Wednesday, April 25, 2018

Education: Other

Education and the Myth of Black Anti-Intellectualism

Tim Wise


Not-So-Little White Lies: Education and the Myth of Black Anti-Intellectualism, ZNet Daily Commentaries,  (November 26, 2002)

Cherished myths die hard, especially when those myths serve the interests of the more powerful members of a society at the expense of the less powerful. For generations, slaveowners ignored their chattels� humanity, to say nothing of their desire for freedom, even coming up with a name for the presumed mental illness that �explained� the urge on the part of their property to run away. Drapetomania, it was called: a powerful disorder that afflicted the brains of slaves, rendering them incapable of recognizing how good they had it.

The subordination of persons of color has regularly been rationalized with absurd racist stereotypes, even when evidence flatly contradicted the illogic of those assumptions. So, for example, segregation was needed to allow blacks to develop to the �limit of their capacities,� and to hear some tell it, blacks actually preferred separate schools, housing, water fountains, and lunch counters. Japanese Americans had to be interned for �national security� purposes because they were disloyal to America. Filipinos were incapable of self-government; Hawaiians were heathens in need of Christian discipline, and so on and so forth.

It mattered little, of course, that persons of color were actually quite loyal to the U.S. (indeed, more so than probably justified); or that non-white nations had long exercised self-government before being �discovered� by Europeans. And the myths would linger even after social movements forced changes in the society that had nurtured them. Although the more extreme versions of these beliefs are less often heard than in years past, newer variations are common: so instead of claims that blacks are a separate species or genetically inferior (which of course are still articulated, as with best-selling books like The Bell Curve), new and more palatable claims of cultural inferiority have come to predominate.

According to those pushing this type of analysis, it is not that blacks and other people of color have defective DNA, but rather, that their families are dysfunctional, their values counterproductive and their behaviors pathological.

Starting with Daniel Patrick Moynihan�s 1965 treatise on the �crisis� of the black family�which he characterized as a metastasizing matriarchal mass of antisocial tendencies�and extending through Dinesh D�Souza�s argument that blacks suffer a �civilizational deficit� relative to whites and Asians, dissing black culture and families has become a favorite political pastime. And as with genetic theories of racial superiority, the cultural theories hang on, impervious to logic or hard data.

Take, for instance, the oft-repeated claim by conservatives that lower black achievement in schools reflects the lower value placed on education by the black community, compared to whites or Asians.

Denying that racial discrimination might be implicated in different educational outcomes between African Americans and others, such commentators insist that different cultural attachments to education explain why whites and Asians score higher on achievement tests, tend to get higher grades, and are more likely to go on to college than their black counterparts. Some claim that blacks have adopted the attitude that doing well in school is �acting white,� and have sabotaged their own futures by way of downgrading intellectual pursuits.

Black families come in for special condemnation under such an analysis, criticized for not reinforcing the educational work done in the classroom, and thereby undercutting whatever success teachers might otherwise have in educating their children.

But although the right would have us believe that black underperformance in school is due to cultural value differences, the evidence suggests that such an excuse is flimsy at best. While D�Souza insists that black students do worse in school because they do less homework on average than whites and Asians, existing data points to a different conclusion.

According to the National Center for Education Statistics, 43% of black fourth-graders do one hour or more of homework per night, as do 45% of whites and 47% of Hispanics. Although Asian fourth-graders are more likely than any other group to study one or more hours per night (56% do so), the differences between whites, blacks and Hispanics are too small to explain performance differences, and certainly contradict the notion that blacks or Latinos devalue education relative to whites.

In fact, black and Hispanic fourth-graders are both more likely than whites that age to do more than one hour of homework, with 18% of Hispanics, 17% of blacks, but only 15% of whites putting in this amount of study time daily. Although Asians demonstrate more study time at this level, the differences between them and other students of color are not substantial: about 21% of Asian students in fourth grade study more than one hour.

There is also no evidence that black parents take less interest in their children�s education, or fail to reinforce the learning that takes place in the classroom once their children are home. Once again, NCES statistics indicate that black children are more likely than whites to often spend time with their parents on homework.

Black students are twice as likely as white students to get help from their parents on homework every day of the school week (twenty percent compared to ten percent), and while roughly half of black students get help from parents on homework at least three times each week, approximately two-thirds of whites get such help two times or less, with whites a third more likely than blacks to work with parents rarely if ever on their homework.

Likewise, and counteringcommonly held class biases, the poorest students (those from families with less than $5,000 in annual income) are actually the most likely to get substantial homework help from their parents, while those from families with incomes of $75,000 or more annually are the least likely to do so. Half of the poorest students work with their parents on lessons three or more times weekly, while only a third of the wealthiest students do.

Likewise, evidence indicates there is no substantial difference between white and black students in terms of whether their parents attend parent-teacher conferences or school meetings. Black parents and their children are also equally likely as their white counterparts to visit a library, art gallery, zoo, aquarium, museum or historic site, as well as a community or religious event�further countering the notion that black parents take less interest in providing educational opportunities for their kids.

Furthermore, and contrary to popular belief, three of four black children are read to by their parents when they are young, and black youth are equally or more likely than whites to be taught letters, numbers and words by their parents between the ages of three and five.

Of all the evidence rebutting the notion that blacks place less value on education than whites, nothing makes the point more clearly than attendance information. Black twelfth graders are more than twice as likely as whites to have perfect attendance (16% versus 7.4%), and are even more likely than Asians to have perfect attendance.

Whites are more likely than blacks to have missed seven or more days during the last semester, while blacks are less likely than members of any racial group to have missed that many days of school. There is also no significant difference between whites, Asians and blacks in terms of their likelihood to skip classes.

Of course, it shouldn�t be necessary to recite any of these statistics to make the point that blacks value education as much as anyone else. The entire history of African Americans has been one of constant struggle to obtain scholarly credentials: from learning to read English even when it was illegal to do so, to establishing their own colleges and universities when white schools blocked their access, to setting up freedom schools in places like Mississippi, with the intention of providing the comprehensive learning opportunities that the state routinely denied to blacks.

Since that time, there have been any number of studies on black youth attitudes towards education, and while there are surely some such youth who sadly de-emphasize scholarly pursuits, there is little or no evidence that this phenomenon is unique to the black community. A recent opinion poll of black youth, ages 11-17, found that the biggest hope for these youth was to go to college, and additional studies have found that black youth value academic success every bit as much as white students and often place an even higher priority on educational achievement than whites.

Despite claims by many on the right that blacks�especially youth�lack a connection to �mainstream values,� evidence contradicts this notion. One mid-1990�s questionnaire of black high school seniors found that black seniors were just as likely as white seniors to say that a good marriage and family life were �extremely important� life goals; 32% more likely than whites to say that professional success and accomplishment were �extremely important� life goals; 26% more likely than whites to say �making a contribution to society� was extremely important; and 75% more likely than whites to say �being a leader in their community� was an extremely important life goal.

Black seniors were also 21% more likely than whites to attend weekly religious services and almost twice as likely as whites to say that religion played a �very important role in their lives.� Considering the right�s call for more religiosity in American life, such figures seem to indicate that blacks are well ahead of others in this regard, and by the standards of conservative moralists, should be considered paragons of virtue.

But in spite of having a comparable base of values, blacks continue to lag behind whites in terms of income, educational accomplishment, and professional success. Even black students from families with $70,000 or more in annual income score lower, on average, on the SAT, than whites from families earning less than $20,000 annually; and blacks from families with $50,000 or more in annual income score lower than whites from families with $6,000 or less in annual earnings.

Since the families from which these black students come are successful under the typical standards of evaluation, they cannot be scoring lower than whites for either genetic or cultural reasons: after all, their parents are �making it,� and are not likely to be the kind of folks claimed to exhibit �pathological underclass� values.

So what is left? Unfortunately for those who would prefer not to admit the salience of institutionalized racism in the U.S., the answer is clear: substantially unequal outcomes are the result of substantially unequal opportunities.

Black students are only half as likely as whites to be placed in high-tracked English or math classes, and 2.4 times more likely than whites to be placed in remedial classes. Even when blacks demonstrate equal ability with their white counterparts, they are less likely to be placed in accelerated classes.

When kids from lower-income families�who are disproportionately of color�correctly answer all math questions on a standardized test, they are no more likely to be placed in advanced or college tracks than children from upper-income families who missed a fourth of the questions, and they are 26% less likely to be placed in advanced tracks than upper-income persons with comparably perfect scores. Even the President of the College Board has acknowledged that black 8th graders with test scores comparable to whites are disproportionately placed in remedial high school classes.

The impact of being tracked low in school has been shown to be profound. One of the nation�s leading experts on tracking, Jeannie Oakes, reports that according to her own studies and those of others, being tracked low fosters reductions in student feelings of their own abilities and helps depress aspirations for the future among low-tracked students.

It is this context that must be considered when evaluating the tendency for some blacks to claim that getting good grades is �acting white.� If one�s schools have repeatedly given the impression that indeed education is a white thing; that the white kids are the bright kids; that everything worth knowing about sprang out of the forehead of white Europe, and that one�s own aspirations are unrealistic, it ought not be surprising that some children exposed to such racist mentalities�and teachers who assume from the outset that not all groups are equally capable of learning�might develop a bad attitude about school. But as with most things, blaming the victims of this process will neither improve their opportunities nor alter the mechanisms by which their disempowerment is perpetuated.

It will, however, continue to offer a pseudo-intellectual lifeline to right-wing pundits whose careers have been built on bashing society�s have-nots.

Tim Wise is an antiracist essayist, lecturer and activist. He can be reached (and footnotes can be obtained from) This email address is being protected from spambots. You need JavaScript enabled to view it.

Not Separate but Not Equal: Education in the United States

Rebecca L. Case

excerpted from: Rebecca L. Case, Not Separate but Not Equal: How Should the United States Address Its International Obligations to Eradicate Racial Discrimination in the Public Education System? , 21 Penn State International Law Review 205-226, 215-226 (Fall 2002) (136 Footnotes)

The United States has confirmed its intention, in several international venues, to address racial discrimination and institutional racism existing within the United States' borders. The United States has attended world conferences and signed several treaties expressing the country's aspirations to eradicate racially discriminatory practices in the education system. The promises the United States has made to the international community currently are only aspirations and goals that the country must still address. The story of Tony illustrates how racial discrimination and institutional racism can still affect children's lives in the United States. The treaties and the conference recommendations present a framework that the United States can use to address the discrepancies of the education system.

Considering the enormous consequences of discriminatory acts toward children in school, the remainder of this comment will address the United States' obligations and promises under the CERD, the CAT, the ICCPR, and the Programme of Action from the World Conference on Racism to eliminate the racially discriminatory practices in the American public education system. This comment will acknowledge where the United States has fulfilled their duties under the treaties and will highlight the areas where the United States has not yet satisfied their treaty obligations. Finally, this comment will recommend solutions based on shadow reports, the general comments to the treaty bodies from the United States, the recommendations made by the treaty body members to the United States, recommendations from the "World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance," and other independent sources that address racial discrimination within the American education system.

A. Improvements in United States' Education System

While the CERD, ICCPR, and CAT have different goals, each treaty addresses the need to protect children, regardless of their ethnic origin in the area of education. The "World Conference on Racism Programme of Action" states the need to ensure equal access to a quality education. The CERD requires every child to have a right to an education. The ICCPR states that children have a right to be protected, irrespective of their skin color. The CAT requires all forms of torture to be eliminated; this includes the severe mental suffering that is associated with discrimination. The CAT also requires that all public officials be taught what torture is and how to prevent torturous acts. The United States has addressed these treaty obligations with some success.

Prior to the ratification of any of the treaties, the United States made a monumental step toward eradicating discrimination in the public education system when the Supreme Court desegregated the country's public schools in the Brown v. Board of Education decision in 1954. Consequently, the American schools are no longer permitted to reject a student solely on the student's ethnic background. Brown v. Board of Education also led to the mandated integration of public schools in historically segregated schools. Post-Brown, schools may have become physically more integrated but more was left to achieve.

The United States continues to make improvements in the area of education and today has created a framework within the federal government to theoretically ensure that any obstacles to an equal education are removed. For instance, the United States Department of Education administers laws and programs aimed to eliminate the racial disparities in the educational system. Recently, the Office for Civil Rights, which operates within the United States Department of Education, has broadened its responsibilities from simply administering laws, to now monitoring activities in the educational system, enforcing desegregation plans, issuing policies to help educators meet civil rights requirements, administering studies to review the system's compliance with civil rights laws, and investigating civil rights complaints.

The Office of Civil Rights has further broadened its focus on monitoring school districts by examining the more complex and subtle issues that underlie unequal access to programs that students may encounter. For example, the Office of Civil Rights has moved from focusing solely upon school districts and colleges that are openly segregated toward ensuring that there are no racial barriers for students who apply or participate in various educational programs and services. In addition to what the Office of Civil Rights already investigates, the office has also expanded the method of investigating civil rights complaints by utilizing non-adversarial dispute resolution methods to assist all parties to reach workable solutions for all involved.

The United States has made efforts to educate the public officials regarding torture, but due to the United States' unique definitions of torture and public officials, the extent to which the United States must educate their school officials is limited. While the government provides a formal education to all individuals who will be involved in the treatment of persons who are arrested, detained, or imprisoned, the United States does not include school officials in this list of officials. Although educational information on torture is not specifically directed toward school educators, the school officials and the general public may access the information through the United States Department of State web page. However, it is apparent that the United States does not intend to ensure that public school officials understand their obligation to prevent torture in the school system.

B. United States' Deficiencies Under International Treaties

The United States claims that "the American public educational system is open and accessible to all, regardless of race, ethnicity, immigration status, or socio-economic status," and yet the academic achievement gap between white students and students of color persists. The racial disparities in "funding, curriculum, school discipline, [and] college enrollment rate[s]," portray a public education system still plagued by institutional racism and still unequal. Although the United States has attempted to address the racial disparities in the public education system through programs and methods that are not facially discriminatory, the effects of the programs create higher standards and greater obstacles for minority students, and consequently add to the racial discrimination problem. This comment will address three areas in the education system that have discriminatory effects: disparate funding, academic tracking, and "zero tolerance" discipline policies.

1. Disparate Funding

First, the capabilities of schools in impoverished districts are extremely limited due to the structure of public school funding. If a school has minimal funding, the opportunity for impoverished students to excel is more difficult. When the money is unavailable, the necessities of a solid education such as books, technology, clean and safe facilities, good teachers, and small class sizes often cannot be provided. The students score lower on standardized tests and are unable to compete with the students from wealthier districts with more educational resources.

2. Academic Tracking

Many districts have created academic tracking programs. These programs allow teachers and school administrators to determine a student's abilities and potential and then place that student in an academic track reflective of teacher's or administrator's personal perception. The academic tracks range from remedial and special education programs to accelerated and gifted programs. Studies show that African American and Latino students are over-represented in the lower tracks and under-represented in the higher tracks. The tracking can begin very early in a child's academic career and can be extremely detrimental to the child's future. If a child is placed in a lower track because of a perceived inability to do mainstream work, it is often very difficult for the child to break into the higher track due to the very nature of the tracking system.

The method of determining how to put a student in a particular track is laden with racially discriminatory factors. To determine which track to place a child in, three factors are considered: standardized test scores, teacher recommendations, and parental intervention. First, the standardized tests have frequently been criticized for being racially biased. Second, teacher recommendations are strictly subjective and can be based solely upon general impressions. Third, if parents are unaware of the system due to language barriers or because of general ignorance, the parents are unlikely to intervene on behalf of their child and push for a higher track placement.

3. "Zero-Tolerance" Discipline Policies

Another area of racial disparity that leads to unequal treatment in the schools is the area of discipline. Studies show that students of color are more likely to be suspended and/or expelled from school than similarly situated white students. This statistic has become more pronounced now that schools that receive federal funding (all public schools) must implement "zero- tolerance" policies for weapons offenses. The policy may appear race neutral on its face, but the implementation of the policy has lead to findings of racial discrimination.

Since the consequences of bringing a weapon to school can be harsh, and can include suspension or expulsion, schools are permitted to evaluate incidents on a case-by-case basis and may deliver a less severe punishment if mitigating circumstances permit. There is evidence to suggest that if a student appears to have a positive and promising future, schools will overlook relatively minor violations such as weapon possession, and will not expel the student. Instead the schools will deliver a lesser punishment in the hopes of rehabilitation, but there are inequalities in the application of this school discretion. Often, the minority students do not receive the benefit of this second chance and tend to suffer more devastating consequences.

Racial discrimination affects more than disparate test scores and overall unequal treatment in the schools. One effect is addressed indirectly in CAT; however, because of the United States' limited definition of "torture," the CAT's implications are severely limited. According to the United States, the government need only deal with mental suffering caused by torturous acts in very few circumstances. These situations do not deal with any intentional racial discrimination that takes place in the schools but rather they address situations when the victim is in the custody of an official in the criminal setting or in a mental institution. The United States appears to ignore the times when children are under the control of the state during schools hours.

Children are under the school's control during much of the day, for five days a week. Yet this time of responsibility is not considered time during which the United States accepts a responsibility to ensure that the children are not experiencing torture in the form of mental suffering. When a child endures racial discrimination in the school system, the child will experience severe mental suffering that will affect him/her throughout the child's life. Students can easily feel frustrated as they are disregarded and classified in lower academic brackets, punished more harshly, and not given the financial means to succeed in school. As the discrimination continues throughout school, the long-term effects will cause severe mental pain as the students begin to believe they are inferior to their white peers. The United States has not acknowledged the possibility that the suffering of the students under the government's control may fall squarely under its own limited definition of torture.

According to all three treaties, the unequal treatment between minority students and Caucasian students runs counter to the United States' international obligations. In the United States' report to CERD, the government characterizes racial discrimination problems as mainly private acts of discrimination. However, the disparities in schools are not just a result of intentional or private acts. Discrimination in school is a form of institutional racism and must be addressed by the United States. The United States has an obligation under CERD to protect everyone from acts of racial discrimination and laws that either discriminate or have the effects of discrimination. Under CAT, the United States must prevent torture of all forms, including mental torture. Under ICCPR, the United States must protect every child, regardless of his/her race, as a minor in the society. These requirements are not currently being met.

C. How To Begin Eradicating Racial Discrimination

The problem with attempting to eliminate racial discrimination in the United States is its deep-rooted foundation. Over time, the United States has tried to tackle the issue of discrimination; but through many self-imposed limitations, such as the ones found in the treaty reservations, the government and the court have skirted around issues that need to be directly addressed. Discrimination in the schools is an issue that is easy to overlook because intent can rarely be proven.

The first step to eliminating racial discrimination in the school system is to recognize the serious disparities within the schools, and to recognize that the reasons for these disparities are not due solely to student abilities or personal racism. The type of discrimination in the schools that is often the most devastating is institutional racism. This type of racism has no intentional motivation but instead is set up within the system so that even if a person tries to be fair and equal, the chances are that discrimination will still occur.

There are several ways in which the United States can begin to attain the international standards that they have agreed to in various forms. The first step is to recognize that the reservations in CAT, CERD, and ICCPR are too narrow to truly reach the heart of discrimination. Institutional racism affects more people and has a more damaging effect upon the victims than personal racism does. If the United States ratifies a treaty but submits so many limiting reservations that the actual obligations of the United States in the treaty reflect the current laws of the country, the aspirational value of the treaty is lost.

The United States is not in compliance with any of the three aforementioned treaties in the area of education. However, according to the United States' report to the three treaty bodies, the United States has fulfilled most of the commitments agreed upon in the treaties. As long as the reservations pertaining to intentional acts exist, many of the problems with discrimination will persist; yet the United States will not have an international obligation to address them. Currently, the United States has ratified treaties that have been narrowed so much by reservations that the aspirational purpose of the treaty is lost. Thus the ratification by the United States resembles mere lip service to the international community, rather than a promise to improve.

A second vital step to eradicating racial discrimination in the schools is to provide equal funding for all students. It is ironic that students who are in the poorest of districts receive the smallest amount of funding. The students in these neighborhoods often face innumerable obstacles that will inhibit their ability to break out of the poverty circle. Yet these are the students who are given the fewest of school supplies and educational materials. The government cannot expect a school to produce students with quality test scores when the school has no resources to implement improvements.

The third step is to begin collecting data with consistent criteria around the country. The various school districts have several methods that are generally inconsistent with each other when collecting statistics about discipline, test scores, and academic placements. If schools were required to adhere to a uniform method, the country could provide evidence of the actual deficiencies in the public schools. The more the country accurately reports about weaknesses, the better chance legislators and school administrators have to efficiently and effectively address insufficiencies in public policy.

A fourth way to address the discrimination in schools is to eliminate the academic tracking programs that virtually lock students into a remedial track. When a student is locked into a program, the objective of providing equal education is lost. The United States is supposed to be the land of opportunity but in the tracking programs, the opportunity to succeed academically is practically siphoned away.

Finally, the federal government should reevaluate the "zero-tolerance" policies in schools. As the Programme of Action from the World Conference against Racism states, all measures should be taken to avoid programs that deny a student's equal access to a quality education. Because schools apply the "zero-tolerance" standard differently for similar offenses, the government must reexamine the goals of the policy and perhaps find a more rigid method for schools to apply the standard. If a more rigid application is impossible to agree upon, then the expulsionary element of the policy must be reserved for only the most severe of violations. Schools have been given so much discretion that personal racial biases are playing a significant role in the administration of the policy and are harming minority students disproportionately to white students. For these reasons, the policy must be adjusted or eliminated.

. . .

The United States has promised the international community that it will work to eliminate racial discrimination in the public education system. The United States has supported its commitment to eradicate racial discrimination in the CERD, the CAT, the ICCPR, and by their attendance at the "World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance." In 1954, the United States took a significant step forward by recognizing that the doctrine of "separate but equal" is not a constitutionally sound policy, but the struggle toward full integration is not yet finished.

Today the schools appear relatively integrated, but beyond the physical integration, many still areas are severely segregated. The funding is unequal, the opportunities within the schools are limited to minority students through the tracking programs, and the disciplinary policies impact minority students disproportionately to white students. The schools are not yet "open and accessible to all, regardless of race" as the United States has claimed. There is still a long road ahead of the country, with respect to the elimination of racism. The first step is an honest recognition of the problem. Children across the nation are entitled to a quality education and equal access to that education. The United States has acknowledged this right of children, but so far the country has not turned it into a reality. The United States must make the necessary steps to address the problems in the American public education system before the education system will ever reflect the intent of the Brown decision. We may not uphold the "separate but equal" doctrine but we have certainly not created an integrated and equal system.

{a1]. J.D. Candidate, The Dickinson School of Law of The Pennsylvania State University, 2003.

Remedying Disparate Impact in Education

Dianne Piché, June Zeitlin, Sakira Cook, Max Marchitello

excerpted from: Dianne Piché, June Zeitlin, Sakira Cook, Max Marchitello, Remedying Disparate Impact in Education, 38-FALL Human Rights 15 (Fall, 2011)


In 1954, Brown v. Board of Education of Topeka (347 U.S. 483) launched a revolution that changed the world. The Supreme Court decision not only outlawed school segregation, it also inspired an era of civil and human rights progress for all Americans. A unanimous Court in Brown described the importance of education in terms that are as relevant now as they were nearly six decades ago:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he 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 to all on equal terms.

Yet our nation continues to be plagued by conditions of inequality and deprivation in schools the minority poor are required by law to attend. Today, the dream of Brown--equal educational opportunity for all American children--remains a dream deferred.

Though many Americans may consider ensuring quality education for all children to be an insurmountable challenge, this is not the case. In this article, the authors pose some alternative ways of thinking about and enforcing the right to education through the dual and related lenses of the disparate impact theory of liability under Title VI of the Civil Rights Act of 1964 and international human rights law. Applying an international human rights framework to promote an affirmative right to education, together with bolder enforcement of civil rights laws that address disparate impact, will shift the discussion from educational inputs to educational outcomes. Using international treaties as a legal underpinning emphasizes the need for government to eliminate discrimination and specifically provide access to quality education for all children--the vision and promise of Brown.

What Happened on the Road from Brown to Obama?

The concept of a federal right to education has been steadily eroded to the point where federal court litigation is no longer a reliable tool to achieve educational justice for minority students.

Any hope that Brown and its progeny would be used to require states to equalize their educational systems based on wealth and class was erased by the Supreme Court in its decision in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), where the Court upheld the constitutionality of Texas's state system of school finance. Texas, like many other states, relied heavily on local property taxes to fund its public schools. The Rodriguez Court held that the system did not violate the Equal Protection Clause of the Fourteenth Amendment and that wealth would not be subject to the heightened scrutiny reserved for race and national origin classifications. The Court also decided that education was not a fundamental right under the federal Constitution.

Rodriguez forced students and education officials in under-resourced school districts--often enrolling high proportions of minority students--to mount legal and political advocacy on a state-by-state basis. Predictably, however, in the nearly forty years since Rodriguez, we now have a confusing patchwork of state court rulings. In those states where courts have ordered improvements in resource allocation, there has been widespread noncompliance.

In the 1990s, the Supreme Court further curtailed federal education rights in a trilogy of cases from Oklahoma City; DeKalb County, Georgia; and Kansas City, Missouri. The Court signaled to states and districts that had maintained de jure systems that far less than complete elimination of all vestiges of segregation and its effects would be required of them. The impact of these decisions, in the aggregate, was a watering down of standards districts are required to meet in order to meet unitary status. The cases also provided a quick and easy exit strategy for districts and states seeking to avoid further compliance with federal court orders and desegregation agreements. While the Court later articulated standards for voluntary integration plans in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), it is not likely to recognize an affirmative right to education in the foreseeable future.

The constitutional right to education that has survived into the Roberts Court is a limited right: of children residing in the United States to attend a public school free of intentional discrimination on the basis of race and other protected categories. While Brown and its progeny clearly established a federal right for children to be free from government-sponsored segregation (and other invidious discrimination), the federal courts in the main did not require more than a minimal set of educational inputs. Moreover, administrative enforcement of Title VI by the Department of Education's (the Department's) Office for Civil Rights (OCR) has proven insufficient to bring about systemic improvement in reducing resegregation, excessive discipline rates experienced by minority students, or inequitable resource allocation to schools.

Disparities in Achievement, Resources, and Student Discipline

Nearly six decades after Brown, gross disparities in academic achievement, resource allocation, and student discipline persist. High-quality public education is not available to all on equal terms, as the Supreme Court mandated in Brown.Simply put, the public school system in this country is failing millions of children--especially children of color, poor children, English learners, and those with disabilities. (Due to space, however, the focus of this article is on students protected from discrimination on the basis of race, color, or national origin.)

How bad is it? Only last year, the National Assessment of Educational Progress (NAEP) reported that half of African-American and Latino fourth-graders lacked even a basic level of reading and literacy skills (compared to 22 percent of whites). In mathematics, the United States continues to lag behind our international competition. While we have seen some remarkable improvement in progress from below-basic to basic achievement, only 12 percent of African-American and 18 percent of Latino students have reached the levels of proficient or advanced (compared to 33 percent of whites).

These achievement disparities are exacerbated by the disproportionate dropout rates for these student populations. In 2009, African-American students dropped out of high school at an annual rate of 9.3 percent and Latino students at a rate of 17.6 percent, while their white counterparts exit school prematurely at a rate of 5.2 percent.

Race-based achievement gaps often correlate with significant shortfalls in the resources allocated for underprivileged communities. A 2011 Department report confirmed that school districts habitually underfund schools enrolling higher proportions of low-income and minority students. Based on 2008-09 school year data, the report found that from 42 percent to 46 percent of Title I schools (depending on school grade level) had perpupil expenditure levels that were below their district's average for non-Title I schools at the same grade level, and from 19 percent to 24 percent were more than 10 percent below the non-Title I school average.More recently, following a trend in state court litigation, a state trial court in Colorado determined that the state's school finance system was both inadequate and unequal, violating the state's constitutional guarantee for a thorough and uniform system of public education.

Another factor related to achievement gap is the persistence of race-based disparities in school disciplinary actions. According to the Department's Civil Rights Data Collection, in the 2008-09 school year, black students were suspended nearly three times more frequently than white students. In 2010, OCR opened compliance reviews in two school districts that reported suspending two-thirds of their African-American male students in a year. Latino students were suspended more than two times as often as whites. Students with disabilities, especially those of color, experience higher rates of suspension and are far more often subjected to physical seclusion or restraint. Although school discipline codes are facially neutral, their impact on these student groups has been injurious.

Changing the Paradigm

All of these conditions are associated with significant disparities in educational outcomes for low-income and minority students. A campaign by the administration and advocates to challenge educational policies and practices that result in a disparate impact would emphasize the need for positive student outcomes--for example, staying in school, academic achievement, college-readiness. And public officials might be required to finally begin to address the patterns of policy--systemic discrimination that adversely impacts students of color.

Viewed this way, substantial outcome disparities between student groups would be treated as legal violation wrongs that would trigger positive remedies. So, too, could policies and practices like inequitable systems of resource allocation (including qualified, effective teachers) and disciplinary rules that have a disparate impact on children of color, students with disabilities, and English language learners.

While the Fourteenth Amendment and the Title VI statute require proof of intent to discriminate, the Title VI regulation does not and includes an effects standard. The Supreme Court determined in Alexander v. Sandoval, 532 U.S. 275 (2001), however, that there is no private right of action to enforce this provision. This decision severely limited the ability of private plaintiffs to pursue legal remedies for policies and practices with an adverse, disparate impact. Fortunately, the disparate impact provision can still be invoked by federal agencies on behalf of people who experience unintentional but demonstrable discrimination. The Department has the ability to resolve complaints and to conduct compliance reviews against states, districts, and schools for practices that create a disparate impact on students. By accelerating investigation of egregious cases of disparate impact, the Obama administration can take significant steps toward enforcing the law, protecting students' right to education, and guaranteeing that all students are actually afforded a quality education.

This approach, with its emphasis on addressing outcomes, is consistent with international human rights norms and standards. The international human rights framework, which the United States helped to develop when the United Nations was founded, focuses on realizing affirmative rights as well as protection from denial of such rights. Within this framework, the government's role is clear: to respect and ensure the rights of individuals. At the very basic level, respect involves not violating one's rights, while to ensure is an affirmative obligation to protect rights, investigate and punish rights violations, and promote and fulfill rights. This holistic view considers rights to be indivisible, interrelated, and interdependent and acknowledges that all must be considered in order to effectively address social ills. It places the onus on governments to create policies based on human rights principles that effectively combat discrimination in all of its forms and to take affirmative steps to implement and monitor human rights obligations domestically.

Education As a Human Right

As enumerated in the Universal Declaration of Human Rights (UDHR). and further expanded in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ESCR), human rights are those that are essential to live as human beings-- basic standards without which one cannot enjoy equality and dignity. These treaties serve as the blueprint for all rights and the foundation for the development of the human rights framework, universal norms, and standards.

The right to education appears specifically in several human rights instruments, including the UDHR (Article 26), the ESCR (Articles 13 and 14), the Convention on the Rights of the Child (CRC) (Articles 23(3), 28, 29, and 33), the International Convention on the Elimination of Racial Discrimination (ICERD) (Articles 2(2), 5(e)(iv), and 33), and the Convention on the Elimination of Discrimination Against Women (CEDAW) (Articles 10 and 14(2)). (While the United States has endorsed the UDHR, which is comprehensive and inclusive of the right to education, the only one of these treaties the United States has ratified is CERD, which includes a binding commitment on the nation to implement its provisions.)

The right to education, when it was first recognized internationally, focused on access and established an entitlement to free, compulsory primary education for all children; an obligation to develop secondary education, supported by measures to render it accessible to all children, as well as equitable access to higher education; and a responsibility to provide basic education for individuals who have not completed primary education. Unquestionably, progress in that regard has been made. However, achieving the goal of assuring every child a quality education that respects and promotes his or her dignity and optimum development has necessitated a broader focus.

A recent report by the United Nations Educational, Scientific and Cultural Organization entitled A Human Rights Based Approach to Education for All describes the rights-based approach to education for all as a holistic one, encompassing access to education, educational quality (based on human rights values and principles), and the environment in which the education is provided. This approach integrates the norms, standards, and principles of international human rights into the entire education process from development to programming, including plans, strategies, and policies. It specifically considers the effect that the policy will have rather than focusing on its intent. And in doing so, it enables us to reevaluate our current systems and assess those inputs that directly affect a child's ability to receive a high-quality education. As applied, it seeks to create greater awareness among governments and other relevant institutions of their obligations to fulfill, respect, and protect human rights and to support and empower individuals and communities to claim their rights.

The Committee on ESCR describes it best in its General Comment No. 13, which states that education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.Stated another way, without the right to education, realization of all other rights becomes impracticable. This is the very foundation of Brown.

Although no affirmative constitutional right to education has been recognized in this country, it is important to note that the United States is accountable for moving toward the realization of the right to education in the context of its international treaty obligations. In particular, as a party to ICERD and the ICCPR, the United States is required to file a periodic report to each committee, detailing how it has successfully implemented each provision. Responding to those reports with respect to education, both ICERD and the ICCPR noted with great concern the persistence of de facto racial segregation in public schools; the persistent achievement gap between students belonging to racial, ethnic or national minorities, including English Language Learner (ELL) students, and white students; and the alleged racial disparities in suspension, expulsion, and arrest rates in schools [that] contribute to exacerbat[ing] the high drop-out rate and the referral to the justice system of students belonging to racial, ethnic or national minorities.

Further, the committee recommended that the United States take steps to adopt all appropriate measures to elaborate effective strategies aimed at promoting school desegregation and providing equal educational opportunity in integrated settings for all students and enact legislation to restore the possibility for school districts to voluntarily promote school integration in accordance with article 2, paragraph 2 of the convention.Also, the committee urged the United States to take special measures to reduce the achievement gap, improve the quality of education for all students, and encourage school districts to review zero-tolerance school discipline policies. It is no surprise that these recommendations by the committee are directly related to the pervasive problems within our education system as stated above.

American Public Education Through the Human Rights Lens

There is broad agreement that the current approaches employed to achieve the goal of quality education and eliminate discrimination are inadequate. Need-based and service-delivery approaches fail to acknowledge or address the complex barriers that impede children's access to school, attendance, completion, and attainment and, in so doing, inhibit progress in closing the gap among underserved communities.

By contrast, a human rights framework for confronting systemic inequities in the American public education system would emphasize outcomes rather than inputs or access. Under this framework, neutral policies crafted as an attempt to eliminate discrimination and ensure all students have an equal opportunity would be considered ineffectual given the persistence of wide disparities in educational outcomes.

What would it mean to apply a human rights framework to education? In the context of school discipline, for example, while our current practice to address discipline issues is often to remove the student from the class, under a human rights approach, one would conclude that both out-of-school and in-school suspensions prohibit students from participating in the daily activities inherent to quality schooling and arguably violate their right to education. A human rights approach would involve intervening in an effective and holistic way, determining the child's needs, and attempting to meet them.

Utilizing disparate impact theory is one way to begin to implement the human rights framework through domestic laws. As a result of bringing disparate impact cases against states, districts, and schools, there would need to be new solutions to improve education for all that may exist beyond the current educational paradigm. As disparate impact cases highlight discrimination in our public education system, adopting the human rights framework will help to develop new, holistic solutions. It is premature to speculate on exactly what proposals could grow out of the implementation of a human rights framework; however, it is certain that they will be more comprehensive and cross-cutting rather than isolated; reflective of all student needs; cognizant of the results of the policy; and cognizant of all students' right to education.

The United States is a world leader in advancing human rights and promoting basic civil and political rights and equality around the globe. Yet, application of the international human rights framework has generally not occurred domestically; rather, the pursuit of civil rights and social justice in the United States has rested primarily on rights guaranteed by the Constitution and our domestic laws. Unquestionably, there have been substantial improvements in domestic law prohibiting discrimination with the passage of the Civil Rights Act, the Voting Rights Act, the Americans with Disabilities Act, and many others. Yet we still fall short in successfully eliminating discrimination at its root, a failure that may be attributed in part to our focus on proving intent.

Through the human rights framework, we have an opportunity to define a clear mandate for our government, the private sector, and our nation to dramatically improve public education in America.



Dianne Piché is senior counsel and director of education programs, June Zeitlin is senior counsel and director of the Convention on the Elimination of Discrimination Against Women program, Sakira Cook is policy research associate, and Max Marchitello is William L. Taylor Policy Fellow at the Leadership Conference on Civil and Human Rights.

Racial Justice and Equity for African-American Males in the American Educational System: A Dream Forever Deferred

Floyd D. Weatherspoon

Permission pending: Floyd D. Weatherspoon, Racial Justice and Equity for African-American Males in the American Educational System: a Dream Forever Deferred, 29 North Carolina Central Law Journal 1 (2006). (221 Footnotes Omitted)


The plight of African-American males to achieve racial justice and equity in this country continues to deteriorate at an alarming rate. The American justice system has permitted and in some cases sanctioned the marginalization of African-American males as full citizens. *2 The basis for the denial of racial justice and equity for African-American males is caused, in part, by the intersection of their race and gender (black and male).

African-American males are disproportionately represented in every aspect of the criminal justice system, from being racially profiled, stopped, arrested, prosecuted, sentenced, incarcerated, and *3 placed on death row. Indeed, the overrepresentation of African-American males in the criminal justice system negatively impacts their ability to gain meaningful employment, health care, to exercise their ability to vote, and to obtain a quality education, if any education*4 at all. At the root of many of these issues is a discriminatory criminal justice system which targets African-American males for punishment. There is a direct correlation between the failure of African-American males to obtain a quality education and their overrepresentation in the criminal justice system. Just as insidious as our criminal justice system, public school systems are warehousing African-American male students for future placement in the criminal justice system. In other words, public school systems indirectly supply the criminal justice system with African-American male students who have dropped out of school or have been suspended or expelled. Further, public school systems have failed to provide an effective, adequate, and non-discriminatory education system, as mandated by Brown v. Board of Education. Without a quality education, African-American males are forever relegated to the level of second class citizens in American society.

It was the hope and dream of African-Americans that the Supreme Court decision in Brown would have resulted in the end of separate and deplorable schools for African-American students. However, for many African-American students, the failure of Brown to ensure quality and equity in education can be seen in every aspect of our public educational system. In particular, African-American male students are disproportionately assigned to the sports curriculum or *5 special education classes. For example, starting in kindergarten, African-American males who have above average athletic skills are nourished and developed to play sports through high school. Often, this over-emphasis on sports is at the expense of their education. In addition, African-American males are disproportionately suspended and expelled from school, and are systematically excluded from advanced and college prep classes. Moreover, African-American males who are perceived to have educational deficiencies are assigned to special education classes or ignored and passed on through the system. African-American males consistently represent the highest dropout rates for high school students. Even though public school systems are well aware of the status of African-American male students, they are ignored, neglected, labeled, stereotyped, and written off as dysfunctional.

This article will explore how the failure of Brown to ensure quality and meaningful education for African-American male students is the major impetus for racial injustice and inequity that African-American male students endure. Part II of this article describes the initial impact that the Brown decision had on ending the segregation of public schools. Part III reveals how public schools have returned to segregated institutions. Part IV explains how the Brown decision has failed to ensure equity and quality education for African-American males. This section will also document the present deteriorating status of African-American males in public schools. Lastly, Part V, the conclusion, provides a brief discussion on remedies to enhance the status of African-American males in public educational systems.

*6 In this article, I have not attempted to set forth an exhaustive list of remedies and strategies to enhancing the status of African-American males in public schools. Instead, I only briefly cite a few possible remedies. It is hoped that this article will engender further dialogue and research on enhancing the status of African-American males in public schools.

II. Impact of Brown on the Desegregation of Public Schools

In 1954, the United States Supreme Court issued one of the most, if not vitally important, civil rights decisions in the history of the country. This came in the seminal decision of Brown v. Board of Education. Brown, which overruled Plessy v. Ferguson, invalidated the legal doctrine of separate but equal. For more than 50 years, the decision in Plessy upheld the legality of separate but equal educational systems. According to Plessy, it was legal to educate African-American and white students separately in different facilities. However, the court in Brown held that in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.

The Brown decision has had an enormous impact on the education of all students, especially minorities. The Brown decision also has had a tremendous impact on ending segregation in public transportation,*7 accommodations, and recreation and park facilities. Indeed, the legal principles set forth in the Brown decision, transcends from educational law to other substantive laws.

In many school districts, especially in the South, the Brown decision was successful in ending de jure segregation. Unfortunately though, the Brown decision failed to be a catalyst for ending institutionalized racism. Racism has plagued African-American students, especially African-American male students who were often bused into predominately white and hostile educational environments for the sake of desegregation. African-American students experienced more hostility as school districts attempted to desegregate public schools. As school districts return to segregated schools, African-American male students find themselves in school environments similar to the legal segregation scheme in Plessy. The only difference between pre-Brown and post-Brown is that the discrimination is not blatant but hidden in policies and practices that create a hostile learning environment.

The Brown decision established the importance of education and the responsibility of state and local governments to provide a quality *8 education to all its citizens, including minorities. Specifically, the court stated:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he 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 to all on equal terms.

Ironically, Chief Justice Warren's statement still remains the primary issue in public schools today. It is clear from the wealth of educational data that state and local school districts have failed miserably to provide equal opportunities to minority students, especially African-American males. Even more compelling today, African-American children will find it difficult to succeed in life without an adequate education. For African-American males, it is more than a doubt, but a reality, that the American education system has failed to place them on a path which leads to the fulfillment of the American dream. Instead, African-American males are disproportionately expelled, segregated in a segregated educational system, and pushed along a path of despair and failure.

III. Re-segregation of Public Schools: A Return to Plessy

It was Martin Luther King's dream that white and black students would be educated in an integrated environment. The National Association for the Advancement of Colored People (NAACP) vigorously*9 pursued this dream through litigation. Fifty years later, minorities and the economically disadvantaged are segregated into the poorest schools in the country where school resources and funding are limited.

School districts across the country are rapidly re-segregating. The dream that Dr. Martin Luther King, Jr., so eloquently spoke of has never been truly realized. Indeed, fifty years after the Brown decision, African-Americans have awakened to a nightmare of de facto segregation and isolation.

We celebrate the 50th anniversary of Brown, but it is as much about its history than its present day effect on public education. As a result of the Brown decision, public schools, especially in the South, initially*10 began to desegregate schools. However, the success of Brown was short-lived. To avoid integrating their children with African-Americans, white parents moved out of school districts or sent their children to private schools. The Supreme Court's decision in Milliken v. Bradley, which restricted the use of busing to desegregate the Detroit School system by implementing an inter-district remedy, for all practical purposes, ended efforts by school districts to desegregate public school systems. In theory, separate but equal is now illegal, but in practice, public schools are largely separate and unequal.

During the past decades, federal courts have slowly but consistently dissolved the federal desegregation plans which had some initial success in desegregating public schools. Indeed, many school districts have asked federal courts to terminate their consent orders to desegregate public schools and to return control of public schools totally or partially back to local school boards. School boards have primarily *11 relied on the Supreme Court decision in Board of Education v. Dowell, which established the good faith standard to determine whether a school district has moved from de jure segregation to a unitary system. The ending of court-ordered and supervised desegregation plans, for all practical purposes, sanctions the legitimacy of segregated schools, so long as the school board is acting in good faith. In particular, states such as California, New York, Michigan, and Illinois represent the most segregated states for [African-American] students. However, many school districts in these states have asked the courts to end court ordered monitors of school districts.

This is not to suggest that control of schools should never be returned to local school boards who maintained de facto segregated school systems. The Supreme Court in Freeman v. Pitts stated that local autonomy of school districts is a vital national tradition. The concern, however, is that federal courts seem eager to return local control of schools out of frustration and defeat. Even where there may be vestiges of disparity lurking within the system, federal courts nevertheless readily relinquish control.

School districts that attempt to achieve racial integration by using racial classification must meet the strict scrutiny test. In McFarland v. Jefferson County Public Schools, the school board was partially successful in meeting this strict scrutiny test by using the Supreme Court's decision in Grutter v. Bollinger, which upheld *12 race-conscious admission policies in university admission programs. The school board was successful because their 2001 plan met the strict scrutiny test. To comply with Grutter, the school board define[d] with precision the interest being asserted in order to validate its use of race as an admission factor. The Jefferson County Public Schools stated the following interest:

To give all students the benefits of an education in a racially integrated school and to maintain community commitment to the entire school system precisely express the Board's own vision of Brown's promise. The benefits the JCPS hopes to achieve go to the heart of its education mission: (1) a better academic education for all students; (2) better appreciation of our political and cultural heritage for all students; (3) more competitive and attractive public schools; and (4) broader community support for all JCPS schools.

The school board's plan supports the principles in Brown; however, most school districts have given up on using race as a factor to integrate public schools. Consequently, public schools are more segregated now than in the 1970s and 1980s. Often segregated schools lack funding and educational resources, have poor facilities, offer less advanced courses and employ teachers with less skill and teaching experience. Even where minorities are attending desegregated schools, they are often humiliated by being placed in segregated classes designated for low academic achievers. Minorities and African-American males in particular, in desegregated schools, are also isolated and invisible to their white peers and teachers. It is now time for school districts and state education officials to take meaningful steps to effectuate*13 the decision in Brown, or at least renew efforts to enhance the quality of education for minorities, especially African-American males.

IV. The Failure of Brown to Ensure Equity and Quality Education for African-American Males

Fifty years after Brown, the status of African-American males in public schools has only improved marginally; indeed, in some cases it has deteriorated. African-American male students are stereotyped as deviant, hostile, and oppositional. African-American male students are disproportionately labeled hyperactive and as special needs students. By the fourth grade, African-American males are on dysfunctional tracks to fail in public schools. In elementary schools, African-American male students are systematically isolated and segregated within the school. The isolation and marginalization of African-American males may be a motivating factor for the large numbers of African-American males who drop out of school and even commit suicide.

There is evidence that African-American male students may have different learning styles, motivators, and cultural differences which may conflict with the traditional method of teaching and educational models. Clearly, there is a major need in reforming our educational *14 system to meet the needs of all students, specifically the various sub-groups, which include African-American males.

In addition, economic disparity may further frustrate and isolate black male students who are not only placed in predominately white middle-class environments, but even predominately black educational environments which rely totally on a European model of teaching. It is not to suggest that African-American males have not made a significant accomplishment in education since Brown, but just the opposite. What is clear is that their accomplishments lag substantially behind the educational accomplishments of other groups. Indeed, African-American males' academic progression in public schools has leveled off, if not remained stagnate. Statistical educational data supports the fact that the graduation rates for African-American males are in crisis. African-American male students are missing in the statistical data that represents success and academic achievements. African-American males are normally listed among the most negative educational statistical data collected and reported. The following troubling educational statistics on African-American male graduation rates, dropout rates, suspension and expulsion rates, placement in special education classes, low test scores, and lack of placement in advance placement classes illustrate their underclass status in public schools.

 A. Graduation Rates

The overall graduation rate of African-American students is deplorable. For example, the national graduation rate in 1998 for white students was 78%, whereas African-American students' graduation rate was 56%. In 2001, the national graduation rate for African-American males was 56.2%, which is a minimal increase from the percentage three years prior. In some school districts, the graduation rate for African-American males is substantially less than the national rate.

In virtually every state, regardless of which part of the country, African-American males' graduation rate is disproportionately lower than whites. Interestingly, the graduation rate of African-American males is lower in the Northeast than in the South. With the long history of racial segregation in the South, the thought would be that their graduation rate would be lower than in any other region of the country.

Recent reports by The Schott Foundation for Public Education and the Urban Institute's Education Policy Center, vividly reveal the disparity between the graduation rates of African-American males and white students. Similar to other studies, both studies report that on a national level African-American males graduated at a rate of 45%, while the graduation rate for white males was 70%. When one reviews the graduation rates of African-American males in each state, the disparity is startling. For example, African-American males in *16 states such as Nebraska, North Carolina, Ohio, Illinois, Michigan, Indiana, Iowa, Minnesota, Florida, Pennsylvania, Georgia, and New York have a graduation rate of less than 55%.

*17 African-American males are in lower grades than white students based on their age. In addition, African-American males are more likely to repeat grades than white males. These factors may impact African-American male student desire to remain in school and graduate. Moreover, African-American males rarely graduate valedictorians of their high school class; nor are they recognized for scholastic achievements.

The failure of public schools to educate African-American males, starting in elementary school, may ultimately impact their high school graduation rate. Their negative educational experience in turn affects their employment abilities. Surprisingly, many school districts do not collect statistical data on various sub-groups, e.g. African-American males, thus making it difficult to track and verify racial and gender graduation disparities in the school system. Consequently, the graduation rates and progress of African-American males in public schools may be worse than what is presently reported.

B. Dropout Rates

The dropout rate has marginally decreased for African-American males during the past 20 years; however, dropout rates of African-American males still remain high in comparison with white students. The dropout rate of African-American male students in high school is disproportionately higher than other groups of students. In some school districts the dropout rate for African-American males is higher than 50% and has reached an endemic problem facing African-American*18 male students. According to the U.S. Census Bureau, in 2000 the dropout rate for African-Americans aged 14-24 years was 15.3% whereas the dropout rate for whites the same age was 12.2%. Practically every state reports that African-American students, particularly African-American males, disproportionately drop out of school.

There is no one reason why African-American males drop out of high school. Clearly, among the reasons has to be a curriculum that fails to motivate and stimulate African-American males in a way that they appreciate the immediate benefits of an education.

The strict enforcement of school policies on zero tolerance for various infractions has a direct correlation to African-American male students being expelled and/or suspended, which may encourage them to drop out of school permanently. Even more disheartening is that *19 some studies have suggested that the dropout rates of students have a correlation to incarceration rates.

The absence of African-American male teachers to inspire, motivate, and encourage African-American male students to remain in school may also have a negative impact on their desire to stay in school and graduate. Too often, the one or two African-American male teachers also serve as coaches and are primarily focused on the upcoming sport season, not the academic success of African-American males. Other African-American male teachers have simulated into the white culture, thus there is a disconnect between them and young urban African-American male students. With no support from home, school, or community, African-American male students may drop out and seek acceptance among other African-American male dropouts. The long term effect will be lower wages, longer periods of unemployment, underemployment, and positions without benefits or pensions.

C. Disproportionate Suspensions and Expulsions

Numerous educational studies and school district records support the conclusion that minority students in public schools throughout the country are disproportionately suspended and expelled from school. Even long before high school, African-American males are *20 disproportionately suspended from pre-school and kindergarten. This trend continues throughout the African-American males' educational experience. A study by the National Center for Education Statistics reported that [i]n 1999, 35 percent of Black students in grades 7 through 12 had been suspended or expelled at some point in their school careers, higher than the 20 percent of Hispanics and 15 percent of Whites.

Not only are African-American males disproportionately suspended, often their suspensions are more severe than those of other students. The Brown decision eliminated de jure segregation and forced schools to desegregate, but Brown failed to protect African-American males from disproportionate suspension in predominantly white schools.

When school districts report suspension and expulsion by sub-groups, African-American males will be among the highest group suspended and expelled. For example, African-American males represent more than 20% of students expelled and 23% suspended, even though they represent less than 9% of students in high school. Even more telling is a review of specific cities and states. In the school year 1997-1998, African-American males made up 45% of the long-term suspensions in North Carolina schools even though they only represented 16% of state enrollment. Moreover, the expulsion rate of African-American males in North Carolina was 52%.

*21 Whether the school district is located in the South, North, or West, African-American male students will be at the top of the statistical data for school suspensions and expulsions. The disproportionate rate of suspensions and expulsions of African-American males may violate state constitutional provisions, which often require a fundamental right to an education. Such practices may also violate Title VI of the Civil Rights Act of 1964. There is no definitive study which explains why African-American males are disproportionately suspended and expelled from school; however, in Hawkins v. Coleman, the court determined that African-American students were disproportionately suspended because of institutional racism. Although, in Hoots v. Pennsylvania, the federal court released the school district from judicial supervision in the area of discipline, even though African-American students were disproportionately disciplined.

Unfortunately, school districts still intentionally or unintentionally rely on discriminatory factors in administrating disciplinary actions. There are a number of indicators that have been identified as having a *22 negative impact on African-American males. For example, the disproportionate number of African-American males suspended or expelled may be the result of race, plus gender, stereotyping. The issue of stereotyping was alleged in Fuller v. Decatur Public School Board of Education. In Fuller, six high school age African-American male students were expelled for fighting at a football game. The students alleged that they were expelled because they were stereotyped as gang members and racially profiled by the actions of the School Board. Similarly, in Lee v. Butler County Board of Education, testimony was presented that African-American males were being disproportionately disciplined. Nevertheless, the court granted the school board's motion to declare the school system a unitary status, thus ending the school desegregation litigation. The court accepted the superintendent's testimony that the school was primarily African-American, but failed to explore the race plus sex theory. The courts failed to determine whether African-American males were disproportionately receiving more disciplinary actions, as well as more severe disciplinary actions, than any other group. For example, African-American males received more disciplinary actions than African-American female students for the same infractions. School districts should be mandated by the United States Department of Education to analyze suspensions and expulsion data according to race plus gender. This would determine whether African-American males are disproportionately receiving disciplinary actions in schools.

The disproportionate numbers of African-American males suspended and expelled from school also has a direct impact on the disproportionate numbers of African-American males in the juvenile court system, low graduation rates, low grades, and their motivation to remain in school. School districts have a moral and legal obligation to develop alternatives to reduce the suspension and expulsion rate of African-American males from schools.

D. Exclusion from Honor and College Preparatory Classes

African-American students are systematically excluded from honors classes, college prep courses, and gifted programs. They are more often placed on a special education track and excluded from educational tracks designed for advanced placement and gifted programs. For example, in NAACP v. City of Thomasville School District, the court determined that the practice of ability group[ing] or tracking, resulted in a disproportionate number of African-American students being placed in the lower ability group, thus not being placed in the academically advanced classes. The court stated, Tragically, it appears that for many of these children, the die is cast as early as kindergarten. These children do not appear to be reevaluated (and thus potentially re-tracked) during their progressions through the system.

The court, nevertheless, held that there was no evidence that the school district intentionally used the tracking system to exclude African-American students from certain classes. In essence, the court sanctioned a system which maintains the segregation of students on the basis of race. The white students are assigned to advanced courses and minorities are assigned to low ability classes. Approximately thirty years before the decision in City of Thomasville School Dist., the District of Columbia Circuit Court in Hobson v. Hansen, held that African-American students were discriminately tracked into lower level, less challenging schools. This practice of segregating African-American students into general education courses continues to be practiced by many school districts.

*24 The exclusion of African-American students from advanced courses is not always blatant, but often subtle. This subtlety was obvious in People Who Care v. Rockford Board of Education, where the plaintiffs, African-American and Hispanic, argued that while the school may be desegregated, classrooms within the school were still segregated. The plaintiffs argued that minority students were underrepresented in advance courses. In dismissing this claim, the court reasoned that minorities had an opportunity to enroll in such cases. Specifically, the court stated, It is provincial and naive to suppose that because [the school district] once engaged in de facto segregation of its public schools, the choices of its minority students regarding voluntary enrollment in advanced classes open to all are a legacy of that segregation.

This reasoning on the part of the court clearly indicates a lack of understanding of the long term negative impact segregation and isolation can have on minority students. The mere fact that a school board announces that they are no longer excluding minorities from advanced classes, where in the past white students were nourished, mentored, and encouraged to take such courses, will not, without more, eradicate the present effect of past discrimination. The inference that only white students are capable of taking such courses may linger until school districts take positive actions to ensure that minorities, especially African-American males, feel welcome in such classes. Moreover, the use of tracking maintains segregation within a school system.

African-American males are systematically excluded from taking advanced courses in science, mathematics, and foreign languages. These courses are considered college preparatory courses that may lead to acceptance in college, scholarships, and advanced placement in college courses. These exclusions may be intentional on the part of teachers as part of a stereotypical bias that African-American males lack the intelligence, motivation, and support from their parents to be successful. Teachers may reinforce their stereotypical biases by *25 projecting low expectations for achievement toward African-American male students. Thus, the self-fulfilling prophecy becomes a reality. African-American males are more likely to be placed in lower, less challenging educational tracks. Likewise, African-American males are more likely to be taking remedial mathematics and general English. In addition to being excluded from honor classes, they are absent from honor and academic related organizations. From elementary school to college, African-American males are intensely recruited to play school sports but are not recruited or encouraged to join or participate in academic school clubs and organizations.

African-American males are less likely than whites to be identified as gifted and to participate in gifted educational programs. Often, these programs are not well publicized and are secretly shared with a select group of parents. Students are selected based on a teacher's recommendation. These programs permit students to participate*26 in a variety of enrichment programs, as well as placement in advanced courses. Unlike in sports, African-American males are not groomed and actively recruited for these programs. School systems that intentionally exclude African-American students from gifted and college prep programs may be in violation of Title VI of the Civil Rights Act of 1964. Civil rights complaints may be filed with the Office of Civil Rights of the U.S. Department of Education

The systematic exclusion and isolation of African-American males from gifted school programs perpetuates the stereotypical biases that African-American males are only interested in sports. It also further perpetuates their perceived academic inferiority. In Strauder v. West Virginia, Justice Strong expressed the concern that the exclusion of African-American men from serving as jurors was like permanently placing a brand of inferiority on them in violation of the law. Similarly, the over-placement of African-American males in special education programs, and the practice of systematically excluding them from advance courses, forever brands them as inferior among other students and teachers.

E. Overrepresentation in Special Education Classes

Far too many African-American males are assigned to special education classes and graduate with special education diplomas. It was never the intention of the Supreme Court's decision in Brown that African-American students, especially African-American males, would be segregated by race in schools and further segregated by race plus gender in special education classes. The segregation of African-American*27 males into special education classes and tracking programs negatively impacts their self-esteem, progress in school, and ultimately their rates of dropout and graduation. The disproportionate placement of African-American males in special education programs further subordinates their status in public schools. Moreover, the disproportionate assignment of African-American males in special education classes further perpetuates stereotypical biases that African-American male students who have behavioral issues are automatically labeled as being mentally challenged and academically deficient.

Numerous studies and reports by leading researchers have determined that minority students are overrepresented in special education school programs. Additionally, the U.S. Department of Education, Office of Civil Rights, which is the agency that investigates discrimination in school systems receiving federal funds, has determined that school systems disproportionately assign African-American students to special education curriculum. For example, in some states, 25% of African-American males are in special education programs. Even more disturbing is that in some school districts, African-American*28 males represent more than 40% of students placed in special education programs. African-American students comprise 20% of the population of students receiving special education services.

There are numerous reasons for the disproportionate number of minorities placed in special education, such factors include the misidentified and misuse of tests, the failure of the general education system, and insufficient resources. There are also concerns that teachers may place African-American male students in special education programs as a disciplinary action. Assigning African-American males to special education classes may also discourage them from completing school. For example, New York City Schools reported that for the 2001-2002 school year 61% of New York City's special education students of graduation age had dropped out of school.

In 1975, Congress passed the Individuals with Disabilities Act (IDEA) to ensure that students with disabilities would have free appropriate public school education which emphasizes social education and related services designed to meet their unique needs. Prior to the passage of the IDEA, many school districts failed to provide disabled individuals with an adequate public education, if any at all. For example, in Mills v. Board of Education, six of the seven minority plaintiffs were African-American male students who challenged the school board's practice of excluding them and other disabled students from adequate public schools and facilities. The court held in Mills *29 that disabled children have a constitutional right to a free and appropriate education.

Unfortunately, the IDEA has been at times a double-edged sword. In other words it has been overly used to label and disproportionately place African-American males in special education programs and out of mainstream educational instruction. At the same time, African-American males with mental disabilities have been suspended and expelled from school in lieu of receiving services required by the IDEA. Even though it was quite obvious to educators and researchers that minorities were disproportionately placed in special education programs, the federal government did not respond in any meaningful manner until 1997, when they passed the amendments to IDEA. The amendments state that [g]reater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities. Notwithstanding the amendment, minorities, particularly African-American males, are still often mislabeled and disproportionately drop out of school.

Standardized intelligence tests, otherwise known as IQ tests, are used to determine the placement of students in special education classes. The use of IQ tests was challenged in Larry P. v. Riles. In Riles, African-American elementary school children challenged the use of the State of California's IQ test, which resulted in a disproportionate number of African-American students placed in special education classes. The District Court held that the State had used tests which were racially and culturally biased, and had a discriminatory impact against black children in violation of Title VI of the Civil *30 Rights Act of 1964, the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act of 1975. The Court expressed concern with permanently placing African-American students into educationally dead-end isolated, and stigmatizing classes. . . . More than twenty-years later, African-American students, especially African-American males, are disproportionately placed in such classes.

Similarly, in Parents in Action on Special Education v. Hannon, African-American parents challenged the use of standardized intelligence tests administered by the Chicago Board of Education as being culturally biased toward African-American students. The parents presented evidence that African-American students were disproportionately placed in the educable mentally handicapped classes. As a result of the test, 80% of the students in the educable mentally handicapped classes were African-American students. Even though the Judge recognized that there were a few questions on the intelligence tests that were culturally biased against black children, or at least sufficiently suspect, nevertheless, the court held that these few questions would not invalidate the test. Unfortunately, a negative impact of the Brown decision was that African-American students, especially African-American males who were assigned to desegregated schools, were disproportionately labeled with having a mental disability and dumped into special education classes. Ostensibly, they were assigned to such classes to receive specialized educational assistance, in reality they were warehoused and passed on through the system. Similarly, African-American males who attend *31 segregated schools are warehoused and segregated in special education classes.

F. Proficiency and Achievement Tests

African-American males trail whites and African-American female students in every aspect of education achievement tests. Specifically, African-American girls out-perform African-American boys. There is also evidence of a significant difference in the educational achievement of African-American boys and girls in lower socio-economic status. Once again, our educational system has failed to identify and address the causes for the differential between white and African-American students, and within the subgroups of African-American boys and girls. African-American male students as a subgroup lag behind in academic achievement of all other students.

African-American students' test scores tend to be lower than white students' scores on proficiency tests from kindergarten through high school. Since Brown, the gap between African-American students and whites has narrowed, but the differential between the gaps is still very prevalent.

As public schools re-segregated, African-American students and other minorities remained in poorly funded, dilapidated school buildings, and were taught with outdated books and by uncertified teachers. Such conditions were similar to the pre-Brown period. The failure on the part of school districts to provide adequate resources and a positive learning environment may negatively impact minority students' academic achievement. Since Brown, states have been sued to adequately fund public school systems and to provide at least a minimally adequate education.

There is a growing gap in the grade point averages of white and black high school graduates. This will negatively impact their ability to obtain admission to college and/or employment.

The use of standardized assessment and proficiency tests by school systems negatively impacts minority students' graduation rate, promotions, and placement. Where standardized tests have been challenged in court, courts have given deference to states' educational policies. Despite this deference, courts recognize that state school systems have had a long history of discriminating against minority students. It is ironic that states which have historically discriminated against African-American students, by intentionally providing inferior educational opportunities, can now legally design standardized tests based on a system which has not corrected its past discriminatory acts.

The over-emphasis of sports in the African-American community lessens the motivation of African-American males to strive for excellence in academia. A disproportionate number of young African-American males believe that playing sports will lead them to a professional sports contract. Consequently, their focus is not on making the honor roll or the debate team but the varsity basketball or football teams. Sadly, African-American males cling to the hope of playing professional sports after high school, but the odds of playing professional sports are extremely remote. Supporters of sport programs in school will often point to success stories of African-American males who were inspired to stay in school because of their participation in sports. However, far too many African-American males who fail to maintain their star status are at the bottom of the academic scale. *33 In addition, African-American male students who are not athletes also succumb to strive for mediocre grades. The preferential treatment that athletes receive lessens their motivation to achieve academically. Unfortunately, those few who go on to play collegiate sports maintain their star status until the season is over or until they can no longer play because of academic troubles or physical inability. A disproportionate number of African-American males who play collegiate sports never graduate, especially at the Big Ten schools.

African-American male athletes who are highly skilled are intensely worshipped, idolized, and praised by teachers, alumni, the press, and other students. African-American male students, who are not super-jocks, are ignored, invisible, and stereotyped.

V. Conclusion

The Supreme Court's ruling in Brown mandating equal and quality education for students regardless of their race has long been forgotten or ignored by state legislators who refuse to provide adequate funding for public schools. Since the Brown decision, all States have ended the legal mandate to educate African-American and white students separately. Nevertheless, a majority of schools remain severely under-funded and segregated, with African-American males further segregated within these schools. George Wallace, the former governor of Alabama's infamous statement, segregation now, segregation forever, correctly describes the current status of public schools in America. Thus, African-American students, African-American males in particular, are systematically denied educational opportunities.

There is no one solution to enhancing educational opportunities for African-American males. There must be holistic solutions developed at the national, state and local levels of government. As the *34 Brown decision has taught us, there must not be total reliance on the legal system to cure this problem. The African-American community should explore how to change and expand the culture of African-American males by partnering with school administrators to develop plans which devalue sports among African-American males and develop programs which emphasize academics.

States should pass laws which mandate parental accountability in the education of their children. School systems should develop alternatives to suspension and expulsion of students, develop alternative programs to reduce the number of African-American males in special education classes, and increase the number of African-American male teachers in secondary schools. Colleges and universities should develop affirmative action programs that are designed specifically to recruit, admit and retain African-American males. Every school district should conduct an extensive study of the status of African-American male students at all stages of education.

Unless public school systems take an aggressive role in planning, developing, and implementing educational systems that meet the needs of all students, especially African-American males, the dream that Martin Luther King spoke of and the decision in Brown is forever deferred.



. Professor of Law, Capital University Law School (Columbus, Ohio). B.S., North Carolina A&T State University, 1974; J.D., Howard University Law School, 1977.

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