The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Wednesday, May 5, 2010

How the Obama Adminstration is Failing Education
Gail Heriot

    Those who hoped that President Barack Obama would champion the kind of education reform needed to help close the racial achievement gap may have been more optimistic than the evidence warranted, but their hope was not entirely far-fetched.  

    As the nation’s first African-American President, Obama was in a unique position to cast some healthy skepticism upon the use of race-based admissions policies at colleges and universities.  Unlike any President before him, he could speak frankly without fear of being accused of racism and say that affirmative action is not the answer to racial achievement gap in education.  It hasn’t helped to close it, and it isn’t going to.  Even for its supposed beneficiaries, affirmative action probably does more harm than good.

    Moreover as the first Democrat in thirty-two years to be elected President with a majority, indeed a sizable majority, of the popular vote, Obama was in an excellent position to demand cooperation from what may be the greatest obstacle to educational improvement today–the nation’s bloated teachers’ unions.  A weak Democratic President who tried to discipline this powerful Democratic constituency would risk alienating much-needed support; a Republican President would have to face the full force of their slings and arrows.  But a strong and motivated Democrat would have a fighting chance at overcoming their inevitable wrath.   

    Alas, it was not to be.  After more than a year in office, the Obama Administration has amassed a record not of reform, but of culpable misdirection.  Three recent actions tell the story: At the behest of teachers’ unions, Obama himself has signed the death warrant for a cherished Washington, D.C. school choice program.  His Department of Education is currently implementing a much-trumpeted civil rights enforcement plan that will make it more difficult for inner city schools to maintain safe and orderly classrooms.  Meanwhile, his Department of Justice is arguing in federal court not for the elimination of race-based admissions policies, but for their expansion.  None of these is going to do anything to close the racial achievement gap or indeed to improve education for anyone.                 

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    Consider first the tiny but beloved D.C. Opportunity Scholarship Program.   By killing off this education success story, the Obama Administration has proven it can toady up to the teachers’ unions with the best of them.

    The D.C. Opportunity Scholarship Program is or was the District of Columbia’s federally-funded school voucher program, providing $7500 in tuition per year to low-income students to attend private schools.  The overwhelming majority of its beneficiaries are African Americans or Hispanics.  At the height of the program, it allowed over 1,700 students to escape the grasp of D.C.’s dysfunctional public school system and attend quality private schools. 

    If there is any hope that one day racially preferential admissions policies will become a quaint relic of the past, it comes from programs like the D.C. Opportunity Scholarship Program. Careful social science research, led by Dr. Patrick Wolf of the University of Arkansas College of Education and Health Professions, concluded that, after three years of study, students receiving these scholarships had improved reading skills–equivalent to 3.1 additional months of study--relative to their counterparts, who had remained in D.C. government schools.  In other words, bit by bit, the gap was closing.

    Naturally, the teachers’ unions despised the program the same way they do all school choice programs.  American Federation of Teachers President Randi Weingarten has publicly declared school choice to be a non-negotiable issue.  And no wonder: The very existence of public subsidies for private (i.e. non-unionized) schools threatens the monopoly position of the public education bureaucracy.  From the unions’ perspective, the better these programs work, the more they need to be stopped. 

    After the 2008 elections, the teachers’ unions figured the time had come to cash in their electoral successes.  The word went out that the D.C. Scholarship Opportunity Program must be destroyed.  The fact that the program enjoyed the warm support of D.C. Mayor Adrian Fenty and D.C. Public Schools Chancellor Michelle Rhee, both reform-oriented  Democrats, didn’t help.  Neither did the fact that almost 70% of D.C. residents supported the program.  It didn’t even help that the parents whose children had been successful in the lottery for these scholarships felt that at last they were in control of their children’s future.  Buried in the 1000-page spending bill for 2010, was language that closed down the program to new students.  The program was effectively gutted when Obama signed the bill into law in December.

    Three months later, Senator Joseph Lieberman (I-CT), joined by co-sponsors Robert Byrd (D-WV), Susan Collins (R-ME), John Ensign (R-NV),  Dianne Feinstein (D-CA), Jon Kyl (R-AZ), and George Voinovich (R-OH), led a valiant effort to revive the program.   But the Obama Administration was unmoved, except to engage in doublespeak.  Stung by criticism in the Washington Post for Obama’s role in closing down the program, Obama’s  press spokesman disingenuously suggested that the program had been cut because of a decline in participation by students.  On the Senate floor, Senator Voinovich fumed, “Give me a break .... [I]t’s difficult to participate in a program that’s closed to new applicants. Participation levels are down because the Secretary of Education rescinded … more than 200 scholarships to deserving children for the current school year.” 

    Without support from the Obama Administration, the effort was defeated by a vote of 55 to 42.  While a tiny band of hardy Democrats crossed over to vote for the program, the vote was overwhelmingly along party lines.  The Washington Scholarship Fund, which administers the D.C. Opportunity Scholarship Program, announced that it would be closing its doors at the end of the school year.  Like the program it administers, it is the victim of the Obama Administration’s craven submission to the Democratic Party’s single most important source of funds–the teachers’ unions.

                                                                        *    *    *    *    *

    The week before the effort to save the D.C. Opportunity Scholarship Program went down in flames,  Secretary of Education Arne Duncan stood on the Edmund Pettus Bridge in Selma, Alabama.  The occasion was the forty-fifth anniversary of the bloody confrontation between peaceful civil rights demonstrators and state and local police.  There he delivered an emotional address in which he declared that the previous administration had been guilty of a lack of vigilance in combating discrimination and promised that he would “reinvigorate civil rights enforcement.”

    The emotion that Duncan felt was understandable in view of the site of his speech.  But Duncan’s words had  the ring of a general rallying his troops to fight the last war.  His strategy–-a frontal attack on hidden race discrimination–-bears little relation to the problems schools, especially schools that primarily serve minority children, actually face.  Instead of promising to cut through the layers and layers of bureaucracy that smother innovative schools and teachers at all levels, he promised to use that already-swollen bureaucracy to root out subtle discrimination in every nook and cranny of the school system.  Under his leadership, the Department of Education will be conducting “compliance reviews” and issuing “a series of guidance letters to school districts and postsecondary institutions that will address issues of fairness and equity.”

    Disciplinary actions will be a special concern.  According to Duncan, “African-American students without disabilities are more than three times as likely to be expelled as their white peers” and  “African-American students with disabilities are over twice as likely to be expelled or suspended as their white counterparts.”   His plan is to keep schools under strict surveillance:

    We will review whether districts and schools are disciplining students without regard to skin color. We will collect and monitor data on equity.

    The danger should be obvious: What if the most important reason African-American students are being disciplined more often than white or Asian students is that more African American students need to be disciplined?  It bears noting that in 2006, 70.7% of all births to non-Hispanic African-American mothers were out of wedlock.  The corresponding figure for American Indians is 64.6%.  For Hispanics it is 49.9%, and for non-Hispanic whites it is 26.6%.  Asians/Pacific Islanders have the lowest out-of-wedlock birth rate at 16.5%.

    The absence of a father in the home has long been associated with higher discipline problems in children.  It would be remarkable if African Americans were uniquely immune to this phenomenon.  Given the higher rate of fatherlessness in African-American households, one has to expect higher numbers of discipline problems.  No one is happy when schools must substitute for two-parent households.  But it beats the alternative.

    The problem with Secretary Duncan’s strategy isn’t that race discrimination in discipline doesn’t exist at all.  Somewhere there are surely African-American students who have been punished more harshly than they deserve on account of their race, just as somewhere there are American-Indian, Asian-American, Hispanic or white students who have suffered on account of theirs.  But federal enforcement procedures are incapable of making the fine case-by-case distinctions that are often necessary to eliminate the problem.  Heavy-handed bureaucratic enforcement procedures will lead only to heavy-handed bureaucratic responses from school districts.  Each time a student is to be disciplined for misconduct, more forms will have to be filled out.  More school officials will have to approve each disciplinary decision.  The process will become more unwieldy.  The inevitable result will be less classroom discipline.

    No one should imagine that will be a victory for African-American students struggling their way through inner city schools.  To the contrary, it will be a serious loss.  No one learns in a disorderly classroom.  Students who fear violence at school cannot flourish.  There are millions of bright children from disadvantaged backgrounds of every kind who are hoping that a good education will be their ticket to a better life.  Some of them will make it; some of them won’t.  But by making it harder for teachers to control their disruptive classmates, the Obama Administration is making it harder for these students striving for a good education.

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    A cynic might argue that as a result of actions like these, more affirmative action  will be needed.  How else to paper over our educational failures?  But whether racial preferences are needed or not, the Obama Department of Justice is keen to support those who seek to expand them. 

    The latest case is Fisher v. University of Texas, in which two young white women, Abigail Fisher and Rachel Michalewicz, argue that the University’s diversity policy–one of the more aggressive in the nation-- violates their right to equal protection.  In it, the Department of Justice, led by Assistant Secretary for Civil Rights Thomas Perez,  stands shoulder-to-shoulder with the University of Texas.  If they succeed in convincing the United States Court of Appeals for the Fifth Circuit of the Texas plan’s legality, officially-sanctioned race discrimination on campus could expand significantly.

    The argument of the University and the Administration as amicus curiae is essentially this:  Seven years ago, in the twin affirmative action cases of Grutter v. Bollinger and Gratz v. Bollinger, the Supreme Court drew a distinction between the racially-discriminatory admissions policy of the University of Michigan Law School (Grutter) and that of the University of Michigan College of Literature, Science and the Arts (Gratz).  The latter was held unconstitutional while the former was not.  The Texas plan is like that in Grutter–or so their argument runs.

    I would be less-than-candid if I did not admit that I believe the Grutter case was wrongly decided and that both policies should have been held unconstitutional.  But it doesn’t matter one whit.  In fact, the Texas policy at issue is like neither Grutter nor Gratz; it is simply a different animal. 

    Both Michigan cases were about getting a “critical mass” of minority students–in other words a sufficient number of minority students to prevent them from feeling isolated on campus.  Indeed, the term “critical mass” appears fifteen times in the majority opinion–and over forty times in the dissents. 

    The University of Michigan argued that if it couldn’t admit African-American, American-Indian and Hispanic applicants over Asian-American and white applicants, despite wide gaps in their academic credentials, it would be able to enroll few, if any, students in those categories.  In order to secure for all students what it asserted were the “educational benefits of a diverse student body,” it asked the Court to carve out a limited exception to the Fourteenth Amendment’s ban on race discrimination for colleges and universities seeking to enroll a critical mass of minority students.  A bare majority on the Court agreed to do so, but only if flexible selection procedures like those supposedly present in the Grutter case, but not in Gratz, were used.

    Grutter represents the single exception to the Fourteenth Amendment for racially discriminatory admissions policies.  Other arguments have been made and rejected in Regents of the University of California v. Bakke.

    It was never clear in the Grutter litigation at what point “critical mass” is reached.  Some witnesses for the University had stated that 5% was too low; some stated that 10% might be enough. But no one ever suggested that critical mass is an open-ended concept that could be used to mean whatever a particular college or university wanted it to mean.  Indeed, no one claimed  that racially preferential admissions policies could be used to increase the number of minority students at a school where they already constitute more than 20% of the student body.  This is not to say that the Grutter Court would have considered it undesirable for more than 20% of particular school’s students to be from minorities.  At the University of California at Berkeley, for example, whites constitute only 30% of undergraduate students.  The rest of the class is 4% African American, 42% Asian American and 12% Hispanic.  The point is simply that Grutter did not authorize racially discriminatory admissions policies to get there.  They are supposed to be a last resort in a case in which the alternative is few, if any, minority admissions.

    The problem in Fisher is that the University of Texas is not simply attempting to attract a “critical mass” of minority students.  Under almost any definition, Texas already has “critical mass”–a student body that is over 21% under-represented minority (16.9% Hispanic and 4.5% African American).   And it got there using racially-neutral criteria adopted more than a decade ago in response to a pre-Grutter court decision that held Texas’ previous affirmative action policy unconstitutional.  The limited exception at issue in Grutter therefore does not apply.

    Under the view of Grutter argued for by the University of Texas and the Obama Administration, on the other hand, the critical mass requirement would be essentially read out of the case:  Critical mass is whatever a university wants it to be–up until it reaches the point of proportional representation, which in Texas’ case would be at a point that at which African Americans and Hispanics together are 48.4%.  That can’t be what the Supreme Court meant by “critical mass.” 

    So far, using race preferences, Texas has raised the proportion of African Americans and Hispanics to 25% of the class?  But why not  30%?  Or 45%?  At what point does it become obvious that the University of Texas is not concerned with preventing feelings of isolation but with achieving proportional representation–a clearly prohibited goal?  On this, the Obama Administration has nothing to say.

    The good news, of course,  is that the Fisher case will give the Supreme Court the opportunity to re-examine and clarify its Grutter decision.  Here’s hoping that they take that opportunity.

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Comments

The Effendi in a unique position to cast some healty scepticism upon race-based admissions policies? Whiskey-Tango-Foxtrot! I don't wish to be disrespectful by doing something like ashing if you are on drugs, so let me put it this way,: "Are you on drugs, SIR?"

Obama is in less of a positiion to do this than every other human being on the planet, for he has ridden the soft bigotry of lowered expectations farther than anyone else in human history.

By way of further contrition, let me say that I concur with your analysis of Gutter. The "diversity" argument is rotten to the core, for it opens the door to Nurenburg laws in perpetuity, cutting AA loose form being a remedy for past discrimination, and making it a quota, not much different from a quota for Aryans in the University of Berlin.

Posted by: Lou Gots | May 5, 2010 10:52:03 AM

"to close the racial achievement gap...": there used to be such a gap in Britain - the Roman Catholic schools, which were effectively Irish schools, were feeble compared to the others. But once the Forces of Progress had mucked up the others, the Irish schools - being very conservative - shone. So what you need in the US is that inner city schools full of black children adopt old fashioned ways - they'll surge ahead.

Posted by: dearieme | May 5, 2010 12:30:44 PM

Very fine summary of the situation in DC. Two points to add: the Washington Scholarship Fund also provides scholarships with private funds, and did so long before the DCOSP was created. Why WSF is also giving up on that is incomprehensible, since no government action can stop them.

Further, while Lieberman, Collins et al. did make a strong effort on behalf of DCOSP, they missed their main chance to win. Last December Congress canceled Opportunity Scholarships as part of its omnibus appropriations, and no one really fought it--Lieberman and Collins even voted for the omnibus bill. That's when they could have had real leverage, by holding up the appropriations bill.

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thank you for your post!

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