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Jane Tanimura

abstracted Jane Tanimura, Still Separate and Still Unequal: The Need for Stronger Civil Rights Protections in Charter-enabling Legislation, 21 Southern California Review of Law & Social Justice 399 -429 (Spring 2012) (232 Footnotes)

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Jane TanimuraUltimately, the failure of charter schools to realize their integrative potential can be attributed to three sources: the nature of charter schools themselves, lack of civil rights guidance from the federal government, and inadequate civil rights protections by state legislatures.

First, charter schools reinforce inequality as a result of a self-selection bias. Because they are competitive, they are prone to excluding various classes of people in the absence of an explicit commitment to diversity. As a result of their ambitious programs and additional financial resources from corporate sponsors, charter schools often attract the most motivated students in poor neighborhoods and consequently leave the public schools in the same neighborhood worse off because they have lost some of their highest achieving students. Moreover, charter schools exclude those who do not have access to the educational marketplace because they do not have contact with the social networks through which information regarding school quality is exchanged. A parent may never become aware of the opportunity to apply to a charter because of language barriers or lack of contact with other parents whose children attend the charter. Additionally, even if a student applies to a charter, there is no guarantee that he or she will be able to attend, especially if admission is based on a lottery system. Certain kinds of students, especially those with special needs, may also be dissuaded from applying to charters. A number of studies have shown that that they tend to enroll fewer students with disabilities than regular public schools in part by employing counseling mechanisms during the admissions process that deters students who participate in special education programs.

In spite of these facts, the need to counteract the tendency for charters to exclude various groups of people has virtually escaped the federal gov *416 ernment's radar. During President George W. Bush's administration, guidance on charter school compliance with civil rights policy was archived and, since then, the Office of Civil Rights and Department of Education have not been directed to conduct studies on charter schools and civil rights. Nor does what little guidance that the federal government does provide actually encourage integration. Current direction from the Department of Education permits charter schools receiving funding under the Public Charter Schools Program to set test score and grade point average cut-offs as well as parental participation for admission. These requirements have the effect of limiting access for groups of students who do not meet that minimum criteria and therefore make it difficult to achieve a racially and socioeconomically diverse student body.

States have likewise been ambivalent at addressing the problem. Although diversity provisions are present in all forty states and the District of Columbia, which all allow charter schools, they tend to be ineffective at promoting integration. These provisions can be classified into three major categories: (1) a provision of general non-discrimination; (2) a requirement that new charter schools do not interfere with an existing desegregation order; and (3) a provision that permits or requires affirmative action.

The first category of general non-discrimination offers only a vague commitment to civil rights policy that is likely to be difficult to enforce. The second category, which requires charter schools to show that their existence will not negatively affect current desegregation orders, may have *417 less of an impact as desegregation plans end. The third category is probably the strongest and varies depending on whether a state requires or permits affirmative efforts to encourage diversity. For example, California will deny a charter petition if a school board does not reasonably specify the means by which the school will reflect the racial and ethnic balance of the general population living in the school district. Additionally, other states such as Hawaii require a charter application that includes a plan for identifying, recruiting, and selecting students that is not exhaustive, elitist, or segregative.

Although these laws in varying degrees show some appreciation for diversity, the wide differences among the states are in stark contrast to the much stronger civil rights protections afforded to magnet schools, another type of school choice that was originally implemented in order to help districts achieve integration. Like charters, magnet schools are typically focused around specialized themes, which are designed to attract student enrollment from more distant areas of the district. However, unlike charters, magnet schools are still subject to district regulations.

Magnet schools have been more successful than charters at achieving diversity. On average magnet schools are composed of student populations that are 31% white and 63.5% low-income. This is due in part to the strong civil rights provisions that are part of all magnet programs, including the option of free transportation and outreach to all racial, ethnic, socioeconomic, and linguistic groups. Moreover, magnet fiscal incentives are directly tied to school diversity--in order to receive funding, magnets are required to design a plan emphasizing the reduction or prevention of racial isolation. Despite their success at achieving diversity, magnets *418 still receive far less in federal funding than do charters.

Nevertheless, in spite of the negative data regarding charter schools, there is no indication that their popularity will subside any time soon. In its 2012 budget request to the Department of Education, the Obama administration asked for $372 million to expand educational options, which includes support for charter schools. U.S. Secretary of Education Arne Duncan also made clear that states that did not lift their current caps on charter schools would be at a serious disadvantage for receiving federal stimulus money. Charter schools are here to stay.


Diverse and high achieving charter schools do exist and it is these types of schools that should be the ideal for which is strived. But how do we encourage the creation of diverse schools? In figuring out how to better serve the goal of integration, two questions arise: to what extent can charter schools ensure diversity in their own student bodies and how can states and the federal government encourage charters to be diverse?

A. How Charters Can Create Diverse Student Bodies

As a threshold issue, it is important to keep in mind that charter schools, like their traditional public school counterparts, are also constrained by the Supreme Court's equal protection jurisprudence that was discussed earlier in Part II. Because charter schools receive federal funding from the Department of Education, they are subject to the mandates of Title VI of the Civil Rights Act of 1964, which prohibit any program or activity that receives federal financial assistance from discriminating on the basis of race, color, or national origin. This constraint is especially germane to a charter school's lottery process, an admissions regulation required by federal law in cases in which a school finds itself having more applicants than available spots. According to the Department of Education's non-regulatory guidelines, the lottery need not be completely random *419 and can be weighted so long as they comport with the Civil Rights Act, Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Equal Protection Clause, and applicable state law. Therefore,charters must abide by the analysis announced inParents Involved and cannot rely solely on race to determine the composition of their student body. In addition, charters may also be constrained by state laws that prohibit the use of race in student assignment plans. For example, California's state constitution prohibits the granting of “preferential treatment to, any individual or group on the basis or race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Michigan's state constitution similarly prohibits school districts from using affirmative action plans that would assign advantages on the basis of race.

Despite such restrictions, several charter schools have been able to work around the limits ofParents Involved and state laws, and still successfully achieved racial and socioeconomic diversity in their student bodies while avoiding the use of racial classifications. Common among many of these diverse charter schools is an explicit commitment to diversity in their mission statements as well as the use of socioeconomic status as a weighted component in their lottery systems. Use of socioeconomic status is rooted in the idea that plans that promote socioeconomic diversity will accordingly result in more racially diverse student bodies given that socioeconomic disadvantage is often linked to race.

At this point, it is helpful to examine the mission statements and lottery processes of the successfully diverse charter schools referenced in Part III.A and understand how integration is achieved at these schools.

High Tech High

High Tech High's mission “is to develop and support innovative public schools where all students develop the academic, workplace, and citizenship *420 skills for postsecondary success.” Its goals include “serv[ing] a student body that mirrors the ethnic and socioeconomic diversity of the local community” and “increas[ing] the number of educationally disadvantaged students in math and engineering who succeed in high school and post-secondary education.”

High Tech High is strategically located in downtown San Diego, an area outside any particular residential neighborhood. Although the school is in a mainly white section of the city, it is only a short bus or trolley ride from most low-income neighborhoods. Through a grant with the U.S. Department of Labor, bus service is offered to students commuting from those low-income, predominantly black and Latino communities. Students living in higher-income areas of the city commute to school on their own and are willing to make the trek because of the school's stellar academic reputation.

As part of their admissions process, the school uses a computerized lottery based on an applicant's zip code in order to create a student body that represents all areas of the city. The lottery system also assigns a statistical advantage to applicants who qualify for free or reduced-price lunch.

Denver School of Science and Technology

Denver School of Science and Technology's mission is:

[To provide students with] a diverse student body with an outstanding secondary liberal arts education with a science and technology focus. By creating powerful learning communities centered on core values and a shared commitment to academic excellence, [the school aims to] . . . increase the number of underrepresented students (girls, minorities and economically disadvantaged) who attain college science and liberal artsdegrees. *421

In determining admissions for their middle and high schools, the Denver School conducts two separate lotteries, one for Morgridge Scholars (students who qualify for free or reduced-price lunch) and another for the general population. The number of students in Morgridge Scholars equals the amount needed to make up 40% of the entering class. General population students fill the remaining spots.

Larchmont Charter School

Larchmont Charter School was founded by a handful of parents who were committed to creating an alternative neighborhood school that would reflect the rich diversity of the community. The mission of Larchmont Charter School “is to provide a socioeconomically, culturally and racially diverse community of students with an exceptional public education.” In working towards this goal, the school tries to ensure a diverse pool of applicants from which to draw its student body. To achieve this, the school conducts extensive outreach by distributing flyers throughout the area and finding champions in the community who will recruit parents to apply.

The school's lottery process is conducted through a staggered drawing that prioritizes three different groups: (1) siblings of current students; (2) children of founding parents, board, and staff; and (3) applicants who qualify for free and reduced-price lunch. Available spaces in each gradelevel*422 are assigned based on lottery numbers in the order of these priorities.

Ultimately, what all three schools have in common is an explicit commitment to a broader conception of diversity, one that is cognizant of both raceand socioeconomic status and taps into the kind of holistic diversity thatParents Involvedimagined. Moreover, what helps these schools to realize this goal is a workable plan that takes into account school accessibility to different communities, creation of a diverse applicant pool, and a weighted lottery process that is based on socioeconomic status.

Use of socioeconomic status as a proxy to race is not just limited to charter schools--traditional public schools seeking to diversify their student bodies have likewise taken socioeconomic status into consideration when assigning students to schools. Today, about seventy districts have socioeconomic integration policies. Moreover, this move toward using socioeconomic status instead of race has led to successful results. In most cases, low-income students in school districts, which account for socioeconomic status in their assignment plans, are doing better than low-income students in segregated school districts.

Nevertheless, targeting socioeconomic status alone will not always result in racial diversity. This is especially true for large urban school districts with high concentrations of low-income students. The case of San Francisco Unified School District is one cautionary example. The school district, which was once under a court-ordered desegregation planthat *423 mandated that no racial or ethnic group could constitute more than 45% of the student enrollment at any regular school, has since adopted a plan that uses a diversity index that considers socioeconomic status instead of race to assign students who choose oversubscribed schools. Although the hope was that the plan would continue to foster racial diversity, school officials have found that the school district is actually resegregating. The number of schools in which 60% of students belong to the same racial group in one grade has risen from thirty schools in the 2001-2002 academic year to fifty schools in 2005-2006.

Use of socioeconomic status is also problematic because it is jurisprudentially disingenuous. On the one hand, districts that want to promote the worthy goal of integration in their schools have been forced into a position of having to redefine how they may promote diversity without using their most obvious tool-- race. Employing socioeconomic status, which is often correlated with race, is an easy and obvious shortcut to achieving the same desired results. On the other hand, when the intent remains the same and socioeconomic status is merely acting as a euphemism for racial classifications for which the Court has already expressed its distaste, it is questionable whether such plans are really tapping into the kind of race-neutral means of achieving diversity that Justice Kennedy imagined in his concurrence inParents Involved.

*424 For these reasons, it may be more prudent for charter schools to expand their concept of diversity as they work toward creating integrated student bodies. As discussed above, even though it is impractical for charter schools to adopt the type of time-consuming application review that is used in higher education settings, their lottery processes can still be changed in a way that is race-conscious, and therefore more exacting in its pursuit of racial diversity, but still nuanced such that it would pass constitutional muster underParents Involved. Ideally, in a charter school's lottery process, a statistical advantage would be assigned to a type of applicant who is most likely to be underrepresented in the school's population. This would be similar to High Tech High's lottery system, which accounts for a student's zip code while also conveying a statistical advantage for low-income students.

For example, a charter school located in a predominantly white middle-class neighborhood may ascribe statistical advantages to an applicant who is an English language learner, qualifies for free or reduced-price lunch, comes from a single parent home, or lives in a different geographic area. Moreover, in states without laws that explicitly prohibit public schools from giving preferential treatment on the basis of race, race may also be a factor in this formula so long as it is one factor among many and not the most significantly weighted component. This race-conscious, multi-factor consideration would more likely succeed in achieving racial and socioeconomic diversity than use of socioeconomic status alone.

However, in order to legitimize this race-conscious method, pursuant toGrutter, charter schools may also have to define a point at which their race-conscious policies must end. Part of the problem inParents Involvedwas that there was “no logical stopping point” to use of the school districts' race-conscious plans. InGrutter, the Court announced a twenty-five year goal in which law schools like the University of Michigan *425 would no longer need to use race as a criteria to further the interest of diversity. Similarly for charter schools, that twenty-five year ending date may also be necessary.

Yet another alternative is for charter schools to purposefully locate themselves in diverse neighborhoods. For example, Larchmont Charter School, which is situated in a highly diverse area in Los Angeles, uses its location to draw upon a broad and diverse cross-section of its community. For those charters located in more homogeneous neighborhoods, providing access to free transportation should also be made available to ensure that students from more distant areas of the district have the opportunity to attend. Although transportation is costly, charter schools that receive substantial amounts of private funding may be able to afford this option. Moreover, to counter the self-selection bias that is characteristic of charter schools and to ensure that students from a variety of backgrounds apply, it is crucial that all charter schools conduct outreach with the community at large to raise awareness about their schools.

B. How States and Federal Government Can Support Diversity

In order for charter schools to have the incentive to create diverse schools, states must push them in that direction. As discussed earlier in Part III.A, some states have already acknowledged the importance of diversity in their charter enabling legislation by requiring an application for a charter start-up to specify a plan for identifying, recruiting, and selecting students that is not “exhaustive, elitist, or segregative.” Other states, like California require that a petition specify the means by which a charter plans to achieve a racially balanced student body. The plan must be reflective of the general population of the area in which the charter is located *426 and gives the school district's governing board the authority to deny the petition if it fails to set forth specific facts to demonstrate its plan. At the very least, all states should similarly commit to these requirements and additionally grant preference to petitions that demonstrate a commitment to creating diverse and inclusive schools and not just schools that will cater to academically low-achieving students.

However, whether states will independently enact such legislation is debatable. In order for all states to uniformly move in this direction, the federal government--which controls the purse strings that enable the start-up and operation of charter schools--must also intervene. More specifically, federal legislation should mimic guidelines governing magnet schools by tying public funding for charter schools to school diversity.

Current federal legislation governing magnet schools states the purpose of magnet schools as assisting “the elimination, reduction, or prevention of minority group isolation in elementary schools and secondary schools with substantial proportions of minority students.” In expecting magnet schools to serve this function, the federal government requires the petition to establish a magnet school to include a description of how a federal grant “will be used to promote desegregation, including how the proposed magnet school programs will increase interaction among students of different social, economic, ethnic, and racial backgrounds.” In effect the statute conditions federal funding on creation of a school environment that will foster diversity and inclusion.

Current federal charter legislation, however, has a markedly different tone. Nowhere in 20 U.S.C. 7221, which addresses the purpose of charter schools, is there any reference to any civil rights ideals. Rather, the stated purpose of this legislation is to merely:

[I]ncrease national understanding of the charter schools model by--

(1) providing financial assistance for the planning, program design, and initial implementation of charter schools;

(2) evaluating the effects of such schools, including the effects on *427 students, student academic achievement, staff, and parents;

(3) expanding the number of high-quality charter schools available to students across the Nation; and

(4) encouraging the States to provide support to charter schools for facilities financing in an amount more nearly commensurate to the amount the States have typically provided for traditional public schools.

Subsequent sections also fail to mention any obligation to promote the “increased interaction” that is characteristic of the magnet school provisions. Most notable is 7221(b), which specifies the minimum application requirements for a charter, and only asks that an application for a federal grant include information about management operations, parental involvement, community outreach, and how a charter's curriculum will meet a state's student achievement standards. There is no requirement that an application identify how the charter school will achieve a diverse student body.

Amending the federal government's charter enabling legislation to more closely resemble the provisions that govern magnet schools will go a long way toward pushing states to also change their own laws in order to more closely align with federal law and to directly compel petitioning charter schools to craft plans that will encourage diversity. Specifically, the federal law can be amended in two ways. Section 7221, which sets out the purpose of legislation, can be changed to acknowledge the integrative promise of charter schools. For example, 7221 could be appended to read more like 7231(a)(4)(A) of the magnet school provision: It is the purpose of this subpart to increase national understanding of the charter school model by . . . (5) fulfilling the potential of charter schools to foster meaningful interaction among students of different social, economic, ethnic, and racial backgrounds. Furthermore, 7221(b), which specifies conditions for a federal grant, should be amended such that a grant is made conditional on a plan that details how the school will create a diverse student body.

Lastly, in addition to changes in federal legislation that will be more demanding of charter schools to be diverse, these laws must be enforced in order to be effective. The Office of Civil Rights has not issued guidance on the relationship between charter schools and federal civil rights law *428 since 2000. An updated set of guidelines as well as federal and state oversight will be needed to ensure that these civil rights requirements are enforced.

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J.D. University of Southern California (2012).