore KKK insignia on their clothes and placed
"white" and "colored" signs on drinking fountains in central Illinois middle
school).
113. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist
Speech on Campus, 1990 DUKE L.J. 431, 45940 (describing how much of family's
anguish came from parents who rushed to defend students, insisting that incident
was only joke).
Footnote:
114. See id. at 460. 115. See id. 116. Id. at 460-61.
117. James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate
Flag from Southern State Capitols,101 YALE L.J. 505, 526 (1991). The Confederate
flag has long been recognized as a symbol of white racism. See, e.g., Augustus
v. School Bd., 507 F.2d 152 (5th Cir. 1975) (holding that school officials could
ban use of Confederate flag by individual students at school functions on
grounds that flag caused racial tension); Melton v. Young, 465 F.2d 1332 (6th
Cir. 1972) (finding no constitutional violation in public school's suspension of
student for wearing jacket bearing rebel flag). 118. See J. Harvie Wilkinson
III, Tlie Law of Civil Rights and the Dangers of Separatism in Multicultural
America, 47 STAN. L. REv. 993, 996 (1995) (describing courage of early black
integrationists who braved threat of mob violence to enter Little Rock High
School).
Footnote:
119. See Eric L. Wee, Lessons in Tolerance; Brentsville High Plans
Multicultural Programs, WASH. POST., Sept. 7, 1995, at Vl. 120.
Id. 121. See id.
122. See id.; see also Andrea Stone, Past Truths with a Present Spin: Events
Are Reshaped with Passage of Time, USA TODAY, May 19, 1995, at 4A (describing
Senate rejection of new national history teaching standards for elementary and
secondary schools).
123. Karla Schuster, "Huckleberry Finn" Banned from Lessons, NEw HAvEN REG.,
Mar. 17, 1995, at Al (discussing controversy over removal of Huckleberry Finn
from curriculum). 124. See Karla Schuster, Magnet School Lottery Draws Fire, NEW
HAVEN REG., Mar. 10, 1996, at Al.
Footnote:
125. See Statement of Patricia Augustine Reaves, Cochair of West Hills Middle
School Parent Advisory Committee and Elementary School Teacher, New Haven Public
Schools (Feb. 26, 1997) (on file with the Yale Law Journal) (hereinafter Reaves
Statement).
126. Every year the book is taught in thousands of schools across the nation
and controversy erupts over its value. See Gerald Graff & James Phelan, How to
Deal with the "Huck" Problem, WASH. POST, Aug. 17, 1995, at A29. The general
response to problems surrounding the decision to teach the book is to defend it
as an American classic. See Jonathan Rabinovitz, Huckleberry Finn Without Fear,
N.Y. TIMES, July 25, 1995, at BI (describing national conference on preparing
teachers to teach Huckleberry Finn in 1990s).
Footnote:
127. See Allen Carey-Webb, Racism and Huckleberry Finn: Censorship, Dialogue
and Change, ENG. J., Nov. 1993, at 24 (describing Twain's fondness for minstrel
shows). 128. See id.
129. See Statement of Dr. Norris M. Haynes, Psychologist, Yale Child Study
Center (Feb. 27, 1997) (on file with the Yale Law Journal); Statement of Dr.
Edward Joyner, Executive Director, Yale Child Study Center (Mar. 3, 1997) (on
file with the Yale Law Journal). 130. See, e.g., Carey-Webb, supra note 127, at
27 (relating anecdotes in which college classmates recalled feeling
uncomfortable in high school discussions of Huckleberry Finn); cf. Kevin Brown,
Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal
Conceptualization of Race and Public Education, 78 Iowa L. REv. 813, 816 (1993)
(stating that as 16-year-old high school junior, he saw The Adventures of
Huckleberry Finn as "the epitome of a racist novel").
131. See Carey-Webb, supra note 127, at 28 (proposing "principles and
caveats" for teaching of Huck Finn).
Footnote:
132. The failure to include works written by educated blacks in the
nineteenth century left the students with a false sense of history. For this
reason, the sanitized version of the book was no better than the original.
Replacing the word "nigger" with "Negro" would not have diminished the reaction
of students like Doron Flake, an eighth grader who said to his mother, after a
day of reading the book out loud in the class: "'We are the drug dealers, we're
the murderers, we're the rapists, we're everything that's negative. Do I have to
go to school and be Jim too?'" Susan A. Zavadsky, Mom, Son's
Stand on "Huck"
Makes ABC News, NEW HAVEN REG., July 28, 1995, at A3. Another commentator has
noted that cultural values are transmitted through works such as Huckleberry
Finn. Referring to that work, Victor Goode wrote: A basic and historic function
of education is the transmitting of normative cultural values. Unfortunately,
this acculturation process may be tainted by cultural racism. Cultural racism is
expressed through historical myths that romanticize the past. It is also evident
in language, symbols, and in the imposition of white ethnocentric standards on
other racial groups. Victor Goode, Cultural Racism in Public Education: A Legal
Tactic for Black Texans, 33 How. L.J. 321, 321 (1990).
133. See Jimmy-Lee Moore, Why Huckleberry Finn, ADVANCE (New Haven Federation
of Teachers, Union Newsletter), Summer 1995, at 3 (describing "malicious
malignant cancerous (racism) that has been voraciously feasting upon our society
since 1492"). Moore is a teacher in the gifted and talented program at the East
Rock Community School. See id.
Footnote:
134. Id.
135. See Schuster, supra note 123. 136. See Reaves Statement, supra note 125.
137. See infra text accompanying notes 14546. Black students, of course, are
not the only minority group to experience humiliating bias. In one episode,
after classmates harassed and humiliated a Jewish middle school girl, the girl's
grandmother offered to treat the entire eighth grade of her school to a showing
of Schindler's List and to have a Holocaust survivor speak with the students.
The girl's social studies teacher rejected the offer and said, "'I have to get
through the Civil War.'" Bridge, supra note 111.
138. See Homework Assignment Given to Eighth Graders at West Mills Middle
School (Mar.1, 1995) (on file with the Yale Law Journal) (including vocabulary
skills exercise containing the following fill-inthe-blank question: "'Don't ever
tell me any more that a nigger ain't got any talent."'). 139. See Reaves
Statement, supra note 125. 140. See id.
Footnote:
141. See Letter from Janice K. Romo, Principal of West Hills Middle School,
to Parents of School's Students (Mar. 22, 1995) (on file with the Yale Law
Journal) (postponing meeting for third time). 142. See Reaves Statement, supra
note 125.
143. All three of the teachers hired at the middle school since the incident
are African American. See id.
144. Schuster, supra note 123 (quoting Superintendent Reginald Mayo). A
letter was sent to the superintendent on March 23, 1995, affirming that racial
harmony was not threatened. It reads in pertinent part as follows:
We believe that the decision was good for all of the children. Moreover, no
one has reported a decrease in harmony among those parents and children who have
always maintained racial and ethnic diversity in their social interactions ....
(As a parent volunteer,) I am at the school every morning for approximately
15-20 minutes, the seventh and eighth graders and parent
volunteers wait in
the gym until homeroom starts. I am happy to report that the kids are getting
along just fine . . . . .
Memorandum from Robin Barnes to Dr. Reginald Mayo, Superintendent of New
Haven Public Schools (Mar. 23, 1995) (on file with the Yale Law Journal).
Footnote:
145. See Jerry Dunklee, Huck Finn Debate Simmers at City School, NEW HAVEN
REG., July 19, 1995, at A10.
146. Jane Smiley, Say It Ain't So, Huck: Second Thoughts on Mark Twain '
"Masterpiece", HARPER'S MAG., Jan. 1996, at 61, 63.
147. Retaliation included suspensions for minor infractions. Most notably,
the eighth grade language arts teacher, who was not at the center of the
controversy, engaged in what appeared to be retaliatory behavior against eighth
grader Doron Flake, who felt that the book reinforced negative media images of
blacks. At the end of the school year, teacher Joy Niziolek left a stack of
Huckleberry Finn books on his desk. According to his mother, Doron "moved the
books over to the window sill and tried to ignore them and the feelings of
discomfort and anxiety they elicited." The assistant principal assured his
mother that there was no malicious intent on Niziolek's part, that she
"mistakenly" left them there while packing them away. Letter from Marcella Flake
to Joy Niziolek I (May 25, 1995) (on file with the Yale Law Journal). 148. See
Letter from Parents' Group to Dr. Reginald Mayo, Superintendent of New Haven
Public Schools I (Nov. 18, 1995) (on file with the Yale Law Journal).
Footnote:
149. Id.
150. The Mark Twain House in Hartford hosted a seminar for teachers following
the incident at which most of the 31 teachers were from Connecticut, "but none
were from New Haven." Robert Frahm, Th1ain Scholars Defend Huck at Hartford
Seminar, HARTFORD COURANT, July 25, 1995, at Al. 151. See Letter from Parents'
Group to Dr. Reginald Mayo, supra note 148, at 1. 152. See id. at 2.
153. See Rick Green, Panel Adopts 15 Ideas for Schools Remedy; "Choice" I of
Desegregation Options, HARTFORD COURANT, Jan. 17, 1997, at Al; Jonathan
Rabinovitz, Report Urges School Choice in Connecticut, N.Y. TIMES, Jan. 23,
1997, at BI. 154. See Rabinovitz, supra note 153.
Footnote:
155. See Alex M. Johnson, Jr., Bid Whist, Tonk & United States v. Fordice:
Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1432-55
(1993) (arguing for voluntary nonintegration).
156. For example, in Connecticut, financial incentives are offered to
interdistrict state charter schools that have the reduction of racial isolation
as one of their objectives. See Memorandum to Potential Charter School
Developers from Yvette Melendez Thiesfield, Program Manager, Connecticut
Department of Education I (Oct. 15, 1996) (on file with the Yale Law Journal).
Similarly, the state's new charter school legislation requires
that admission
to the new state-funded schools be conducted through a lottery system. See An
Act Concerning Public Charter Schools 2, PA. No. 96-214, 1996 Conn, Legis. Serv.
66061 (West).
157. See COOKSON, supra note 10, at 35.
158. Shenk, supra note 64, at 3. Other authorities are in substantial
agreement. Jaap Scheerens provides a comprehensive evaluation of the most widely
cited national and international research on school effectiveness. Scheerens
concludes that at the level of school organization, the most important
contributing factors in creating schools that work are "pressure for achievement
as an explicit choice in school policy, aspects of instructional leadership,
recruitment of qualified staff, evaluative potential of the school, financial
and material resources of the school, and school climate." JAAP SCHEERENS,
EFFECTIVE SCHOOLING: RESEARCH, THEORY, AND PRACTICE 95 (1992).
Footnote:
159. See SCHEERENS, supra note 158, at 17; see also Samuel Krug, Leadership
and Culture: A Quantitative Perspective on School Leadership and Instructional
Climate, in EDUCATIONAL LEADERSHIP AND SCHOOL CULTURE 163, 169 (Marshall Sashkin
& Herbert J. Walberg eds., 1993) (describing importance of principal who defines
school's mission, manages curriculum and instruction, supervises teaching,
monitors student progress, and promotes instructional climate). 160. See
SCHEERENS, supra note 158, at 17.
161. The current problems with accountability in public education can be
compared
to those in charter schools. Lack of innovation is viewed as a primary
detriment to public education. The primary goal of charter school legislation is
the encouragement of innovative schools that will eventually lead to widespread
education reform. See Ember Reichgott Junge, Charter Schools Will Work Better
than Private School Vouchers, STAR TRIB. (Minneapolis-St. Paul, Minn.), Jan. 23,
1996, at IIA (describing Minnesota charter legislation as having produced much
innovation in 18 schools in just three years). Charter schools are required to
have high academic standards and are expected to outperform their public
counterparts. See ABBY R. WEISS, GOING IT ALONE: A STUDY OF MASSACHUSETTS
CHARTER SCHOOLS 18 (Institute for Responsive Education Report, 1997) ("One of
the major questions that critics and proponents of charter schools will be
asking is: What is the effect of these schools on mainstream education?"). The
mission must include improved educational outcomes, and failure to achieve these
results could result in revocation of the charter. See infra text accompanying
note 212. On the other hand, when public schools begin to fail, they often
receive more tax dollars rather than face extinction. Because most charter
schools are not bound to automatic pay raises or lengthy renewal and tenure
contracts for teachers and staff, they can rest assured that teachers and
administrators who perform poorly need only be endured until the end of a
relatively short contract period. In public education, it amounts to heresy to
suggest that tenure and automatic pay raises undermine quality and that the
focus should be on rewarding excellence. For example, in 1995,
only five out of 900 principals and assistants received negative
evaluations in Broward
County, Florida. Deficient personnel were often transferred rather than
dismissed. See Charlotte Greenbarg, Set Stringent Standards, Then Reward
Excellence, SUN-SENTINEL, June 22, 1996, at 11A.
162. See CHUBB & MOE, supra note 4, at 71 ("(A)cademic achievement is the
most common indicator of school performance in education research (and) the
measure of effectiveness that school reformers now rely on most."); David A.
Squires & Edward T. Joyner, Time and Alignment: Potent Tools for Improving
Achievement, in RALLYING THE WHOLE VILLAGE: THE COMER PROCESS FOR REFORMING
EDUCATION 98-99 (James P. Comer et al. eds., 1996) (hereinafter RALLYING THE
WHOLE VILLAGE) ("Standardized test results receive wide publicity, and the
public judges schools partially on the results of these tests."). According to
Scheerens, "(i)t is no exaggeration to conclude that in all the theories and
models discussed in this chapter (on school effectiveness theory development)
proper evaluation emerges as an essential prerequisite to effectiveness, whereas
unsound evaluation or no evaluation at all is associated with bad or even
perverted organizational functioning." SCHEERENS, supra note 158, at 27; cf
Ernest L. Boyer, Foreword to SCHOOL CHOICE: EXAMINING THE EVIDENCE at xiii
(Edith Rasse & Richard Rothstein eds., 1993) (finding that focus on academic
achievement emphasizes "private benefits of schooling, and departs sharply from
a vast body of work by well-regarded thinkers and writers underscoring the
social imperatives of education and recognizing that schools also promote the
common good").
163. See Michael G. Fullan, Staff Development, Innovation, and Institutional
Development, in CHANGING SCHOOL CULTURE THROUGH STAFF DEVELOPMENT 3-4 (Bruce
Joyner ed., 1990) (concluding that training teachers and fostering their growth
and professional development on continuing basis requires
Footnote:
"wisdom, skill, and persistence," in addition to overcoming political
obstacles associated with "power, bureaucratic positioning, and
territoriality"). The most effective innovation requires considerable technical
assistance following programmatic change, which substantially increases the
level of teacher commitment and practice mastery. See id. at 5. Schools that
cannot afford to send instructors to regional or national meetings or fund
elaborate in-service training programs often must rely on teacher-led
discussions of various teaching models and techniques. Even the cheapest forms
of staff training are expensive for schools facing budget cuts. This is largely
due to the expense of hiring substitutes to cover the classes of teachers
released to participate in the training sessions.
164. The Comer Model focuses upon whole child development and shared
governance. See James P. Comer et al., The School Development Program, in
RALLYING THE WHOLE VILLAGE, supra note 162, at 1; see also Leviton & Joseph,
supra note 10, at 1140 n.19. "Success For All" is a literacy program that
includes one-on-one instruction, specialized curricula, and home visits. See
Leviton & Joseph, supra note 10, at 1140 n.l7. Core Knowledge encourages greater
inclusion in our national literate culture by
developing a model curriculum and building blocks of knowledge that will
prevent the creation of an educational underclass. See E.D. HIRSCH, JR.,
CULTURAL LITERACY: WHAT EVERY AMERICAN NEEDS TO KNow 139-45 (1987). Accelerated
Schools set high standards and provide a challenging curriculum for all
children, including those traditionally placed in remedial classes. See Leviton
& Joseph, supra note 10, at 1141 n.20.
165. See Ron Baker, Parents Must Get Involved for Education to Improve,
MORNING CALL (Allentown, Pa.), Nov. 30, 1995, at A21. A report issued in 1995 by
several publishing groups found that 60% of American households did not purchase
a single book in 1994. See id. A congressional study, entitled Adult Literacy in
America, found that nearly half of adults read and write so poorly that they
have difficulty holding a job in the modern workplace. See id.
Footnote:
166. See, e.g., Michael J. Stick, Educational Vouchers: A Constitutional
Analysis, 28 COLUM. J.L. & SOC. PROBS. 423, 427-29 (1995) (stating that
voucher plans provide subsidy for each child for parents to use at school of
their choice); Joe Price, Note, Educational Reform: Making the Case for Choice,
3 VA. J. Soc. POL'Y & L. 435, 463-65 (1996) (noting that some plans are
restricted to public and private nonsectarian schools, while others include all
primary and secondary schools). The primary benefits include increased
competition in the education market leading to increased productivity, more
educational choices for parents, and reduction in the financial burden of
parents who choose to send their children to religious schools. See Price,
supra, at 45648; see also Diane Ravitch, D.C.'s Schools: Under the Gunderson: A
Plan for Reforming a System That Seems to Think Poor Kids Can't Learn, WASH.
POST, Dec. 10, 1995, at C2 (noting that other voucher plans have been limited to
students from low-income families). A major controversy over vouchers is whether
they have the effect of advancing religion, when used for parochial schools, in
violation of the First Amendment. See William D. Anderson, Jr., Note, Religious
Groups in the Educational Marketplace: Applying the Establishment Clause to
School Privatization Programs, 82 GEO. L.J. 1869,1880-902 (1994).
Footnote:
167. Cf. Paul E. Peterson et al., School Choice in Milwaukee, PUB. INTEREST,
Fall 1996, at 38, 49-56 (arguing that Milwaukee private school choice program
has increased student achievement at lower per pupil cost than public schools).
168. See COOKSON, supra note 10, at 14-16.
169. See, e.g., Sandra Evans, Public Schools Sprout Options, Special Programs
Offered for Even the Youngest, WASH. POST., Feb. 25, 1996, at Al (noting that
"Fairfax and Arlington schools fill slots for their alternative schools through
a lottery"); Howard Libit, Lottery Used to Fill Magnet High Schools; 250 Sth
Graders Picked from 607 Applicants for High-Tech Program, BALTIMORE SUN, Mar. 6,
1997, at IB. 170. Cf. Peyser, supra note 1, at 621 (arguing that choice is
becoming more relevant). 171. See COOKSON, supra note 10, at 15.
172. Contending that its sending fees are inflated, one New Jersey school
district has supported a bill to lower the fees that "sending districts" must
pay to "receiving districts." See Randy Diamond, Sending Districts Press for
School Reforms, RECORD (Bergen, N.J.), Sept. 27, 1993, at A3.
173. See Smith, supra note 41, at 267-68.
174. For example, in 1980, St. Louis schools were deemed to exemplify
state-ordered segregative measures reaching back to the antebellum period. See
Adams v. United States, 620 F.2d 1277, 1288 (8th Cir. 1980). The school district
agreed to a settlement plan that allowed blacks to attend magnet schools and
that attempted to attract whites from virtually all-white city schools. See
Liddell v. Missouri, 731 F.2d 1294, 1309-10 (8th Cir. 1984).
175. But see Beck, supra note 32, at 1035 (noting that in Kansas City "a
highly touted and extraordinarily expensive magnet school program... failed to
lure a significant number of white students"); Kimberly C. West, Note, A
Desegregation Tool That Backfired: Magnet Schools and Classroom Segregation, 103
YALE L.J. 2567, 2568-79 (1994) (noting that many magnet schools are segregated
by classroom).
Footnote:
176. In Cambridge, Massachusetts, the "idea and ideal of desegregation was at
the forefront in developing (the city's) choice plan." As with most other magnet
school programs, parents list their first, second, and third choices, and
assignments are made based upon preferences and racial balance. See Smith, supra
note 41, at 270. Minnesota's open enrollment program allows students in large
districts to transfer to the schools of their choice as long as their movement
does not upset racial balance. See id. at 274. 177. See Beck, supra note 32, at
1035-36. 178. See Orfield & Thoronson, supra note 86, at 782. 179. See id.
180. See, e.g., Days, supra note 80, at 55-56 (noting that "where magnet
schools offering innovative educational programs have replaced formerly
all-black facilities, black student enrollment in the special programs has been
limited by the need to maintain racial balance").
Footnote:
181. Beck, supra note 32, at 1036. 182. Kunen, supra note 59, at 39. 183. See
Beck, supra note 32, at 1036.
184. See Leonard Greene, Ruling Opens Door to Challenges That Could Spell
Doom for Blacks, Hispanics, BOSTON HERALD, Aug. 23, 1996, at 4. The girl was
from a well-off family that managed to get three of its children into the most
prestigious school in Boston. When the third daughter was accepted by the
presumptive second-best school in the city, her family went to court and
challenged the admissions policy of the first school, arguing that racial quotas
resulted in denial of her application in violation of her constitutional rights
to equal protection under the law. See id. 185. See supra text accompanying note
23.
186. Joseph P. Viteritti, Stacking the Deck for the Poor: The New Politics of
School Choice, BROOKINGS REV., June 22, 1996, at 10-11.
187. See infra notes 2014 and accompanying text.
188. See CENTER FOR SCH. CHANGE AND THE EDUC. COMM'N OF THE STATES, CHARTER
SCHOOLS: WHAT ARE THEY UP TO? A 1995 SURVEY 16 (Education Commission of the
States & Center for Social Change, 1995) (hereinafter CHARTER SURVEY)
(demonstrating that parents are ranked first, followed by teachers, and
interested community members, as most common partners involved in designing
nation's charter schools).
189. Charter developers rank their top three reasons for opening a school as
follows: (1) quality of teaching and learning; (2) autonomy in running the
school according to a certain principles and/or philosophy; and (3) more
parental control. See id. at 15; see also WEISS, supra note 161, at 7-8. 190.
See CHARTER SURVEY, supra note 188, at 14, 18 (demonstrating wide variety of
models for schools and services offered).
Footnote:
191. See id. at I ("A charter proposal is written by a team of individuals
interested in establishing the new school. Charters have been granted to
parents, teachers, community groups and other organizations."). 192. See supra
notes 189-90 and accompanying text.
193. See WEIss, supra note 161, at 11 (citing governance issues as greatest
challenge facing charter schools).
194. See Ravitch, supra note 166. The schools themselves have been called one
of the fastest-growing innovations in education policy. Over 20 states have
passed charter legislation. Nationwide, over 200 schools have been granted
charters that are designed to operate outside of most rules and regulations. See
generally NATIONAL SURVEY, supra note 43, at I-1 (discussing key questions
surrounding charter schools); WEiss, supra note 161, at 6, 7 (discussing
benefits of charter schools).
Footnote:
195. Connecticut Dep't of Educ., Charter School Application Form 1996, at I
(on file with the Yale Law Journal) (hereinafter Charter School Application
Form).
196. See Peyser, supra note 1, at 629. School-based or site-based management
(SBM) is designed to promote bottom-up change. It empowers teachers to assume
responsibilities previously held by school principals or central office
administrators. It involves teachers in selecting staff, controlling budgets,
developing curriculum and teaching methodologies, and discussing conduct codes
and issues of discipline. See generally Colloquy, Site-Based Management: Making
It Work, 53 EDUC. LEADERSHIP 4 (Dec. 1995/Jan. 1996).
197. See Thomas R. Guskey & Kent D. Peterson, The Road to Classroom Change,
53 EDUC. LEADERSHIP 10 (Dec. 1995/Jan. 1996).
Footnote:
198. Arthur J. Ellis, Charter Schools Redefining Future of Public Education,
ROCKY MTN. NEWS, June 9, 1994, at 50A.
199. See COMER, supra note 92, at 47-54.
200. Angela Smith describes choice advocates as falling within three
categories: those interested in educational reform; those who advocate plans to
advance social policy, usually racial balance and equality of education
opportunity; and those who recognize that broader choice implicitly recognizes
the wide ranges of interest and needs among those who otherwise comprise a
heterogenous population. See Smith, supra note 41, at 256-57.
Footnote:
201. See NATIONAL SURVEY, supra note 43, at IV (noting that only one-half of
states enacting charter laws discuss collective bargaining in their
legislation). Many teachers unions oppose charter schools, as well as other
choice programs:
The loudest critics of choice are the teachers unions and school district
administrators, who together with school committees and university education
departments comprise the core of the education establishment. The most obvious
reason for their resistance to actually implementing parental choice is that
they have a vested interest in the status quo. Public school systems have a
virtual monopoly on elementary and secondary education in this country, and like
all monopolists they want to protect their franchise. Peyser, supra note 1, at
622.
Footnote:
202. See Paul W. Grimes & Charles A. Register, Teachers Union and Black
Students' Scores on College Entrance Exams, 30 INDUs. REL. 492, 493 (1991).
203. See Jonathan B. Cleveland, School Choice: American Elementary and
Secondary Education Enter the "Adapt or Die" Environment of a Competitive
Marketplace, 29 J. MARSHALL L. REV. 75, 95 (1995) (stating that "(s)chool reform
re-emerged during the 1980s as an issue demanding national attention"); Michael
Heise, Goals 2000: Educate America Act: The Federalization and Legalization of
Educational Policy, 63 FORDHAM L. REV. 345, 363 (1994) (describing "dramatic
increase in state educational reform initiatives" in 1980s). Further, Peyser has
noted that choice offers the opportunity to help liberate education from the
clutches of politics by shifting power to parents and individual schools at the
expense of school committees and local school departments. In so doing,
schools will be able to establish curricula that develop character and a moral
sense, without having to compromise with every disgruntled parent and fearful
politician. Rather than take their case to the school committee, parents who do
not like the values of a particular school will be able to leave for another
school more to their liking.
Footnote:
Peyser, supra note lb at b24-zz.
204. See Introduction to Materials Presented at Charter School Developers
Conference, Columbia University Teachers College, Jan. 1618, 1997, at 21 (on
file with the Yale Law Journal).
205. Legislation differs from state to state on the issue of autonomy. In
some states, the local school board has some control over granting charters and
may be the final or at least negotiating authority for the charter school
budget. This is generally thought to be a prescription for disaster. School
boards who have long been in charge of public education have a conflict of
interest that is difficult to ignore. Research demonstrates that "the needs of
teachers and principals for control over their jobs most often take precedence
over the needs of individual children and their families, (thus resource
allocation has) more to do with the equitability of adult working conditions
than with the production of responsive learning environments for children."
SCHEERENS, supra note 158, at 17 (internal quotation marks omitted). 206. See,
e.g., Conn. Pub. Act 96-214 5(bS(c), 1996 Conn. Legis. Serv. 660, 663 (West)
(amended by Conn. Pub. Act 96-244 56-57, 1996 Conn. Legis. Serv. 787, 817-18
(West)). One Michigan Court
Footnote:
struck down as unconstitutional the state's original charter school
legislation, holding that the Michigan State Board of Education had violated a
ban on public funding of private schools. See Peter 1. Perla, The Colorado
Charter Schools Act and the Potential for Unconstitutional Applications Under
Article IX, Section IS of the State Constitution, 67 U. COLO. L. REV. 171, 172
(1996) (noting that subsequent legislation decreased charter school autonomy by
subjecting them to greater regulation). 207. See CHARTER SURVEY, supra note 188,
at 1.
208. See Charter School Application Form, supra note 195, at 12-18; see also
NATIONAL SURVEY, supra note 43, at III-2, III-3.
209. See CHARTER SURVEY, supra note 188, at 1; see also NATIONAL SURVEY,
supra note 43, at Vl-V-3.
210. See generally John E. Cawthorne, Charter Schools and School Vouchers: A
Measured Approach (1997) (unpublished manuscript, on file with the Yale Law
Journal). Cawthorne is the Vice President for Education at the National Urban
League. He notes the following problems with Charter schools: They serve only a
small number of students, they do not always serve the needs of the parents and
community, and some schools are rumored to discourage applications from children
with special needs. See id. Similarly, teachers union officials predict that
school choice of the nature envisioned under the charter school movement will
ultimately drain public schools of talented students and staff and force them to
educate only the kids that no one else wants. See Abramo Ottolenghi, School
Choice: Parental Empowerment, or Sabotage of Public Schools?, COLUMBUS DISPATCH,
Sept. 14, 1994, at 9A. School districts will be left to fight for funds to run
costly special needs programs for learning disabled, physically
Footnote:
challenged, and emotionally disturbed children. See id. However, there is
nothing to preclude the establishment of school choice programs that benefit
only a certain class of children. For example, plaintiffs in a class action
lawsuit asked the defending chool district to make private tuition vouchers
available solely to black children who are not receiving the desegregated
education to which they are entitled. See Beck, supra note 32, at 1031 (citing
Rivarde v. Missouri, 930 F.2d 641 (8th Cir. 1991)). Likewise, one
grant
program was designed to address the "severe social and economic problems that
often follow adolescent pregnancies." William D. Anderson, Jr., Note, Religious
Groups in the Educational Marketplace: Applying tile Establishment Clause to
School Privatization Programs, 82 GEO. L.J. 1869, 1877 (1994).
211. See, e.g., Leviton & Joseph, supra note 10, at 1142 (describing failure
to implement programs that work).
212. See CHARTER SURVEY, supra note 188, at 1; NATIONAL SURVEY, supra note
43, at III-2-III-14 (describing various charter statutes that condition renewal
of charter on reapplication, and provide for denial of renewal for failure to
fulfill required conditions, failure to meet educational objectives, failure to
observe sound fiscal practices, violations of law, or other good cause).
Footnote:
213. See supra notes 188-93 and accompanying text. 214. WILSON, supra note
39, at 3.
215. Kevin Banasik, Book Review, 31 HARV. J. LEGIS. 519, 523 (1993)
(reviewing COOKSON, supra note 10) (summarizing Cookson's argument).
Footnote:
216. See Leviton & Joseph, supra note 10, at 1139-41. 217. WILSON, supra note
39, at 65.