Brown@65 | The Ebbs and Flows of Federal School Integration Policy since 2009 by Elizabeth DeBray, Erica Frankenberg, Kathryn McDermott, Janelle Scott, and Genevieve Siegel-Hawley

In June 2019, an exchange between Kamala Harris and Joe Biden during the first round of Democratic primary debates touched off renewed conversation about busing and school desegregation, and leading Democratic presidential candidates were asked about their positions on school segregation.

As K-12 integration, including the past and possibly future federal role to further school integration, gains more of a foothold in our national consciousness, we take a look at the most recent federal efforts to support or undermine diverse schools.  

To accomplish this, we focus on the following two questions to guide the discussion:

1. How did Obama administration officials envision the role of the federal government in fostering K-12 school integration? What policy instruments and actions were taken by the executive branch?
2. What have been the major changes in K-12 school integration policy since the beginning of the Trump administration? 

To answer these questions, our data sources include media reports, documents, observations at key civil rights events, and interviews with approximately 40 past and current staff – federal agencies, selected congressional aides, members of civil rights organizations, policy groups, and foundations. We present initial findings from a study supported by a Spencer Foundation small grant, which is a case study of changes to race-conscious K-12 education policy, as well as politics, from January 2017 through the end of 2019.

The Obama Administration, 2009-2017

We’ve divided the Obama era into two distinct approaches to K-12 school integration. Both reflect the leadership at the U.S. Department of Education (USED). As such, we term K-12 integration efforts under the first approach The Duncan Years, after former U.S. Secretary of Education Arne Duncan. The second approach, which we call the King Year, reflects John King’s robust leadership on issues of K-12 integration.  It includes his tenure as Secretary and months preceding his nomination in 2015.

The Duncan Years

Duncan brought USED’s Office for Civil Rights (OCR) back into the fold, literally securing a “seat at the table for OCR on policy team” by moving the Office into the main building from off-site.  Aside from this symbolic effort, under Duncan and first OCR Assistant Secretary Russlyn Ali, the Department renewed emphasis on becoming the “civil rights law firm” for students. Additionally, changes to the federal magnet schools program including (1) reducing racial isolation; (2) eliminating non-diversity priorities; and (3) using non-competitive admissions processes strengthened its focus as federal government’s primary desegregation strategy. The U.S. Department of Justice (DOJ) Civil Rights Division was reinvigorated, with more resources devoted to updating the existing desegregation cases to which DOJ was party, using consent decrees to further educational access within and between schools, and working closely with OCR to both support voluntary integration efforts (including race-consciousness in limited ways) and addressing racial segregation and inequality that persisted.

Duncan’s Education Department, in conjunction with DOJ, in 2011 issued long-awaited guidance clarifying what the executive branch viewed as legally permissible when it came to voluntary integration.  This guidance clarified that as per Justice Kennedy’s separate concurring opinion in the 2007 Parents Involved decision, there are constitutionally permissible ways that districts may design student assignment policies to avoid racially isolated schools, like zoning and magnets. However, as was typical during this time, the guidance, which had been a priority for civil rights and education groups, was released on Friday afternoon via conference call as if to minimize attention to efforts furthering racial equity.

Aside from these efforts, there was not a sharp focus on school integration during this first part of the Obama administration—and a major missed opportunity.  In 2009-2010, Obama’s Race to the Top state incentive grant program (more than $4 billion), which spurred significant policy shifts in education as states, still reeling from the Great Recession, scrambled for the money, but it failed to include school integration/diversity as priority in favor of other strategies. 

A former USED official explained:

“I think in terms of a significant change in how the federal government operates around education, and to something as large as reversing the tide of inequality in public schools, you would really only have one moment. . . I think that the shifting of the landscape moment came in 2009 when the Obama administration put $100 billion into the recovery act, of the $787 billion into education, and then it also equipped $4 billion into Race to the Top at that point as part of the recovery act. None of that, arguably, shifted the landscape in education in a significant way.”    –Interview, 10/5/18

The King Year, 2015-16

John King became U.S. Secretary of Education in the early days of 2016, beginning an agency-wide push for integration although more integration initiatives had been on the agenda during the second term preceding his appointment. The transformation of OCR was notable under Assistant Secretary of Civil Rights Catherine Lhamon, who was appointed while Duncan was still in office and made active use of the bully pulpit function of her position.  In addition to increasing the scope and number of investigations, she and her staff held numerous public hearings and engaged with interest groups in order to raise awareness guidance documents.  

Secretary King explained in an interview with us:

“We tried to use every opportunity to lift up this message around school diversity. And also, the other thing I try to do is tell my own story. For me, both as a student and as a parent, school diversity was hugely important.” (Interview, 2/21/19)

Tanya Clay House, who served as Deputy Assistant Secretary for P-12 in the Office of Planning, Evaluation, and Policy Development, summarized her role in the work of Secretary King’s task force on school diversity within the Department: 

“We did a broad review of where we could insert diversity priorities.  We created an entirely new supplemental priority [that could be] inserted at [the] Secretary’s discretion, inserted into any program.  This one was all about diversity. That was significant. It [diversity] didn’t have to have been part of the original grant. That’s particularly impactful as it created groundwork for actually developing an entirely new grant program that was directly going to provide funding to districts engaging in diversity strategies: Opening Doors.  It wasn’t just about magnets. We got [that priority] through.” (Interview, 7/31/18)

USED’s focus on integration extended to other agencies as well. In a groundbreaking joint memorandum, the U.S. Departments of Housing and Urban Development (HUD), Education, and Transportation called for interagency efforts to enhance integration, intended to complement new HUD guidance reinvigorating Affirmatively Furthering Fair Housing. 

In the last months of the Obama administration, USED released a new rule that required states to use a uniform definition of racially disparate impact in their special education programs, and to intervene when districts had racial disparities in educational placements or discipline of students with disabilities.

Some Democrats in Congress pressed for legislative action as well. Senator Murphy, from Connecticut which has one of the largest interdistrict integration programs in the country, introduced Stronger Together legislation in 2016, calling for funds to spur communities to plan and implement voluntary integration plans. Although it was not passed by the majority-Republican House and Senate, Secretary King revived the idea through the Opening Doors, Expanding Opportunities program, using discretionary funds as proposed incentive grants to local communities to support school integration.  

Trump Administration, 2017-2019

Despite $12 million being already allocated for the Opening Doors program and 26 applicant districts, one of the first actions taken by the Trump USED was to eliminate the program. Several of our interviewees characterized the Trump Administration agenda as essentially reversing all of the Obama executive branch actions.

There has, in fact, been a substantial rollback of the Obama agenda from several standpoints.  The first was the appointment of Secretary Betsy DeVos, whose Congressional testimony revealed that she is reluctant to acknowledge federal authority to enforce civil rights. The nature of OCR/USED as civil rights agency has shifted generally and with regard to investigations specifically.  Assistant Secretary for Civil Rights Ken Marcus is not a supporter of race-conscious policies (Green, et al., 2018). The Trump administration rescinded both K-12 and higher education race-conscious guidance documents. Congress used its power under the Congressional Review Act to rescind the Obama administration’s regulations for implementing the Every Student Succeeds Act (ESSA).

Some interviewees have suggested rollbacks of Obama-era policies are being led by DOJ. In one of the most high-profile K-12 desegregation cases involving the proposed secession of largely white Gardendale, Alabama, DOJ, which had objected to the secession in 2016 did not join with plaintiffs (nor did they oppose) in appealing the district court decision to the 11^th Circuit. Gardendale’s secession attempt was ultimately not permitted by the 11^th Circuit.

The Trump administration announced that it would delay—perhaps permanently—the implementation of the disparate impact rule for special education, consistent with the long-standing efforts to narrow the definition of racial discrimination. After a federal district court judge ruled that the delay decision had violated the Administrative Procedure Act, Secretary DeVos announced in May 2019 that it would implement the rule for the 2019-20 school year while also appealing the ruling. Even if DeVos does not get her way on this specific issue, Trump and Senate Majority Leader Mitch McConnell’s success at filling judicial vacancies with conservatives—including many that refuse to say Brown v. Board of Education was properly decided— makes it likely that the courts will ultimately reject the disparate-impact standard, with broad implications across many areas of federal civil rights policy. Conservative judicial appointments, including two Supreme Court justices, could also affect the outcomes of two critical federal lawsuits testing the limited use of race in K-12 student assignment, brought by the Pacific Legal Foundation in Connecticut and an Asian-American rights group in New York City (Meckler, 2018).  

In the legislative branch, Congress has increased OCR appropriations despite cuts recommended in the Administration’s budget proposals, both in 2017-18, and at present under House Democratic leadership with Rep. Bobby Scott (D-VA) as chair of the Education and Labor committee. Representative Marcia Fudge (D-OH) and Senator Chris Murphy (D-CT) introduced the Strength in Diversity Act, to which districts or groups of districts may apply. Chairman Bobby Scott has also held hearings about oversight and enforcement.   

Interest groups

There has been pushback to the Trump Administration’s actions. Civil rights organizations have mobilized, and there is at least one new coalition Education Civil Rights Alliance leading state efforts.  While the groups are more organized, they are also facing simultaneous crises of civil rights across the board with housing, immigration, and an increase in hate crimes.

One minor victory for advocates has been the striking of “anti-busing riders” via appropriations bills (to align with ESSA’s incentives for states to adopt research-based strategies, in which the National Coalition for School Diversity played a leading role.  

Foundations and philanthropy have not been particularly active to support K-12 diversity efforts. There have been some unpredictable new alignments in the interest group sector as well; one example is the Walton Family Foundation giving money to more progressive groups like The Century Foundation to study diverse charter schools.  We would also observe, however, that progressive think tanks and university-based centers have continued to do research and raise awareness about the harms of racially isolated schools.  

Broader Implications 

There is a continued redefinition of diversity from the Obama era in which SES and race diversity were in tension, and also decades-long movement away from K-12 desegregation efforts to address historical racial discrimination. Parents Involved is still the law, and so school districts still have a basis for voluntarily implementing student assignment plans to reduce racially isolated schools.  Some career staff remain within OCR. The regional Equity Assistance Centers could be one possibility to help keep diversity initiatives alive.

But many staff with a long history and expertise are gone. This is a larger conservative project of trying to show that government cannot work, unfolding in concert with concerns that race-conscious policies are unfairly allocating government benefits to people of color.  OCR could make claims that individual parents could not, thus having OCR’s functions weakened in light of rise of racist violence, bullying, incidents both in and out of school raises particular concerns. (A recent report from UCLA documented this rise.)  The U.S. Commission on Civil Rights is expected to release its first major report to Congress since 2003 about the status of enforcement of civil rights across federal agencies in 2019.  

Much more of civil rights implementation is now left to local and state governments, which vary widely in commitment — and freedom, with the gutting of ESSA regulations.  It is true that while the “cat is out of bag” (as one of our interviewees put it) in terms of the benefits of diversity to states/locals, this framing may not be enough to address actual racial inequality.

In conclusion, we note that there have been conversations nationally about how to incorporate broader, revived attention to desegregation, and why it is happening: youth social movements, Ferguson, journalist Nikole Hannah-Jones’s writing on segregation, how progressive academics thought things would happen under Obama in terms of racial equality, and the national standards movement.  All of these set the context for the potential for counter-currents to the Trump administration’s efforts to roll back civil rights.

This is the first installment in our Brown@65 Series. Contributors to this series for the AJE Forum presented these pieces at the Brown@65 Conference hosted by Penn State’s Center for Education and Civil Rights and the university’s Africana Research Center. We invite you to join our conversation by commenting below, engaging us on AJE’s social media platforms, or submitting an essay of your own.

Elizabeth DeBray (Ed.D., Harvard University) is a Professor of Educational Administration and Policy at the University of Georgia. Dr. DeBray’s major interests are the implementation and effects of federal and state elementary and secondary school policies, and the politics of education at the federal level. She is author of Politics, Ideology, and Education: Federal Policy during the Clinton and Bush Administrations (Teachers College Press, 2006) and co-editor (with E. Frankenberg) of Integrating Schools in a Changing Society (UNC Press, 2011). She was a 2005 recipient of the National Academy of Education/Spencer Postdoctoral Fellowship. Since 2011, she has served as the co-P.I. (with Christopher Lubienski and Janelle Scott) of two W.T. Grant Foundation-funded projects on how intermediary organizations promote research on incentivist education policies in urban settings.

Erica Frankenberg is a professor of education and demography at the Pennsylvania State University where she also directs the Center for Education and Civil Rights. Her research interests focus on racial desegregation and inequality in K–12 schools and the connections between school segregation and other metropolitan policies.

Kathryn McDermott conducts research on how federal, state, and local education policy affects educational equity. In 2015, she co-edited a special issue of the Russell Sage Foundation Journal of the Social Sciences, on the fifty-year history of how the federal Elementary and Secondary Education Act has changed U.S. public education. Her work on state policy has focused on the connections among accountability, standardized testing, and equity. It has been published in multiple journals and in the 2011 book High Stakes Reform: The Politics of Educational Accountability. More recently, she has investigated the ways in which local politics often lead to school choice policies that do not make equity a priority.

Janelle Scott is Robert C. and Mary Catherine Birgeneau Distinguished Chair in Educational DisparitiesGraduate School of Education, African American Studies & The Goldman School of Public Policy at UC-Berkley. 

Genevieve Siegel-Hawley, Ph.D. is an Associate Professor in the School of Education at Virginia Commonwealth University. She examines the scope and dynamics of school segregation and resegregation in U.S. metropolitan areas, along with policies for promoting more integrated schools and communities.

References:

Green, E.L., Apuzzo, M., & Brenner, K. (2018, July 3). Trump officials reverse Obamaʼs policy on affirmative action in schools. The New York Times. Retrieved 7/16/18 from https://www.nytimes.com/2018/07/03/us/politics/trump-affirmative-action-race-schools.html 

Meckler, L. (2018, December 13).  NYC plan to diversity elite high schools challenged in court.  The Washington Post (online edition).  Retrieved 7/17/19 from https://www.washingtonpost.com/local/education/nyc-plan-to-diversify-elite-high-schools-challenged-in-court/2018/12/13/37810eb6-ff20-11e8-862a-b6a6f3ce8199_story.html?noredirect=on&utm_term=.70bd1b94825b