Color-blind vs. Color-defined Educational Opportunity Laura McNeal, J.D., Ph.D. Assistant Professor, Georgia State University Laura McNeal, J.D., Ph.D. Assistant Professor, Georgia State University

Presentation Outline Historical Context Educational Equity Reform Efforts Recent Case Law Current Legal Landscape Historical Context Educational Equity Reform Efforts Recent Case Law Current Legal Landscape

Current Issues Are voluntary affirmative action goals or quotas to achieve racial balance for teachers or students constitutional? If ethnic minorities want to go to a school in which their group is in the majority, should they have the right to do so? Should selective schools be able to give admissions preferences based on minority status or disadvantage? Are voluntary affirmative action goals or quotas to achieve racial balance for teachers or students constitutional? If ethnic minorities want to go to a school in which their group is in the majority, should they have the right to do so? Should selective schools be able to give admissions preferences based on minority status or disadvantage?

Historical Context Education is perhaps the most important function of state and local government…in these days, it is doubtful that any child may reasonably be expected to succeed in life if he or she is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available on all equal terms (Brown vs. Board of Education, p. 493).

Educational Equity Social justice may be defined as an ideal condition in which all members of a society have the same basic rights, security, opportunities, obligations and social benefits (Black 1991). Achieving equity means individual differences are valued; high expectations are held for all; instruction occurs in inclusive environments; diversity is recognized and appreciated; and discrimination, stereotyping, and bias are not accepted. Social justice may be defined as an ideal condition in which all members of a society have the same basic rights, security, opportunities, obligations and social benefits (Black 1991). Achieving equity means individual differences are valued; high expectations are held for all; instruction occurs in inclusive environments; diversity is recognized and appreciated; and discrimination, stereotyping, and bias are not accepted.

These gaps begin before children arrive at the schoolhouse door..... But, rather than organizing our educational system to ameliorate this problem, we organize it exacerbate the problem.

How? By giving students who arrive with less, less in school, too.

Constitutional Protections Against Discrimination Equal Protection Clause: Requires the government to treat everyone equal. The Equal Protection Clause comes into play when the government classifies individuals for protection, services, or benefits.

Standard of Review for Equal Protection Challenges Applicable Level of Review Strict Scrutiny- If the government classification is based on race or national origin or materially impacts a fundamental right (voting, criminal appeals), courts apply strict scrutiny. This means the law will be validated only Scrutiny- If the government classification is based on race or national origin or materially impacts a fundamental right (voting, criminal appeals), courts apply strict scrutiny. This means the law will be validated only if it is necessary to achieve a compelling governmental interests.

Racial and Ethnic Segregation Plessy v. Ferguson- “Separate but Equal Doctrine” Brown v. Board of Education- Rejected the separate but equal doctrine. Brown II- Court gave primary responsibility to the federal district courts to supervise desegregation efforts, with “deliberate speed.” Brown III-Established that the burden of proof is on school districts to show that it has achieved unitary status.

Segregation Dejure- by law (attendance zones, school district lines) Defacto- as a matter of fact

Court-Order Desegregation Orders When do they expire? Desegregation orders were not meant to operate in perpetuity. The district court decides whether the school system has complied in good faith and has, to the extent possible, eliminated remnants of past discrimination.

School Reform Efforts No Child Left Behind Act Non-Voluntary Integration Plans Voluntary Integration Plans No Child Left Behind Act Non-Voluntary Integration Plans Voluntary Integration Plans

Common Programs-Achieve Diversity Attendance Zones Transfer Policies Magnet Schools Controlled Choice Interdistrict Transfer Programs Attendance Zones Transfer Policies Magnet Schools Controlled Choice Interdistrict Transfer Programs

Recent Caselaw Comfort ex rel. Neumyer v. Lynn School Committee Meredith v. Jefferson County Board of Education Parents Involved in Community Schools v. Seattle School District Comfort ex rel. Neumyer v. Lynn School Committee Meredith v. Jefferson County Board of Education Parents Involved in Community Schools v. Seattle School District

Current Legal Landscape Circuit courts have utilized Grutter’s diversity rationale to uphold race-based assignment plans in K-12 public schools. This past year, the Supreme Court made a decision in two cases that will essentially reshape the Equal Protection landscape in K-12 schools. Circuit courts have utilized Grutter’s diversity rationale to uphold race-based assignment plans in K-12 public schools. This past year, the Supreme Court made a decision in two cases that will essentially reshape the Equal Protection landscape in K-12 schools.