Discrimination in education: some thoughts on American law and experience

10 September 1998

John Vail¹

Students in American public schools have experienced blatant and subtle discrimination on the basis of race, color, national origin, gender, and disability. Legal remedies have evolved, some effective, some not. I will try to distil the American experience in a way that advocates elsewhere can reflect on, perhaps finding lessons useful to them in their advocacy. I hope this article will be useful for any education advocate, lawyer or non-lawyer. It does not go into detail about legal doctrine, but it gives information about relevant laws so that a reader can find more materials easily.

Discrimination in public education is an evil that needs to be ended. Always remember, however, that non-discrimination is not a sufficient end. Winning an equal right to a lousy education is a hollow victory. You must also win the right to a high quality education. Parents and students want - and need - equity and quality.

The structure of public education in the United States

Free, universal public education is the rule in the United States, but not as a matter of federal law. In few other areas is it so obvious that America is a nation of fifty states, each of which retains sovereign authority to regulate affairs not specifically placed by the U.S. Constitution within the power of the federal government. Most law regarding how public schools are structured, what is taught, and how it is taught, originates in the states. So does most funding. Only about 7% of the one trillion US dollars America spends annually on primary and secondary public education comes from the federal government.

Certain practices vary little enough from state to state, however, so that we can make some useful generalisations. Students are usually required to attend school between the ages of five and sixteen (kindergarten through 10th grade). Free public schools are provided for grades K-12. Parents may choose to send their children to private religious or non-sectarian schools, or to school them at home, but not at the expense of the state.

Grades K through 5 or 6 are considered the primary school years and grades 9 or 10 through 12 the high school years. In between these years, most students attend either middle schools (6-8) or junior high schools (7-9); many still attend K-8 schools. Most American students will attend a primary school, a middle school or a junior high school, and a high school before departing from the free public education system at grade 12 (age 18) with a high school diploma.

The United States has an extensive system of public and private higher education. Access to four-year colleges is usually competitive, based on academic record and results of standardised tests. Access to two-year, or community, colleges is most often open to all. Costs vary widely, from a few hundred dollars per year to thirty thousand dollars per year at elite institutions.

American law regarding non-discrimination in education

I noted that states have and exercise primary power regarding education practices. When the federal government has power to do something, however, that power is superior to that of the states. The federal government has exercised power to prohibit the states from discriminating in public education.

The U.S. Constitution itself, and several statutes, prohibit discrimination on the basis of race, color, national origin, disability, and sex. These statutes usually provide a right for aggrieved persons to sue in civil courts and often provide a right to receive damages besides a right to injunctive relief.

The Constitution and Section 1983. The Civil War, a bloody and bitter conflict fought in large part over the institution of slavery, led to passage of the Fourteenth Amendment to the U.S. Constitution. It prohibits states from denying equal protection of the laws to any person. It creates a federal right to non-discrimination. A federal statute also passed after the Civil War, 42 U.S.C. Section 1983, is a primary vehicle for enforcing the Fourteenth Amendment. Section 1983 allows any person who has been deprived, by a state entity, of a federally secured right, to sue for injunctive relief and often for damages.

Such suits can be initiated quite easily, but effectively they require skilled counsel, and significant costs of litigation (depositions, expert witness fees), to be successful. Attorney fees and costs can be paid by a defendant if the plaintiff prevails, pursuant to another statute, 42 U.S.C. Section 1988, but the courts have made it hard to pursue and collect reasonable fees. The practical result is that relatively few attorneys in private practice are willing to accept cases regarding discrimination in education without prepayment of fees by prospective clients, few of whom have enough money to do this. Such suits are more likely to be brought with the assistance of national organizations, such as the National Association for the Advancement of Colored People (NAACP), Legal Defense and Education Fund, the Mexican American Legal Defense and Education Fund (MALDEF), the American Civil Liberties Union (ACLU), or by a dwindling number of legal aid attorneys. The quick availability of costs of litigation and payment for attorneys (or the availability of staff attorneys at organizations existing for these purposes) are keys to getting these suits into court.

The most famous education case decided by the Supreme Court, Brown v. Board of Education, was brought under Section 1983 to enforce the Fourteenth Amendment. So was Plyler v. Doe, which requires states to educate students who reside in the States, regardless of whether the students are citizens of the United States or whether the students are even legally present in the country.

The Fourteenth Amendment does not specifically address discrimination on a particular basis (such as race). Any time a state treats groups of persons differently the amendment potentially comes into play. In simplified form, a case will be analysed like this: If the state treats groups differently, it generally must show only a rational basis to justify the difference in treatment. Most statutes are found to have a rational basis. For example, if a state passes a statute that says people cannot practice medicine without a degree from a medical school, the statute treats two groups - those with a medical degree and those without - differently. The difference, though, has a rational basis: the legislature is entitled to find that persons with medical degrees are qualified to practice medicine in a way that people without medical degrees are not. The courts will uphold such a classification because it has a rational basis, even though the implicit assumption might not always be true: some persons who do not have medical degrees might actually make fine physicians, and will suffer discrimination under the statute, but that discrimination will not be found unconstitutional.

If the state invokes a suspect classification (race, illegitimacy) or treats people differently because they exercise a fundamental right (freedom of expression), disparate treatment will not be allowed unless there is a compelling state interest. Very few state interests are found compelling.

Let us again illustrate the point with examples. If the state permitted members of the Republican Party to put up campaign signs on the lawn of the state legislature, but prohibited members of the Democratic Party from doing the same thing, the legislature would be discriminating against one group on the basis of that group's viewpoint, a fundamental right protected by the First Amendment. The discrimination would be found unconstitutional. The state could not show a compelling interest for the different treatment.

Similarly, if the state allowed white people to use public toilets and drinking fountains, but not people of color (a practice that was common throughout the South until only several decades ago), the state would discriminate on the basis of race. It would be required to show a compelling state interest to justify such discrimination, and it could not.

Some classifications are not suspect (gender, perhaps mental disability) and are not entitled to strict scrutiny, but the state must show a heightened interest to justify disparate treatment. For example, in recent cases involving education at state-sponsored military colleges, the colleges in part justified their policies of not admitting women on the rigorous physical training the colleges required. It is at least rational to require future military officers to meet rigorous physical standards. The courts were not satisfied, however, with a showing of a rational basis for a distinction based on gender. They noted that at least some women would meet the standards, therefore the standards could not justify a complete ban on the admission of women. While not giving the strict scrutiny they would to a distinction based on race, the courts also looked closely at the standards themselves, and said that in certain circumstances they must bend so that women who met the core qualifications could attend the institutions.

Race, color, and national origin The Civil Rights Era of the 1950s and 60s gave rise to the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, or national origin. Title VI, 42 U.S.C. Section 2000d, prohibits discrimination in federally funded programs. Virtually all public schools receive federal funds. The Civil Rights Act can be enforced by the U.S. Department of Justice, by the Office of Civil Rights of the U.S. Department of Education, and by private litigants.

Individual victims of discrimination, on behalf of themselves or themselves and persons similarly situated (a class), can file a complaint with the Office of Civil Rights (OCR) of the U.S. Department of Education. This is a simple procedure, requiring that a person fill out and sign one easy to comprehend form.

Regrettably, however, OCR is grossly underfunded and cannot respond promptly or effectively to all complaints. While having this kind of publicly supported enforcement mechanism is highly desirable, advocates must be ever vigilant regarding how well it functions. The existence of such a mechanism can provide political cover for members of Congress who actually are hostile to enforcement of civil rights laws: they can say they support the existence of the mechanism, but they assure that the mechanism is ineffective by failing to fund it adequately.

Victims can also bring private suits for injunctive relief and, in some cases, damages. The discussion of private suits under Section 1983 applies here and to Title IX (below).

Language Title VI has been found to prohibit discrimination based on language spoken. In Lau v. Nichols the Supreme Court found that Title VI was violated when Chinese-speaking students were taught the same curriculum, in English, as English speaking students. This was found to be discrimination on the basis of national origin. Congress subsequently passed a statute, the Equal Education Opportunities Act, which requires schools to take affirmative steps to assure that non-English speakers are educated in Anglophone schools (See 20 U.S.C. Section 1703).

Neither statute requires that students be educated in the language that they speak at home or that education be sensitive to the culture of a student. They do require that non-English speaking students have the same opportunity to succeed as their English-speaking peers. The Lau case still stands for the fundamentally important legal proposition that the same treatment of students with unequal needs is not equal treatment for purposes of Title VI.

Disability A shameful history of segregating students with disabilities in special schools that taught them little and left them without experience in dealing with the majority world led to passage of the Education for All Children with Handicaps Act (EACHA) in 1975, now known as Individuals with Disabilities Education Act (IDEA). IDEA provides significant funding to schools and requires, as a condition of the receipt of this funding, that schools provide a free, appropriate public education in the least restrictive environment. IDEA, while prohibiting discrimination, also requires special services tailored to the individual needs of the student. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794, and the Americans with Disabilities Act also prohibit discrimination on the basis of disability. Each of these statutes can be enforced by private civil actions, similar to the way Title VI can be enforced.

Gender The rising women's movement provided the political will for Congress to pass Title IX of the Education Amendments of 1972, 20 U.S.C. Section 1681. Title IX prohibits discrimination on the basis of sex and can be enforced by the Office of Civil Rights and by private suit.

Socioeconomic status American law is, generally, unreceptive to claims of discrimination based on socioeconomic status. In Rodriguez v. San Antonio Independent School District, the Supreme Court declined to find a violation of Section 1983 and the Fourteenth Amendment when students were discriminated against because they were poor.

Although discrimination on this basis is not necessarily barred by law, many federal and state statutes target extra (although most often still inadequate) funding to poor students. Title I of the Elementary and Secondary Education Act, 20 U.S.C. Section 6301 et seq., is a good example. The statute begins with a catalogue of what we know, through research, about good educational practices in America. It is well worth the time to read.

State law Many states have constitutional provisions and statutes that are analogues of federal law. They can, however, provide remedies in addition to those provided under federal law, and I mention this as a reminder that it is always useful to look at local law. More cases will be decided on the basis of local law in local courts than will be decided on the basis of international conventions at Strasbourg. This lesson is best driven home by numerous decisions of American state courts, over the last decade, requiring states to provide increased funding for public schools. These cases rely on state law, most often state constitutions, to find an affirmative duty to provide education that is of some certain quality.

Experience with the law Despite the protections described, African-American and Hispanic students continue to have less success than majority students in American schools. They fail to finish high school at disproportionately high rates and their representation in higher education is low relative to their representation in the population as a whole. Why this is so, and whether the law entitles these students to something better, remains hotly debated within the United States.

Intent versus effect

The debate centers around intent versus effect and on whether the law provides a remedy for the current effects of past discrimination. In developing constitutional jurisprudence under the Fourteenth Amendment, the Supreme Court has said that intent matters. The Court has made clear that the generalised discrimination we know to exist in America does not count. In a given case, there must be explicit proof of intentional discrimination against the party before the court.

The era of pervasive, blatant state discrimination on the basis of race in American schools is past. Heinous episodes of public discrimination persist, but they are not the rule. When such cases occur the Fourteenth Amendment and Section 1983 provide a remedy. Those laws, however, are more difficult to use in attacking the more subtle forms of discrimination that persist.

A new fondness for testing illustrates this more subtle discrimination. America is seeing states impose many new testing requirements on students, often making passage of the tests a prerequisite to further educational benefits or credentials, such as diplomas. African-Americans often fare less well on these tests than their majority counterparts. Should the tests be barred? A cluster of questions is raised here: Are the tests valid? Are they reliable? Are African-Americans systematically given fewer opportunities to learn the material taught by the tests? If they are, does it matter whether that lesser opportunity is a result of their race or their socioeconomic status? Is lower socioeconomic status itself a result of past racial discrimination, which the state should be obliged to remedy?

Under Title VI, effect still matters. In a fractious decision, Guardians Association v. Civil Service Commission, the Supreme Court found that Title VI itself will not be violated unless intent is shown, but that a regulation, promulgated by the U.S. Department of Education to implement Title VI, is violated by discriminatory effect. Advocates in the United States expect a new wave of litigation challenging this effective discrimination. They also worry about how the courts might read Title VI and its implementing regulation narrowly in light of recent Constitutional decisions.

Does money matter?

Much advocacy in Congress and before state legislatures, and much litigation in state and federal courts, seeks additional funding directing towards students who have been disfavoured. In many cases money has not solved their problems. The desegregation of the Kansas City public schools is a glaringly sad example. Large amounts of money, ordered by a court to be spent to improve physical facilities, provide remedial courses, and improve the kinds of courses offered in segregated schools, have not brought about significant improvements in student achievement.

Research shows that money does matter, but how it is spent matters at least as much. There is consensus among advocates and practitioners in America that piecemeal reform, focusing on remedial programs, does not work well. Poor and minority students make the biggest gains, and perform on a par with their wealthier and majority peers, when they attend schools that attempt to educate all students well. These schools set high expectations for all students, clearly defining what students are expected to know and be able to do. These schools employ highly skilled teachers who use teaching methods that involve students in creating their own knowledge.

Schools that achieve quality and equity use assessment mechanisms that allow teachers, parents, and students to tell whether the students are mastering the curriculum. These are called "authentic assessments", and they differ from norm-referenced tests. Their purpose is to assess the progress of the student toward achieving certain goals. The purpose of norm-referenced tests is to compare students to other students. In America, we are obsessed with making comparisons. Often it seems more important for us to know that our students are doing better than some other students than it does to know that none of the students is doing very well.

Importantly, these schools have parents - parents of all students - as partners in making important decisions about the school, such as designing the curriculum and helping to hire staff. Parents are the most important teachers students have, and when they are closely involved with important decisions at school they help hold the school accountable for good performance.

Concluding thoughts

Americans are abuzz about the condition of public education. Research shows that much is good about public education in America, and that the brunt of the most severe problems in public education is borne by poor and minority students in inner cities and in very rural areas. Nevertheless, many people - probably a majority of the population - are worried about whether their children will get an education that prepares them for rapidly changing job markets. This creates opportunities for advocates to create political coalitions of majority and minority people who share the same concern: quality public education. The most creative advocates are doing this by taking advantage of two important truths: the educational practices that work best for wealthier and ethnic majority children are, by and large, the educational practices that work best for poor and minority children; and, wealthy and majority children, as a whole, achieve more when they attend schools in which poor and minority children also achieve to high levels. Good schools educate all students well, and students learn more in good schools than they do in bad schools. Equity and quality are intertwined. One education official put it this way: "You can't have islands of excellence in a sea of mediocrity."

Enforcing rights to non-discrimination always will threaten racists, and always will threaten the penny-pinchers who decry spending public money on anything. But they need not threaten, and they should attract, the average person whose main concern is whether their own children will get what they need from public schools. Their children will do better in a school that pays attention to the individual needs of all students and assures that all students learn.

Although the world is not short of racists or penny-pinchers, it is my firm belief - characteristically American, and certainly not true in every locality - that they do not constitute a majority, or anywhere near one. Advocacy to end discrimination always should be coupled with advocacy to yield quality. At its best it will reach out to that large group of wealthier and majority parents who care about their children, seeking to enlist them as political allies. Educationally and otherwise, the American experience suggests that the success of children of this priviliged group is tied to the success of children from minority groups.

Endnote:

1. John Vail is currently Associate General Counsel for Constitutional Litigation with the Association of Trial Lawyers of America (ATLA). He was formerly a staff attorney with the Center for Law and Education, a national education advocacy group in Washington, DC, and has eighteen years of experience as a legal aid lawyer. In 1995 he worked with the Centre for the Defence of Human Rights in Budapest.