Despite the Supreme Court’s 1954 mandate to desegregate schools, school segregation across the country has only deepened over the past decades. A recent UCLA Civil Rights study found a massive increase in racial isolation in U.S. schools since the late 1980s, to the point where schools are now more segregated than they were in the 1960s.1 The costs of segregation for students are as high as they have ever been: attendance in racially isolated schools is linked to various negative educational outcomes, including lower student achievement results, higher dropout rates, lower college completion rates, less qualified teachers, high rates of teacher turnover, less challenging curriculum, and higher rates of student discipline.2 Numerous authors have urged the incoming Biden administration to address this issue head-on, by using tools such as the restoration and expansion of the Civil Rights Data Collection and reinstating rescinded Obama-era guidance and discretionary school integration grants. There is also hope that Congress3 will pass the Strength in Diversity Act, which was passed by the House of Representatives in the previous Congress and which would offer planning and implementation grants for integration efforts, or pass a similar provision as part of the appropriations bill. The bill passed by the House Appropriations Committee in July 2021 includes $100 million for a similar grant program to support integration.4) While these and other steps are crucial, they might take a while to implement, and most would not directly require dismantling of the entrenched systems that have sustained school segregation for so long.

The start of the new administration brings an opportunity for a new era of vigorous, proactive federal civil rights enforcement.5 The good news is that the federal government already has the authority and the tools to take immediate, meaningful steps that could significantly decrease the extent of segregation in American schools. This report proposes a framework for how the U.S. Department of Education’s Office for Civil Rights (OCR) and/or the Department of Justice (DOJ) could finally exercise their full authority to confront school segregation under the disparate impact provision of Title VI of the Civil Rights Act of 1964.6

Without waiting for the passage of new legislation or the authorization of any new grants, OCR and/or the DOJ could make significant progress towards integrating schools, either via a proactive docket initiating new investigations or by investigating comprehensive complaints filed by advocates.

Without waiting for the passage of new legislation or the authorization of any new grants, OCR and/or the DOJ could make significant progress towards integrating schools, either via a proactive docket initiating new investigations or by investigating comprehensive complaints filed by advocates.7 By building on the recommendations of student activists, OCR and the DOJ could set a powerful agenda for desegregation using their existing ability to open proactive “compliance reviews” or directed investigations8 of districts and states, applying well-developed disparate impact analysis under Section 6029 of the regulations implementing Title VI of the Civil Rights Act of 1964.10 Individuals and groups could also file complaints following the framework recommended below.

The recommendations in this report are inspired by a student-created integration framework—the “Five Rs of Real Integration”—and rooted in past use of Title VI as a tool for enforcing educational equity. We trace how this framework, rooted in Supreme Court and Title VI precedent, can form the basis for expanded federal Title VI enforcement focused simultaneously on three of the “Five Rs”: resources, race and enrollment, and restorative justice. We use New York State as a model to propose how OCR/DOJ could apply this strategy in states across the country as the cornerstone of a proactive agenda under the new administration. This model could also be used in response to complaints against states or districts where a multi-pronged review of two or more of the “R’s” would yield a comprehensive remedy more capable of promoting “Real Integration” than a more traditional investigation into only one of these issues at a time.

The “Five Rs of Real Integration” and Title VI

The “Five Rs of Real Integration” framework, developed by the high school students of IntegrateNYC, offers a roadmap for a proactive integration agenda. The Five Rs approach lays out principles for school integration that does more than simply bring bodies together into the same buildings and classrooms. It accomplishes this by acknowledging the myriad of other factors in our education system that function in concert to exclude students of color. The Five Rs are the following:

  1. Race and Enrollment: all schools should be diverse, inclusive, and reflective of the larger population served by the school, district, or community.
  2. Resources: all schools should be provided with equitable resources, including: sufficient numbers of qualified staff; updated curricula; arts, extracurricular, and sports offerings; advanced courses; guidance counselors; nutritious food; support for failing students and those with disabilities or language needs; safe, orderly buildings; appropriate class sizes; and up-to-date books, libraries, technology, and labs.
  3. Relationships: all schools should respect the identities of all students, focus on the power of different backgrounds, and build relationships between students of different identities by embedding culturally responsive practices across the school environment.
  4. Restorative Justice: all schools should fight the school-to-prison pipeline using restorative justice practices, be free from police and military presence, and should put an end to exclusionary discipline practices.
  5. Representation: all schools should be staffed with faculty, staff, and administrators who reflect their student body and are trained in culturally responsive practices and restorative justice.

By combining these five factors, the Real Integration framework presents a vision of fully integrated schools. It defines integration as requiring more than just admissions changes: the equitable distribution of resources, the implementation of restorative justice practices to eliminate the well-documented “cradle-to-prison pipeline” that results from inequitable application of school disciplinary practices, the adoption of culturally responsive approaches, and the hiring of a representative school faculty, administration, and staff are also necessary to create schools that offer meaningful educational equity to students, and especially to those who have been marginalized by exclusionary educational systems and practices.

The Five Rs approach is not new to OCR, DOJ, or the federal courts. Half a century ago, the U.S. Supreme Court’s vision of what the end of school segregation should look like also went beyond the mere movement of bodies. In 1968, it outlined what have become known as the Green factors11—faculty, staff, transportation, extracurricular activities, and facilities—which established the principle in federal jurisprudence that the constitutional violation of school segregation would not be remedied until all its “vestiges” had been eradicated.12 Federal courts today still use the Green factors to determine whether school desegregation orders should be lifted.13 OCR and the DOJ use these factors to address the multiple harms of racial isolation in schools, including “fewer effective teachers, higher teacher-turnover rates, less rigorous curricular resources (e.g., college preparatory courses), and inferior facilities and other educational resources.”14 OCR has often taken on Title VI investigations involving many of these factors individually—but generally not at the same time in a single state or district.

Three of IntegrateNYC’s Rs—Race and Enrollment, Resources, and Restorative Justice—fall well within established OCR Title VI precedent in the areas of school admissions, student enrollment and access to high-track and college and career readiness programs,15 resource comparability,16 and differential discipline.17 While the other two Rs (Representation and Relationships) can also fall under OCR’s jurisdiction—OCR has frequently accepted cases that address faculty diversity and could possibly address aspects of culturally responsive curricula—we suggest focusing on Race and Enrollment, Resources, and Restorative Justice first, as they more clearly align with past and existing OCR guidance and proactive agendas.

In the past, OCR has investigated each of these areas in numerous schools or districts, either in response to complaints or proactively.18 However, OCR has never combined these issues into a comprehensive, proactive school integration agenda capable of leveraging a widespread shift in existing patterns of inequity.19 To do so, OCR must finally activate the full potential of the disparate impact provision of Title VI by targeting states as well as districts for combined reviews of state-based policies and practices that disproportionately disadvantage students of color in the areas of Race and Enrollment, Resource Equity, and Restorative Justice.

Past Use of Title VI in Education

Title VI explicitly prohibits any “person in the United States” from being “excluded from participation in, denied the benefits of, or . . . subjected to discrimination under any program or activity receiving Federal financial assistance” because of their “race, color or national origin.”20 The terms “program or activity” include “all of the operations” of state or local governments, any part of which receive Federal financial assistance.21

Title VI prohibits so-called intentional discrimination, but it has been called the “sleeping giant” of civil rights tools because it also proscribes state actions that create so-called “de facto” school segregation which is not mandated in a law or policy (i.e. “de jure” segregation), but rather has come about “in fact” due to a variety of conditions and choices or governmental inaction.

Title VI prohibits so-called intentional discrimination,22 but it has been called the “sleeping giant”23 of civil rights tools because it also proscribes state actions that create so-called “de facto” school segregation,24 which is not mandated in a law or policy (i.e. “de jure” segregation), but rather has come about “in fact” due to a variety of conditions and choices or governmental inaction.25 The regulations implementing Title VI also prohibit recipients26 of federal financial assistance from using “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.”27 In other words, the disparate impact provision of the Title VI regulations prohibits any state or local governmental entity from maintaining policies or practices that exclude or harm people of color, including in schools, regardless of whether a court would find these policies or practices to be intentional or unconstitutional. In general, “practices” can include a wide range of formal or informal actions or inactions on the part of the governmental entity.

Since 2001, when the Supreme Court28 invalidated private rights of action29 for Title VI disparate impact claims, federal agencies remain the only entities with the authority to investigate school policies for their discriminatory impact, regardless of intention or design. As such, OCR and the DOJ have the sole authority to enforce Title VI disparate impact claims over schools, districts, and state education agencies.30

OCR has used the disparate impact approach to tackle equitable distribution of resources within school districts, patterns of differential discipline, access to gifted and talented and other high-track programs, as well as over-representation of students of color in special education placements. Its analysis is summarized in a compliance review of racially disparate disciplinary outcomes in the Milwaukee public schools:

To determine whether a school district’s disciplinary process has an unlawful disparate impact on the basis of race, color or national origin, OCR examines: (1) whether a . . . policy that is neutral on its face has an adverse impact on students of a particular race, color or national origin; (2) whether the policy is necessary to meet an important educational goal; and (3) if so, whether there is a comparably effective alternative policy or practice that would meet the district’s stated educational goal with less of a burden or adverse impact on the disproportionally [sic] affected group.31

Whenever a disparate impact is alleged, OCR has applied this analysis to all the different policy areas listed above, with particular focus on the necessity and legitimacy of the educational policies driving the exclusion of students of any given race or national origin. The agency attempts to answer these questions with statistical analysis of available data, reviews of how individual students have been impacted by the policy or practice in question, and extensive interviews of faculty, staff, students, and administrators. The focus is targeting the specific source of any disproportionality found, understanding the legitimate educational purpose of the policy or practice causing the disparities, and determining whether a less discriminatory alternative is possible. Once it answers these questions and finds a Title VI violation (usually due to either a lack of legitimate educational purpose, or uneven or educationally inappropriate application of a legitimate policy or practice), OCR works with the recipient to determine an acceptable resolution.32

For at least the past two decades, OCR has prioritized a number of issues related to within-school or between-school segregation in systematic proactive reviews. For example, under the Clinton administration’s so-called “Minorities in Special Education” reviews, OCR selected school districts nationwide with evident disproportionality in rates of restrictive special education placements for students of color as compared to White students.33 Without waiting for complaints to be filed, OCR conducted comprehensive district-wide investigations to uncover and correct the sources of the disparities. Similarly, the underrepresentation of students of color in gifted and talented and advanced programs, along with their overrepresentation in exclusionary discipline practices, were also the subject of these reviews under both the Clinton and Obama administrations.34

Case Study: Combining Title VI and a 3R Framework for Integration

Despite its prioritization of the impact of admissions, resources, and discipline policies on students of color in individual districts, OCR has never combined these issues to construct an effective, large-scale Title VI-based pro-integration agenda, on either the district or state level.35 It is notable that since at least 2013, none of OCR’s state-level investigations that resulted in violation findings or resolutions have focused on race-based allegations.36 This report proposes that OCR and DOJ develop a plan to tackle school segregation in applicable states with a coordinated focus on three of IntegrateNYC’s five Rs: Race in Enrollment, Resources, and Restorative Justice. Recently, the National Coalition on School Diversity offered, broadly, the same recommendation to the new administration’s OCR.37 We seek to elevate that recommendation and offer specific examples of what this strategy could look like, by using New York State as an example for a framework for state-based investigations that can also be adapted to individual school districts. We recognize that Congress has historically hamstrung this agency through decades of underfunding, and that the expansive investigations proposed would require adequate levels of staffing.38 They also would require a renewed commitment to enforcement of the civil rights laws, which lagged significantly during the Trump administration.39

Due to various Supreme Court decisions upholding most cases of school segregation40 and unequal funding across district lines,41 states across the nation have been able to maintain legal segregation using the justification of school district borders; this segregation has increased in the ensuing decades.42 None of these cases, however, were decided on Title VI grounds, which remains a separate and valid legal pathway for addressing the Green factors. Title VI explicitly prohibits recipients of federal funding, including states and localities, from maintaining policies that create and exacerbate the denial of access to educational opportunities on the basis of race, color, or national origin. It is high time for OCR and the DOJ to fulfill their mandate and promise by actively confronting these policies.

In New York State, where school district boundaries mostly correspond with towns rather than counties, racial segregation and resource inequity is often an inter-district phenomenon.43 New York segregates its Black students more than any other state in the country (65 percent of Black students in New York attend “intensely segregated minority schools”)44 and “ranks second in the nation in school funding inequity” (poor districts spend an average of over $10,000 less per student than wealthy districts).45 Higher-income districts in the state also are only 5 percent Black or Latino, who represent 38.5 percent of the lowest-income districts.46 Meanwhile, in recent years, schools in New York State suspended Black students at more than four times the rate of White students.47

The interplay of these three factors—segregated enrollment, funding inequity, and differential discipline—on the state level work together to result in the widespread exclusion of students of color from the kinds of educational opportunities routinely provided to White students.

The interplay of these three factors—segregated enrollment, funding inequity, and differential discipline—on the state level work together to result in the widespread exclusion of students of color from the kinds of educational opportunities routinely provided to White students. Because of how New York State draws school district boundaries, districts are often relatively racially and economically isolated, with Whiter and wealthier school districts under no legal obligation to share their resources with poorer districts next door.48 Likewise, because statewide rates of discriminatory disciplinary practices are rooted in state regulations and other state practices, addressing differential discipline in individual districts, while essential, will have less of an impact than directly addressing the causes at the state level.

In New York, as elsewhere, the state defines school funding formulae, draws school district lines, and establishes discipline-related policies that districts are required to follow. Thus, even if OCR were to expand the number of resource comparability and discipline compliance reviews across the state, focusing on districts alone will not suffice to fully correct racial disparities directly tied to the state’s failure to address the systemic denial of educational opportunities for Black and Latinx students. In other, similar cases where these kinds of actions create patterns of exclusion across states, rather than investigate school districts who in many cases are following or responding to state requirements, OCR and/or DOJ would have the greatest impact by acting on a state-wide basis.

It is well within OCR’s jurisdiction and common practice to investigate state-wide violations committed by state education departments.49 For example, OCR is currently investigating the Indiana Department of Education for state-wide denials of appropriate services to students with disabilities,50 and in 2008, it joined with the DOJ to investigate the Arizona Department of Education’s compliance with its legal obligation to identify its English Language Learner (ELL) students.51 With increased levels of staffing52 and resources, OCR could use its authority under Title VI to investigate state-wide disparate impact violations and pursue state-wide remedies in the areas of student enrollment, school resources, and discipline policies. Large school districts and charter schools or networks that segregate students within their borders, like the New York City Department of Education,53 could also receive separate investigations involving at least some combination of the Five Rs, which could proceed alongside state-based investigations.

Informed by the three Rs, we apply a model Title VI disparate impact analysis to disparities in Race and Enrollment, Resources, and Restorative Justice in New York State, as an example of how an investigation of these three issue areas together could engender transformative reform across a state that remains the most segregated for Black students54 in the nation.

1. Race and Enrollment

School district boundaries are not natural or inevitable55: they are drawn according to state policies.56 Nearly every state constitution includes an education clause that “explicitly puts the duty to provide education on the state,”57 and school district boundaries are created by state law and overseen by state education departments.58 In the 1960s,59 the New York State legislature placed a check on the state education commissioner’s power to redraw districts60 by allowing residents to petition for a referendum vote on the proposed change.61 However, such laws do not shield states from Title VI enforcement.62

School district borders are like any other criteria or method of administration maintained by states, and thus are subject to OCR’s Title VI jurisdiction. The U.S. Supreme Court has also characterized the creation of school districts as a power within the “State’s discretionary authority.”63 Although the Court infamously concluded in Milliken v. Bradley64that there was not enough evidence of discriminatory intent in the state of Michigan’s creation of school districts for a constitutional violation, in other circumstances the Court and lower federal courts have required states to redraw school districts to remedy constitutional harms.65

The way New York State tightly draws small school districts is directly responsible for the extent of segregation between districts. New York houses 18 percent of the nation’s most segregative school district borders, including the biggest gulf in the nation—the forty-one-percentage point difference between Rochester and its neighbor Penfield Central,66 one of fifty-two school district borders that mark a poverty divide of at least twenty percentage points.67 In 2014, the UCLA Civil Rights Project found that New York State’s schools were the most segregated in the nation, with a total of 59 out of 65 upstate districts in 2010 being either predominantly White or predominantly non-White.68 Despite the tidal wave of attention garnered by this report, little has changed: the Civil Rights Project reaffirmed this finding in 2020.69

Take the school district in Poughkeepsie and its wealthier and Whiter neighbor, Spackenkill. Spackenkill, which is only 38 percent non-White, has been allowed to remain independent from Poughkeepsie, which is 92 percent non-White.70 Poughkeepsie’s students have a poverty rate over four times as high as Spackenkill’s, with more than a third less revenue per pupil from local sources.71 But because New York State allows districts on their own to decide whether and when to merge with other districts, the districts are still separate.

Racial disparities between districts are also particularly evident within New York City and significantly contribute to segregation on the elementary and middle school levels.72 While managed by a single department of education, local school districts within the city help to maintain racial and economic segregation among elementary and middle schools. On the high school level, the failure by the state to address the racialized elements within the high school placement algorithm is a significant contributor as well.73

The findings of the Civil Rights Project and EdBuild establish the prima facie disproportionality under the first prong of the disparate impact analysis needed for OCR to open a proactive case against New York State. OCR could begin its investigation with an analysis to confirm these data, and examine how the state’s mechanism for drawing school district boundaries adversely affects students of color, given both the extreme segregation and disparate funding levels.

Assuming its investigation confirms earlier findings, OCR would require a legitimate educational justification for school district boundaries based on town lines, (as opposed to county lines, for instance), especially given the funding formula’s impact on high-needs, non-White school districts. OCR would weigh the many plausible explanations for this scheme, such as maintaining a sense of community and local control over schools. The question would be whether these reasons would have a greater educational benefit for students than alternate mechanisms that would be likely to yield a more integrated student body and more evenly funded schools. A comparison to other states could establish a viable, less discriminatory alternative, thus leading OCR to find a Title VI disparate impact violation and require the state to take corrective action.

As is typical with its resolution agreements, OCR would not prescribe specific actions, but would require the state to use research-based methodology and stakeholder input to develop a plan to correct any Title VI violations found. There are many steps that New York could take to lessen racial isolation of students without falling afoul of the Supreme Court’s decision in Parents Involved, which prohibited the use of remedies that consider individual students’ races to rectify such isolation. 74 These include Ed Build’s recommendation to shift to county-wide districts, following an approach that is used in many other states with far less inter-district segregation than New York.75 Another possibility is an inter-district choice program that relies on the socioeconomic status of students to promote economic and racial diversity, such as the one used in the Hartford, Connecticut region.

While reforming student assignment mechanisms throughout New York would be an excellent first step, under both the Green decision and the Five Rs of Real Integration framework, this reform alone would not be enough to remedy patterns and practices that have contributed to decades of educational inequity across the state. At a minimum, addressing and correcting resource inequities and reforming exclusionary student discipline factors are also required. We turn to those next.

2. Resources

For years, education advocates have fought to remedy the vast resource disparity among New York State’s school districts. Decades of research reveal that poor children require more school resources to get ahead than middle-class children,76 but in New York, the education funding gap between school districts, which are among the most segregated in the country, is massive.77 A 2020 report by the U.S. Commission on Civil Rights (USCCR) found the “overall average spending per pupil in the highest need districts in the State [was] approximately only two-thirds of the overall average spending per pupil in the wealthiest districts ($17,758 versus $27,845).”

New York’s education funding scheme, which fails to account for the vast disparity in property tax revenues and the higher cost of educating children living in poverty, compounds the impact of the extreme racial and socioeconomic segregation across the state78 on students (mostly of color) who are segregated in high-poverty districts. An Edbuild report published in 2019 found a $4,094 per-pupil spending deficit between poor, majority White districts and poor, majority non-White districts.

New York’s State’s highest court has repeatedly iterated that the state is responsible for its disparate education funding,79 yet the state legislature refused to comply with its own court’s mandate to equitize funds for over a decade (between 2009 and 2021).80 The good news is that this year, for the first time in over a decade, the New York State legislature has pledged to fully fund the Foundation Aid formula81 with $1.4 billion paid out per year for three years.82 Beginning in 2022, school districts will receive these much needed funds in addition to federal stimulus dollars.83

If OCR or DOJ were to investigate New York’s school funding practices, such an investigation would play an important role in ensuring that New York keeps its renewed promise for equitably funding schools. In investigating the disparate impact of the state’s school funding formula, OCR would apply the Title VI analysis laid out above. It would first examine the adverse impact of the formula on students of color to establish that the schools that primarily serve students of color statewide are relatively under-resourced compared to those that primarily serve White students. It would then attempt to discern a legitimate educational justification for any disparities found, along with the existence of a less discriminatory method of funding.84

OCR’s requirements for a remedy could resemble USCCR recommendations and demands from the plaintiffs in New Yorkers for Students’ Educational Rights (NYSER) v. State of New York.85 For instance, OCR could require the state to continue to fully fund its Foundation Aid formula beyond the next three years with a maintenance of equity clause86 and require school counselors, social workers, and other specific support services that are proportional to the number of children at each school living in poverty. Such a remedy would be far more powerful if made in tandem with a review of New York State’s policies regarding Race and Enrollment, due to the state’s establishment of school districts along segregative residential lines. Indeed, if OCR were to review these policies and require the state to design a new student assignment scheme, the state would need to ensure equitable funding of the new process.

3. Restorative Justice

A 2018 report by the New York Equity Coalition found that, outside of New York City, New York State schools suspended Black students at more than four times the rate of White students, with 11.4 percent of all Black students being given at least one out-of-school suspension, as compared to 2.7 percent of all White students.87 Across the state, there are even greater disparities between Black and White children in elementary school, between Black and White female students, and between Black and White students in districts with small numbers of low-income students. For example, at the elementary and middle school levels, schools outside New York City were 7.7 times more likely to suspend Black female students than White female students; and overall, New York State schools suspend Black male high school students at a greater rate than any other group of students.88 Furthermore, New York City suspended Black students at more than five times the rate of White students.

New York State is nineteenth among the forty-three states with the largest Black–White gap when it comes to school suspensions.89 The harms of school suspensions are well documented: they trap children in cruel cycles of instructional loss and exclusion from education and have been shown to play a key role in the school-to-prison pipeline.90 OCR has investigated numerous individual districts in the state for racially disparate rates of discipline. The New York State Attorney General’s Office has also entered into consent decrees due to disparate discipline of students of color in both the Albany and Syracuse school districts.91

To address overly punitive and discriminatory disciplinary policies and practices across New York, the third component of a 3Rs-based investigation would focus on state-wide practices that influence the disproportionate exclusion of students of color. This investigation should target specific policies and practices in New York State that have been linked to the disparate punishment of Black students. For instance, State Education Law §3214 permits schools to suspend any student who is “insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others”—language vague enough to permit suspending students for virtually any conduct.92 Such vague language contributes to disproportionality in the suspension and detention of Black children, who are suspended at even greater rates for subjective infractions like insubordination and using profanity.93 Through its commissioner’s decisions, the New York State Department of Education (NYSED) upholds §3214’s broad enforcement capability94 as well as excessive punishments.95

In addition, NYSED has no standardized methodology for measuring demographic disparities in discipline at both district and school levels, nor any requirement that districts with discriminatory rates of discipline develop remedial plans to reduce such disparities.96 It also does not require the use of restorative justice practices state-wide, despite recommendations by the New York State School Boards Association and others for a dramatic shift away from punitive disciplinary practices and towards restorative justice,97 and the gradual, often voluntary adoption of such practices in various districts across the state.98 Although NYSED has taken many positive steps towards improving school climate for students of color,99 it has failed to meaningfully address equity in school discipline. Thus in a post-pandemic world, in the absence of state and federal oversight and accountability, many educators will resort to the “former quo” and likely over-punish students as they transition back to school full time.

OCR has frequently investigated districts for racially disparate patterns of discipline, using the Title VI disparate impact provision.100 As explained more fully above, the inquiry in these investigations follows the same analysis as all other disparate impact cases, and homes in on the following questions: 1) Were different racial groups disciplined more harshly or frequently than other groups for similar behavior?; 2) Was the difference attributable to a particular policy or practice?; 3) Was the policy or practice necessary to meet an important educational goal?; and 4) If the policy is necessary, are there less discriminatory alternatives that would serve the same goal?101

In answering these questions, OCR begins its discipline investigations with an analysis of statistical and quantitative disparities between the disciplinary consequences imposed on groups of students by race and national origin. These analyses closely scrutinize school and district discipline data to pinpoint policies and practices linked to harsher disciplinary penalties for different groups. They begin by examining the categories of code of conduct violations with the highest rates of disproportionality between demographic groups; within these categories, they seek to identify similarly situated students (e.g. those who engaged in similar behavior with similar disciplinary histories) and compare the consequences administered to each group. They then look at the code of conduct to determine whether the consequences were administered consistently with its requirements, and if not, whether there was a legitimate reason for any discrepancies found. Finally, they look at the conduct code itself to determine whether it is discriminatory on its face, or whether it is so vague as to be open to the sort of subjective interpretation liable to lead to disparate outcomes.102

As explained more fully in the OCR/DOJ Discipline Dear Colleague Letter,103 when a discipline-based disparate impact violation is found, districts will be given the option to implement a host of remedies intended to correct the cause(s) of the violation. A key remedy often required is revising discipline policies to provide clear definitions of infractions to ensure that consequences are fair and consistent. These revisions are intended to work in conjunction with the implementation of a comprehensive set of supports for struggling students, school climate improvement strategies, and staff training, amongst other efforts, including oversight of the systematic exclusion of students of color from advanced coursework. In making recommendations for disciplinary code revisions, OCR and DOJ:

will look carefully at, among other things, a school’s definitions of misconduct to ensure they are clear and nondiscriminatory, the extent to which disciplinary criteria and referrals are made for offenses that are subjectively defined (e.g., disrespect or insubordination), and whether there are safeguards to ensure that discretion is exercised in a nondiscriminatory manner. In addition to establishing a system for monitoring all disciplinary referrals, the school should have a system in place to ensure that staff who have the authority to refer students for discipline are properly trained to administer student discipline in a nondiscriminatory manner. Schools should thus take steps to monitor and evaluate the impact of disciplinary practices to detect patterns that bear further investigation.104

As such, if OCR were to investigate the extreme disproportionality across New York State with respect to rates of suspension, it would clearly need to begin with the broad language of §3214 of NYS Education Law.105 It would look at the demographics of students assigned different consequences statewide for behavior deemed “insubordinate or disorderly or violent or disruptive, or [to be otherwise endangering] the safety, morals, health or welfare of others.” Then, as is too often the case in district-based investigations, if it turns out that students of color statewide are more harshly disciplined for infractions such as “insubordination” or “endangering the morals or welfare of others,”106 the question would be whether this subjective language is necessary to serve an important educational purpose, and if so, whether a less discriminatory alternative exists. In conducting the analysis, the agencies would also look at the myriad other factors related to state level policies that might contribute to the disproportionality in suspensions and expulsions, such as permitting the over-use of police in schools, the absence of requirements for effective restorative practices, the shortage of school counselors, and state level data-keeping methodologies that make it difficult to track the source of disparities.

Another area respecting school discipline that is ripe for OCR intervention is the over-suspension of students of color who have disabilities. Although NYSED does require districts to self-evaluate and report on these suspensions,107 disparities remain. In New York City, for example, students of color and students with disabilities continue to receive a disproportionate share of suspensions.108 A state-wide OCR investigation of this trend could focus, for example, on the effectiveness of the state’s response to the suspension data it collects.

Assuming a Title VI violation were found with respect to state disciplinary policies and practices, OCR/DOJ would require the state to correct any root causes for such a violation attributable to state action. Consistent with the recommendations of the New York State Bar Association,109 any remedy required would likely begin by seeking the reform of key state-level laws, policies, and practices determined responsible for the disproportionate exclusion of students of color in disciplinary proceedings statewide. Such practices could include repeated state inaction in response to years of notice regarding these disparities, including failing to fund adequate levels of staffing (such as school counselors or mental health services, for example) or failing to address patterns of exclusion identified in the reports NYSED regularly collects from schools. Any intervention implemented by the state would have to be based on solid research and implemented in such a manner that it would be capable of addressing any root causes identified; OCR would then monitor the state for implementation of any remedy agreed upon, especially in conjunction with remedies for violations associated with the other two Rs.

Overall, by holding New York State accountable for its actions, or lack thereof, that contribute to repeated patterns of disproportionality in student discipline, OCR/DOJ could significantly contribute to rectifying the exclusion of Black and Brown students across the state. In fact, in this case, a statewide approach might be far more effective at addressing this problem than OCR’s traditional reviews of individual districts.

Conclusion

Informed by the Five Rs and the Green factors, OCR and the DOJ should develop and implement interconnected, comprehensive reviews of state education systems to identify and correct the root of many discriminatory state actions not reachable with traditional, single-issue, district-level investigations.110 As in New York State, state laws and policies nationwide often interact to systematically disenfranchise students of color in schools: for example, a state may draw district lines so as to concentrate these students together to mirror and exacerbate housing patterns, then create a funding scheme that starves their districts of necessary resources, all while turning a blind eye to subjective disciplinary policies that lead to widespread racial disparities in exclusionary discipline. These actions all have contributed to the insidious and entrenched patterns that undergird the de facto school segregation that has evaded judicial review for too long.

As in New York State, state laws and policies nationwide often interact to systematically disenfranchise students of color in schools: for example, a state may draw district lines so as to concentrate these students together to mirror and exacerbate housing patterns, then create a funding scheme that starves their districts of necessary resources, all while turning a blind eye to subjective disciplinary policies that lead to widespread racial disparities in exclusionary discipline.

By building on decades of existing OCR and DOJ precedent, the Title VI disparate impact provision offers a framework for fashioning comprehensive remedies for this harm. As a result of the Sandoval case,111 these agencies have the sole capacity to enforce this legislation. If they choose to address these patterns together at the state level, they could immediately begin to unwind the pervasive effects of de facto school segregation on a vast scale. While such a bold and extensive approach is likely to receive significant political pushback, it would be firmly rooted in decades of agency precedent, albeit on a smaller scale than we propose.

Ideally, these investigations should be accompanied by a suite of other federal efforts to promote integration. These include passage of the Strength in Diversity Act,112 and new funding incentives that reward states and districts for racially and socioeconomically diverse schools and classes. The U.S. Department of Education and the DOJ also need to reinstate and update Obama-era regulations and guidance on school enrollment policies and student discipline.

In fashioning comprehensive remedies for these civil rights violations, states should start with the principles so brilliantly outlined by the IntegrateNYC students in their Green factor-based Five R framework. These principles formed the basis of the NYC School Diversity Advisory Group (SDAG)’s113 recommendations for a city-wide school integration model, along with the comprehensive middle school integration plan recently adopted by Brooklyn’s District 15.114 While these proposals do not address the more complicated state-wide remedies that our approach would require, they offer a holistic model for applying the Green factors to dismantling the current policies and practices behind the de facto segregation evident across the country. OCR and the DOJ should follow suit and exercise their power under Title VI to ensure that states and districts take proactive responsibility for uprooting the “criteria and methods of administration” that systematically exclude children of color from educational opportunities due to state-level action nationwide.

Notes

  1. Gary Orfield and Danielle Jarvie, “Black Segregation Matters: School Resegregation and Black Educational Opportunity,” The Civil Rights Project, December 17, 2020.https://civilrightsproject.ucla.edu/news/press-releases/press-releases-2020/black-segregation-matters-new-report-from-the-ucla-civil-rights-project-details-status-of-black-students-2013-urges-incoming-biden-administration-to-act-to-confront-pervasive-segregation/research/k-12-education/integration-and-diversity/black-segregation-matters-school-resegregation-and-black-educational-opportunity.
  2. Tegeler, Philip. 2016, “Predicting School Diversity Impacts of State and Local Education Policy: The Role of Title VI.” PRRAC — Connecting Research to Advocacy. January 1, 2016. https://prrac.org/predicting-school-diversity-impacts-of-state-and-local-education-policy-the-role-of-title-vi/. For an excellent discussion of additional harms of racial isolation in schools, see Noguera, Pedro. 2002. “Racial Isolation, Poverty and the Limits of Local Control as a Means for Holding Public Schools Accountable.” Escholarship.org, October. https://escholarship.org/uc/item/1v92k1z0.
  3. Andrew Ujifusa, “House Passes Signature Bills on School Integration and Discrimination,” Education Week, September 15, 2020, https://www.edweek.org/policy-politics/house-passes-signature-bills-on-school-integration-and-discrimination/2020/09
  4. U.S. House of Representatives, Appropriations Committee, “A Bill Making Appropriations for the Departments of Labor, Health and Human Services, and Equation, and Related Agencies for the Fiscal Year Ending September 30, 2022, and for Other Purposes[Full Committee Print],” July 10, 2021, https://docs.house.gov/meetings/AP/AP00/20210715/113908/BILLS-117–AP–AP00-FY2022LHHSSubcommitteeAppropriationsBill.pdf, 143.
  5. OCR’s priorities frequently shift with changes in administrations, and are often left unfinished. See James S. Murphy, “The Office for Civil Rights’s Volatile Power,” The Atlantic, Mar. 13, 2017, https://www.theatlantic.com/education/archive/2017/03/the-office-for-civil-rights-volatile-power/519072/.
  6. Under Title VI’s implementing regulations, both OCR and DOJ have the authority to investigate racial discrimination in schools, districts, and states that receive federal funds. See, 34 CFR § 100.7 (OCR) and 28 CFR § 42.107 (DOJ). OCR’s authority is over any entity that receives funding from the U.S. Department of Education. This Report mostly refers to OCR because OCR investigates the bulk of Title VI education claims, but the same analysis would apply to the DOJ, which might be the more appropriate agency to investigate the larger claims laid out here. See U.S. Department of Justice, “8-2.000 – ENFORCEMENT OF CIVIL RIGHTS CIVIL STATUTES,” https://www.justice.gov/jm/jm-8-2000-enforcement-civil-rights-civil-statutes#8-2.241.
  7. In “The ‘Compelling Government Interest’ In School Diversity: Rebuilding The Case For An Affirmative Government Role,” Michigan Law Journal (2014):1041, Philip Tegeler argues that OCR should use its Title VI authority to conduct proactive equity assessments. Tegeler also points to other federal agencies, such as the Federal Transit Administration, that have implemented analogous proactive agendas. See Philip Tegeler, “A Title VI Diversity Assessment at the Department of Education?,” Poverty & Race 23 No. 4 (July/August 2014): 3. This report builds on Tegeler’s argument by demonstrating how the 5Rs and Green factors could and should guide such a proactive agenda.
  8. By regulation, OCR and DOJ may initiate proactive reviews or so-called directed investigations of recipients of federal financial assistance (school districts and state departments of education, for example) to determine compliance with the civil rights laws. See U.S. Department of Education, Case Processing Manual (2020), 23, https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf. See also Title VI. 28 CFR § 42.107, https://www.govinfo.gov/content/pkg/CFR-2011-title28-vol1/pdf/CFR-2011-title28-vol1-part42-subpartC.pdf.
  9. 42 U.S.C. § 2000d-1, 34 C.F.R. § 100.3(b)(2)
  10. 42 U.S.C. 2000d et seq.
  11. Set forth in Green v. County School Board of New Kent County, 391 U.S. 430 (1968).
  12. See, e.g. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971).
  13. Crain |, Trisha Powell. “Hoover Schools Look to End 53 Years of Court Oversight.” Alabama.com, 14 June 2018, www.al.com/news/2018/06/hoover_schools_on_path_to_endi.html.
  14. Assistant Secretary for Civil Rights Russlynn Ali and United States Assistant Attorney General Thomas E. Perez, “Guidance On The Voluntary Use Of Race To Achieve Diversity And Avoid Racial Isolation In Elementary And Secondary Schools (Archived Information).” 2020 [Hereinafter ESE Racial Isolation DCL]. www2.Ed.gov. U.S. Department of Justice and U.S. Department of Education. January 10, 2020. https://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.html.
  15. See, e.g. OCR Case Nos.: 02-14-1077 (district-wide class complaint regarding discriminatory school admissions), https://cdn.ymaws.com/www.copaa.org/resource/resmgr/SREC_Files/American_Indian/Buffalo_public_school_discri.pdf; 11-10-5003 (district-wide compliance reviews regarding the failure to provide African-American students with comparable resources and education opportunities as compared to those provided to White students), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/11105003-a.pdf; 04-09-1123 (district-wide complaint regarding the impact of student assignment plans on segregation of Black students), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/04091123-a.pdf;
    02-14-1343 (district-based class complaint alleging that the district discriminated against African-American students by closing a number of schools), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/02141343-a.pdf; 11-04-1020 (district-based class complaint regarding discrimination against White students in school admissions), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/11041020.html; and 15-08-5001 (district-wide compliance review regarding the disproportionate underrepresentation of African-American students in high track courses and programs), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/15085001.html. See also, Gary Orfield, Jennifer Ayscue, Jongyeon Ee, Erica Frankenberg, Genevieve Siegel-Hawley, Brian Woodward and Natasha Amlani, Better Choices for Buffalo’s Students: Expanding & Reforming the Criteria Schools System. See here to search OCR case resolutions since October 1, 2013.
  16. See, e.g. OCR Case No. 15-10-5002 (district-wide compliance review regarding African-American students’ access to resources), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/15105002.html. See also Assistant Secretary for Civil Rights Catherine Lhamon, ‘Dear Colleague Letter’ Guidance to Ensure All Students Have Equal Access to Educational Resources (October 1, 2014) [Hereinafter OCR’s Resource Comparability DCL]. Note that the Trump Administration did not rescind this guidance (unlike the School Discipline guidance, infra.)
  17. See, e.g., OCR Case No. 05-12-5001 (district-wide compliance review regarding discrimination in adminstration of school discipline), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/05125001.html. See also, OCR/DOJ Joint Guidance on the Nondiscriminatory Administration of School Discipline (January 8, 2014) [Hereinafter OCR/DOJ School Discipline DCL]; although the Trump administration rescinded this guidance, the compliance and investigatory standards it sets forth are consistent with case law, along with established precedent of both agencies. See generally Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993); U.S. Department of Justice, Title VI Legal Manual 44-46 (Jan. 11, 2001) (“Title VI Manual”); U.S. Department of Education, Racial Incidents and Harassment against Students at Educational Institutions, 59 Fed. Reg. 11,448 (Mar. 10, 1994). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a Title VII case that sets forth a three-part test that also applies in the Title VI and Title IV contexts. The McDonnell Douglas test applies in court and administrative litigation to determine whether an institution has engaged in prohibited discrimination.
  18. U.S. Department of Education, Ensuring Equal Access To High-Quality Education, (Revised January 2011), https://www2.ed.gov/about/offices/list/ocr/docs/ensure03.pdf.
  19. In 1991 the U.S. Government Accountability Office published a report on inadequate OCR enforcement of Title VI regarding discriminatory intra-school student assignment practices. See U.S. Government Accountability Office, Within-School Discrimination: Inadequate Title VI Enforcement by the Office for Civil Rights (1991), https://www.gao.gov/products/hrd-91-85. See also, OCR Annual Reports to Congress 1990-2020, describing its shifting proactive priorities over the years.
  20. Civil Rights Act of 1964, tit.VI, § 200d (2012).
  21. Civil Rights Restoration Act of 1987 § 6, 42 USC § 2000d-4a.
  22. “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VI of the Civil Rights Act of 1964; 42 U.S.C. § 2000d, et seq.
  23. Olatunde Johnson, “Lawyering That Has No Name: Title VI and the Meaning of Private Enforcement.” Stanford Law Review 66, no. 6 (2014): 1293–1332.
  24. Note the 1969 amendments to Title VI: “It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 and section 182 of the Elementary and Secondary Education Amendments of 1966 dealing with conditions of segregation by race, whether de jure or de facto, in the schools of the local educational agencies of and State shall be applied uniformly in all regions of the United States whatever the cause of such segregation.” (emphasis added). 42 U.S.C. § 2000d-6.
  25. For an excellent discussion of de facto school segregation, see Rothstein, Richard. 2019. “The Myth of de Facto Segregation.” Kappanonline.org. January 21, 2019. https://kappanonline.org/myth-de-facto-segregation-rothstein-school-districts/.
  26. Under OCR’s practice, public schools, school districts and state departments of education are all considered “recipients.” See U.S. Department of Education, Case Processing Manual (2020), 23, https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf. See also Title VI. 28 CFR § 42.107, https://www.govinfo.gov/content/pkg/CFR-2011-title28-vol1/pdf/CFR-2011-title28-vol1-part42-subpartC.pdf.
  27. See, e.g. 28 C.F.R. § 42.104(b)(2) (2013).
  28. Alexander v. Sandoval, 532 U.S. 275 (2001)
  29. In other words, the right of individuals or groups to bring a lawsuit in court.
  30. Note that the primary Title VI enforcement mechanism used by both agencies is an administrative investigation, rather than litigation, which is only initiated following efforts to achieve a voluntary resolution. For a description of the applicable jurisdictions and procedures for OCR and DOJ, respectively, as well as an extensive analysis of the performance and funding of all the federal civil rights agencies to date see U.S. Commission on Civil Rights, Are Rights a Reality?: Evaluating Federal Civil Rights Enforcement (2019), https://www.usccr.gov/pubs/2019/11-21-Are-Rights-a-Reality.pdf.
  31. OCR Case No. 05-14-5003, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/05145003-a.pdf. See also, OCR Resource Comparability DCL, p.8.
  32. A recipient that is unwilling to correct any violations found would be subject to termination of federal education funding. See U.S. Department of Education, Office for Civil Rights Complaint Processing Manual (August 26, 2020) [hereinafter OCR CPM), Article VI. As such, the vast majority of cases in which OCR finds a violation are resolved through an agreement. See Civil Rights at School: Agency Enforcement of Title VI of the Civil Rights Act of 1964, April 4, 2019, https://www.everycrsreport.com/reports/R45665.html#fn154
  33. U.S. Commission on Civil Rights, Minorities in Special Education (April 2009), https://static1.squarespace.com/static/56675bc2b204d55efa34e5c5/t/5696ce251115e07e998156b4/1452723753855/MinoritiesinSpecialEducation.pdf.
  34. See Daniel J. Losen, “Silent Segregation in our Nation’s Schools,” Harvard Civil Rights-Civil Liberties Law Review 34 (1999): 67, https://harvardcrcl.org/wp-content/uploads/sites/10/2015/07/Silent-Segregation-in-Our-Nations-Schools.pdf; U.S. Department of Education, Office for Civil Rights, “Protecting Civil Rights, Advancing Equity: Report to the President and Secretary of Education” (2015), https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2013-14.pdf. The Obama Administration renewed a proactive focus on disparities in student discipline. See, e.g. OCR Case No. 09-12-5001, September 17, 2012, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/09125001-b.pdf.
  35. While the bulk of OCR’s cases focus on schools, school districts and institutions of higher education, the agency often investigates state education departments for civil rights violations. See, e.g. OCR Case No. 02-16-1195 (investigating NY State Education Department for disability-related violations), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/02161195-a.pdf, and OCR Case No. 08-09-4026 (investigating Arizona Education Department for English Language Learner-related violations), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/08094026.html. For more examples, see, e.g. Office for Civil Rights Annual Report to Congress (2000), https://www2.ed.gov/about/offices/list/ocr/AnnRpt2000/edlite-priorities.html (reporting on OCR’s work to address segregation in state higher education systems under Title VI and the Fourteenth Amendment, specifically with the states of Kentucky, Texas and Maryland), and Office for Civil Rights Annual Report to Congress (1999), https://www2.ed.gov/about/offices/list/ocr/AnnRpt99/edlite-difference.html (reporting on an OCR agreement with the Commonwealth of Pennsylvania intended to remove vestiges of segregation in that state’s community colleges).
  36. See, Office for Civil Rights Recent Resolution Search, https://ocrcas.ed.gov/ocr-search?f%5B0%5D=it%3AOther%20types%20of%20institutions (accessed July 13, 2021)
  37. The National Coalition on School Diversity (NCSD), 2021. “School Integration Priorities for a Biden/Harris Administration.” https://school-diversity.org/wp-content/uploads/NCSDPB12_Final.pdf.
  38. Ibid.
  39. Id. at 186..
  40. See generally Milliken v. Bradley, 418 U.S. 717 (1974) (holding that federal courts could not require school desegregation between districts unless they identified de jure segregation at the state level or in all the districts involved).
  41. See generally San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
  42. Orfield, Gary, and Danielle Jarvie. “Black Segregation Matters School Resegregation And Black Educational Opportunity.” The Civil Rights Project/ Proyecto Derechos Civiles. www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/black-segregation-matters-school-resegregation-and-black-educational-opportunity/BLACK-SEGREGATION-MATTERS-final-121820.pdf.
  43. For an excellent summary of the problems with New York State education funding, see New York Advisory Committee to the U.S. Commission on Civil Rights, 2020. “Education Equity in New York: A Forgotten Dream”, https://www.usccr.gov/pubs/2020/02-10-Education-Equity-in-New%20York.pdf.
  44. The Civil Rights Project. May 10, 2019. “Harming Our Common Future: America’s Segregated Schools 65 Years after Brown.” https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/harming-our-common-future-americas-segregated-schools-65-years-after-brown/Brown-65-050919v4-final.pdf.
  45. See Alliance for Quality Education, Oct. 28, 2019. “Rich-Poor Spending Gap Soars to More Than $10,000 Per Pupil.” https://www.aqeny.org/2019/10/28/rich-poor-spending-gap-soars-to-more-than-10000-per-pupil/.
  46. https://files.eric.ed.gov/fulltext/ED604326.pdf
  47. The New York Equity Coalition, December 2018. “Stolen Time: New York State’s Suspension Crisis.” https://equityinedny.edtrust.org/wp-content/uploads/sites/5/2019/08/Stolen-Time_2018.pdf.
  48. See Milliken v. Bradley. 1974, 418 U.S. 717; San Antonio Indep. Sch. Dist. v. Rodriguez. 1973, 411 U.S. 1.
  49. See e.g. OCR, Jan, 19, 2018. “Letter to the Alabama State Department of Education.”https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/04161266-a.pdf. and OCR, Dec. 14, 2017. “Letter to the Alaska Department of Education & Early Development.” https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/10161093-a.pdf. See also NCSD, “School Integration Priorities for a Biden/Harris Administration.”
  50. Herron, Arika. 2021. “What We Know about the Investigation of Special Education in Indiana during the Pandemic.” Indy Star, January 15, 2021. https://www.indystar.com/story/news/education/2021/01/15/what-we-know-us-education-department-investigation-into-indiana-special-ed-services/4165932001/.
  51. OCR Case No. 08-09-4026, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/08094026.html
  52. Since the 1980s, OCR’s levels of staffing have been halved, though its caseload has doubled. Kim, Robert. December 26, 2020. “Civil Rights Enforcement in Education: The Federal Role.” Phi Delta Kappan. https://kappanonline.org/civil-rights-enforcement-education-schools-federal-role-kim/.
  53. In 2018 in New York City public schools, 1 in 4 Black students and 1 in 6 Latino students attended schools with almost no White students, making New York City among the most segregated school districts in the country. The City’s schools have a high concentration of students of color, and their chronic underfunding by the State has long been the subject of litigation. See Danielle Cohen, June 2021. “NYC School Segregation Report Card: Still Last, Action Needed Now.” The Civil Rights Project at UCLA, civilrightsproject.ucla.edu. https://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/nyc-school-segregation-report-card-still-last-action-needed-now. (Cohen, 2021)
  54. Id. p.3.
  55. EdBuild. 2020. “FRONTIER: School District Borders and the Pursuit of Educational Opportunity.” https://s3.amazonaws.com/edbuild.org/public/projects/borders_funded/reports/Frontier_full_report.pdf.
  56. Aaron Saiger, “The School District Boundary Problem,” Urban Lawyer 42 (2010): 499-500, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1719140.
  57. “Interlocal Relations And Metropolitan Area Problems” in Cases And Materials On State And Local Government Law, ed. Richard Briffault et al. (9th ed. publication forthcoming), 38. See also Yohance C. Edwards & Jennifer Ahern, “Unequal Treatment in State Supreme Courts: Minority and City Schools in Education Finance Reform Litigation,” N.Y.U. Law Review 79 (2004): n.2 .
  58. See Laurie Reynolds, “Uniformity of Taxation and the Preservation of Local Control in School Finance Reform,” U.C. Davis Law Review 40 (2007): 1849-1850.
  59. While this initial state action occurred well beyond the general 180 day requirement for filing federal Title VI complaints (see, eg., DOJ Complaint Form available at https://www.justice.gov/file/1259441/download), there is a strong argument to be made that the state continues to violate Title VI by its repeated failure to correct the disproportionate impact on Black and Latino students caused by the state’s district boundaries, despite the repeated reports demonstrating that New York remains the most segregated state in the country for Black students (such as the 2014 UCLA Civil Rights Project report entitled “New York State’s Extreme School Segregation: Inequality, Inaction and a Damaged Future” housed on the New York State Education Department’s own website. See, http://www.nysed.gov/common/nysed/files/kucsera-new-york-extreme-segregation-2014.pdf) In one example of inaction, the State Commissioner of Education has the legal authority in most districts to initiate the redrawing of district lines any time ”she determines it educationally desirable to do so,” subject to voter approval. The Commissioner usually has the right to initiate redistricting or annexation after “careful” study of the impact of district lines. However, it is notable that the State guidance above offers several reasons for reorganization, none of which mentions desegregation or educational equity. See e.g. http://www.p12.nysed.gov/mgtserv/sch_dist_org/GuideToReorganizationOfSchoolDistricts.htm. Given New York’s continued and well-documented state of segregation, it is the Commissioner’s continual failure to determine it educationally desirable to redistrict segregated districts that represents an ongoing Title VI violation, along with the legislature’s failure to amend the state districting law itself. Similar arguments would apply to the timeliness issue with respect to Resources and Restorative Justice, discussed below.
  60. N.Y. Educ. Law § 1801.2 (Consol. 2015).
  61. N.Y. Educ. Law § 1803.5 (Consol. 2015). Governor Cuomo and a number of New York legislators have advocated for district consolidation and even repealing §§ 1802–04, so that the Commissioner could consolidate districts without local approval. See also Hupfl, Ashley. 2015. “Merging Identities: Can Cuomo Convince School Districts to Consolidate?” City and State N.Y., January 8, 2015.
    https://www.cityandstateny.com/articles/policy/education/merging-identities-can-cuomo-convince-school-districts-to-consolidate.html.
  62. New York’s highest court acknowledged this in Paynter v. State. 2003. 100 N.Y.2d 434, 439, and in Campaign for Fiscal Equity, Inc. v. State (CFE I). 1995. 86 N.Y.2d 307, 322.
  63. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet. 1994. 512 U.S. 687, 696.
  64. Milliken v. Bradley. 1974. 418 U.S. 717, 745.
  65. Following Milliken, the only school districts “compelled to create after findings of discrimination across city and suburban lines” were Indianapolis, St. Louis, and Wilmington, Delaware. Hochschild, Jennifer L., and Nathan Scovronick. 2004. The American Dream and the Public Schools. New York, NY: Oxford University Press, 34; see also Lee v. Macon Cty. Bd. of Ed. 1964. 267 F. Supp. 458, 479 (M.D. Ala.), aff’d sub nom. Wallace v. U S. 1967. 389 U.S. 215, 88 S. Ct. 415, 19 L. Ed. 2d 422, (holding that because state policies enforced segregation, desegregation must be ordered on a statewide basis);
    Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet. 1994. 512 U.S. 687, 696, (characterizing the creation of school districts as a power within the “State’s discretionary authority”).
  66. EdBuild. “Fault Lines: America’s Most Segregating School-District Borders.” Data Table: 50 Most Segregating Borders in the Country. https://edbuild.org/content/fault-lines/data.
  67. EdBuild. Updated 2020. “Fault Lines,” 8, https://edbuild.org/content/fault-lines/full-report.pdf.
  68. John Kucsera & Gary Orfield,The Civil Rights Project at UCLA. 2014. “New York State’s Extreme School Segregation: Inequality, Inaction and a Damaged Future,” http://www.nysed.gov/common/nysed/files/kucsera-new-york-extreme-segregation-2014.pdf. The authors defined “[p]redominantly non-White districts are those with 60% or more non-White students” and “[p]redominantly White districts are those with 80% or more White students,” 81.
  69. See Cohen 2021, supra.
  70. EdBuild, “Fault Lines,” 8.
  71. Id.
  72. Cohen 2021.
  73. Colin Lecher, “NYC’s School Algorithms Cement Segregation. This Data Shows How,” THE CITY, May 26, 2021, https://www.thecity.nyc/2021/5/26/22453952/nyc-high-school-algorithms-segregation.
  74. See Parents Involved in Community Schools v. Seattle School District No. 1. 551 U.S. 701, 783 (2009) (Kennedy, J., concurring).
  75. Such as North and South Carolina, Maryland, Tennessee and Virginia.
  76. See Julien Lafortune, Jesse Rothstein & Diane Whitmore Schanzenbach, “School Finance Reform and the Distribution of Student Achievement,” American Economic Journal: Applied Economics 10, no. 2. 2018. 1-26.
  77. The plaintiffs in the CFE case originally brought Title VI claims alongside state constitutional claims. The Title VI claims were dismissed after Sandoval. See 295 A.D.2d 1, 21 (2002), aff’d as modified and remanded, 100 N.Y.2d 893 (2003).
  78. Kucsera & Orfield, New York State’s Extreme School Segregation; Edbuild, Dividing Lines: School District Borders in the United States, last visited June 20, 2021, http://viz.edbuild.org/maps/2015/dividing-lines/.
  79. CFE v. State, 86 N.Y.2d 307, 317 (1995) (“The State must assure that some essentials are provided.”); CFE v. State, 187 Misc. 2d 1, 20 (2003) (“[T]he Commissioner of Education possesses supervisory authority over all aspects of the public schools.”); CFE v. State, 100 N.Y.2d 893, 928 (2003).
  80. See New York Advisory Committee to the U.S. Commission on Civil Rights. 2020. “Education Equity in New York: A Forgotten Dream,” 9. https://www.usccr.gov/pubs/2020/02-10-Education-Equity-in-New%20York.pdf.
  81. As required by Campaign for Fiscal Equity, Inc. v. State, 100 N.Y.2d 893, 928 (2003).
  82. Susan Arbetter, “Education Advocates Pleased With State Budget’s Record Funding for School Aid,” State of Politics, April 7, 2021, https://nystateofpolitics.com/state-of-politics/new-york/politics/2021/04/07/education-advocates-pleased-with-state-budget-s-record-funding-for-state-aid.
  83. Id.
  84. OCR has already accepted a complaint from the Schenectady School District against the State of New York for its systematic underfunding of its schools as compared to schools that serve predominantly White students. The investigation has been underway since 2014; as no announcement has been made as to the results, presumably it is either still ongoing, or the Trump administration declined to issue a finding one way or the other. The existing investigation of this case would provide the New York OCR office with much of the information needed to conduct this aspect of the “3R” investigation in the state, and would need to be updated with recent findings after the disbursement of Foundation Aid funds.
  85. See Summary of the Case, New Yorkers for Students’ Educational Rights (NYSER) v. State of New York, http://nyser.org/wp-content/uploads/2016/01/NYSER_Case_Summary.pdf. Note that as per OCR’s procedures, it would not investigate the same allegation based on the same operative facts that is being addressed against the same recipient in another forum, including in state court. See OCR CPM, Section 108(j). However, the NYSER complaint alleges violations under the New York State Constitution, while an OCR investigation would be based on Title VI of the Civil Rights Act.
  86. See also USCCR Report at 146.
  87. New York Equity Coalition, “Stolen Time: New York State’s Suspension Crisis.” December 2018. https://equityinedny.edtrust.org/stolen-time/.
  88. Id., p. 7.
  89. Daniel J. Losen & Paul Martinez, (2020). “Lost opportunities: How disparate school discipline continues to drive differences in the opportunity to learn.” Palo Alto, CA/Los Angeles, CA: Learning Policy Institute; Center for Civil Rights Remedies at the Civil Rights Project, UCLA.
  90. See, e.g. NAACP Legal Defense and Education Fund, “Dismantling the School-to-Prison Pipeline.” https://www.naacpldf.org/wp-content/uploads/Dismantling_the_School_to_Prison_Pipeline__Criminal-Justice__.pdf and Shared Justice, “Zero-Tolerance Policies and the School to Prison Pipeline,” January 18, 2018. https://www.sharedjustice.org/domestic-justice/2017/12/21/zero-tolerance-policies-and-the-school-to-prison-pipeline.
  91. Investigation of Eric T. Schneiderman, Att’y Gen. of the State of N.Y. of Syracuse City Sch. Dist., AOD No. 14-159, (Off. of the Att’y Gen. of the State of N.Y., Civ. Rts. Bureau July 10, 2014), available at https://ag.ny.gov/sites/default/files/pdfs/bureaus/civil_rights/Syracuse_City_School_District_AOD- Executed.pdf; Investigation of Eric T. Schneiderman, Att’y Gen. of the State of N.Y. of the City Sch. Dist. of Albany, AOD No. 15-243, (Off. of the Att’y Gen. of the State of N.Y., Civil Rights Bureau Dec. 4, 2015), available at https://www.albanyschools.org/district/Programs/AG_report/2015-16/AG_agreement_12-15.pdf.
  92. Ajmel Quereshi & Jason Okonofua, “Locked Out Of The Classroom: How Implicit Bias Contributes To Disparities In School Discipline,” NAACP Legal Defense and Education Fund, 2017. 4, https://www.naacpldf.org/wp- content/uploads/LDF_Bias_Report_WEB-2.pdf.
  93. See New York Civil Liberties Union, “Education Interrupted: The Growing Use of Suspensions in New York City’s Public Schools,” 2011, 19; and Edward W. Morris, Brea L. Perry. 2017. “Girls Behaving Badly? Race,Gender, and Subjective Evaluation in the Discipline of African American Girls.” Sociology of Education 90 (2): 127–48. https://journals.sagepub.com/doi/abs/10.1177/0038040717694876.
  94. See, e.g. NYSED Office of Counsel, Commissioner’s Decisions, Decision No. 17,834 (Apr. 21, 2020) (upholding a suspension for non-threatening social media messages sent outside school); NYSED Office of Counsel, Commissioner’s Decisions, Decision No. 17,244 (Nov. 2, 2017) (upholding a suspension for being “disrespectful (verbally and in email) to teachers and staff members when addressed” and “refused to comply with request(s) from [a] staff member”).
  95. To address the excessive rates of suspension across New York State, a bill (the Judge Judith S. Kaye Safe and Supportive Schools Act, S.767/A.1981) has been proposed, which among other measures, would encourage schools to use proven alternatives to suspensions and would require schools to attempt positive discipline strategies either before or in conjunction with a suspension. This bill is currently stalled in the NY Senate. See https://www.nysenate.gov/legislation/bills/2019/s767/amendment/b
  96. New York State Bar Association Task Force on the School to Prison Pipeline, Final Report, April 13, 2019. https://nysba.org/app/uploads/2020/02/School-to-Prison-Pipeline-House-Approved-004.pdf, [hereinafter NYSBA School Discipline Report], 53.
  97. Gayle Simidian, (David Albert ed.), New York State School Boards Association. “Rethinking School Discipline,” 2017. https://www.nyssba.org/clientuploads/nyssba_pdf/rethinking-school-discipline-04272017.pdf.
  98. NYSBA School Discipline Report, 56.
  99. See, e.g. “New York State Board of Regents Launches an Initiative to Advance Diversity, Equity and Inclusion in New York Schools.” New York State Education Department, 12 Apr. 2021, www.nysed.gov/news/2021/new-york-state-board-regents-launches-initiative-advance-diversity-equity-and-inclusion.
  100. See supra notes 14 and 27, for OCR precedent and the Joint OCR/DOJ Discipline DCL. See also, OCR Case No.11-14-1224, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/11141224-a.pdf, looking at three years of district-wide disciplinary data and establishing disproportionate over-representation of Black students as compared to White students in all suspensions and referrals to law enforcement.
  101. OCR/DOJ Discipline DCL Illustration 2.
  102. See supra notes 14 and 27.
  103. See supra note 14.
  104. OCR/DOJ Discipline DCL, Section B.
  105. See NYSBA School Discipline Report, Appendix A for its recommendations for reforming §3214.
  106. New York State Education Department does not regularly collect and publicize demographic data with respect to school discipline, nor does it publicize rates of suspension for individual offenses. See, https://data.nysed.gov/downloads.php, https://data.nysed.gov/lists.php?type=district, https://data.nysed.gov. It does collect demographic data for students with disabilities subjected to suspensions and expulsions. See, http://www.p12.nysed.gov/sedcar/forms/pdforms/1718/pdf/pd8.pdf
  107. “Special Education State Performance Plan (SPP)/ Annual Performance Report (APR).” NYSED, www.p12.nysed.gov/specialed/spp/home.html.
  108. O’Connell-Domenech, Alejandra. “Black Students and Students with Disabilities Still Receive Disproportionally High Number of School Suspensions, Report.” AmNewYork, 7 Nov. 2020, www.amny.com/news/black-students-disabilities-disportionally-higher-suspension/.
  109. NYSBA School Discipline Report, pp. 63-67.
  110. Although robust district-wide investigations, particularly where there is intra-district segregation, are critical too.
  111. Sandoval, 532 U.S. 275
  112. Or other similar measures, as noted in fn 4, supra.
  113. New York City School Diversity Advisory Group Reports, “Making the Grade I: The Path Towards Real Integration and Equity for NYC Public School Students,” February 2019, https://docs.wixstatic.com/ugd/1c478c_4de7a85cae884c53a8d48750e0858172.pdf and “Making the Grade II: New Programs for Better Schools,” August 2019, https://docs.wixstatic.com/ugd/1c478c_1d5659bd05494f6d8cb2bbf03fcc95dd.pdf
  114. D15 Working Group, “D15 Diversity Plan,” July 2018, http://d15diversityplan.com

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