DOCUMENT Rum

ED 102 224 UD 014 463 AUTHOR Hall, Leon; And Others T ITLV [Significant Issues in Education- Law.] Inequality in Education, Number 17, June 19/4. INSTITUTION Harvard Univ., Cambridge, Mass. Center for Law and Education. SPONS AGENCY Office of Economic Opportunity, Washington,D.C. :515B DATE Jun 74 NOTE 66p.

EDRS PRICE MF-$0.76 HC-$3.32 PLUS POSTAGE DESCRIPTORS Compensatory Education Programs; Discipline Policy; *Educational Opportunities; *Educational Problems; *Federal Programs; *Institutionalized (Persons); *Legal Problems; Program Administration; Racial Discrimination; Remedial Instruction; School Integration; Socioeconomic Status; Southern Schools IDENTIFIERS Elementary Secondary Education Act Title I; ESEA Title I

ABSTRACT This issue of Inequality in Education deviates from the usual format of in-depth discussion ofa particular topic to include reports on a variety of significant issues in education-law. Leon Hall summarizes the numerous experiences he has had with Southern desegregated schools and students and relates his conclusions about how desegregation is actually proceeding inthe South. In "Remedying Failure to Teach Basic Skills," GershonM. Ratner offers some preliminary thoughts on ways legal services attorneys might address the problems of the large percentage of children who are not taught adequately to read and write.R. Stephen Browning and Jack Costello, Jr. follow theprogress of Title I of the 1965 Elementary Secondary Education Act from its inception to the present in their analysis of how and why federal funds designatedfor poor and disadvantaged students continue to be illegally allocated and illegally spent. "The Equally Good Off, The Equally Bad Off,"by Thomas J. Cottle reveals the effects of economic and educational tracking on two young students from different backgrounds. Finally, Theodore E. Lauer depicts the lack of "Education for Institutionalized Childrenif and discusses the necessary examination of the incarceration process which must precede any improvement in the education offered to juvenile offenders. (Author/JM) U v..14!vi ., 71, rit At. :oaf INEQUALITY IN EDUCATION 01_ ,101 k1 VW EXA rf Number Seventeen June 1974 -! (. , . ; .1Pt../ ' k A Center for Law and Education Harvard University BEST COPY MIME

. CZ) t

C=i

...... _

.., .?.. = ,.. A .,, ,.....,...., ,..., ,...._ , aa,/ Ape; -rf A

Photo by Deborah Fetnitold INEQUALITY IN EDUCATION Number Seventeen, June 1914

Published by the Staff Center for Law and Education Editor; Leah Levy Harvard University, Larsen Hall Editorial Assistant: Kimberly Ersted 14 Appian Way Circulation: JoAnn Vigil Combt idge, Massachusetts 02138 Back Issues: Charles Fleischmann inequality in Education is published quarterly and is distributed for an annual subscription feu of$6.00.

The Center for Law and Education was established by Harvard University and the United States Officeof Economic Opportunity to protect and advance the legal interests of the poor through research and action on the legal implications of educational policies, particularly thoseaffecting equality of educational opportunity.

Acting Director: Hobert Pressman

Contents

3 Introduction Leon Hall 5 School Desegregation: (A (Hollow?) Victory Gershon M. Ratner 15 Remedying Failure to Teach Basic Skills R. Stephen Browning and Jack Costello, Jr. 23 Title I: More of the Same? Thomas J. Cottle 46 The Equally Good Off, The Equally Bad Off Theodore E. Lauer 61 Education for Institutionalized Children 59 Notes and Commentary 67 Publications from the Center

The research reported herein was performed pursuant to a grant from the Office of Economic Opportunity, Washington, C 20506 The opinions expressed herein are those of the authors and should not be construed as representing the opinions or policy of any agency of the United States Government.

2/INEQUALITY IN EDUCATION Introduction

This issue of Inequality in Education deviates fromour usual fqrmat of indepth discussion of a particular topic to include reportson a variety of significant issues in education law. It is hoped that the "samplings" will stimulategreater thought and focus attention on these often overlooked critical education matters. Leon Hall summarizes the numerous experiences he has hadwith Southern desegregated schools and students and relates his conclusions abouthow desegregation is actually proceeding in the South. In "Remedying Failure to Teach Basic Skills,"Gershon M. Ratner offers some preliminary thoughtson ways legal services attorneys might address the problems of the large percentage of children whoare not taught adequately to read and write. R. Stephen Browning and Jack Costello, Jr. followthe progress of Title I of ESEA from its inception to the present in their analysis ofhow and why federal funds designated for poor and disadvantaged students continueto be illegally allocated and illegally spent. "The Equally Good Off, The Equally Bad Off" by Thomas J. Cottle revealsthe effects of economic and educational trackingon two young students from different backgrounds.Finally,TheodoreE.Lauerdepicts the lackof"Educationfor institutionalized Children" and discusses thenecessary examination of the incarceration process which must precede any improvement in the education offered to juvenile offenders.

i;a1 3 SCHOOL DESEGREGATION:

A (HOLLOW?) VICTORY

SOME REFLECTIONS

by Leon Hall

In the long run, our aim isnot a probh,ri America has faced. As enunciated by society composed of people whoare FredricK Douglass in 1881 and echoedtwenty alikebut one which recognizes the years Later by W.E.B. DuBois: "The problem of individuality of each man and permits the 2Gth Century is the problem of the color. him without penalties to express the line."2 difference of his personality and his Central to the South's response has beenan heritageinhis own way. Properly attitude once expressed to me by a white Georgia speaking,therefore,notintegration fanner: "We will move as slow as possible," he but equality is our genuine objective.I said, "and as fast as necessary." This attitude in general is deplorable enough, but when it is held From my standpoint today, Iam convinced by persons in control of public institutions, it is thatBlacks and decent white Southernersare sure to breed tragic consequences. victorious in their twenty year struggleto deseg Beginning withthe Brown v. Board of regate public elementary and secondary education. Education3decisionin1954 andcontinuing We are the holders of a victory that parallelsthe through countless other major court decisions, the Union victory in the Civil War. And I think the legal victors have been the plaintiffs, Black parents reactions of many present Southerners in regardto and children throughout the South. The major losing the war of school desegregationare identical efforts to both block and implement the Brown to those of their forefathers upon losing the Civil decision for the past twenty years have been in the War. South where school desegregation was de jure. Though they clearly had lost the Civil War, Brown stated that schools should desegre- many Confederates continued their fight. When gate "with all deliberate speed," but allowed for the war of guns and bullets was over, the South limited delays if a school board could "(el stablish launched an active and psychologicalwar through that such time is necessary in the public inter- enactment of Ku Klux Klan terrorism and Jim est."4 School officials who opposeddesegregation Crow Laws; to this day many Southerners holdan seized upon the language of the court and for undying belief that they will "win." But, for all its some time were quite effective in delaying the tragic legacy, the South has been pushed harder desegregation process. Many refused to develop and farther than any other region of this country desegregation plans at all; those who did respond toward dealing with what is perhaps the greatest with "plans" tried to show why the schools could not be desegregated. Leon Hall is Director of the School Desegre- In 1964 the Supreme Court served notice, in gation Project, Southern Regional Council. This Griffin v. County School Board of Prince Edward article is based on a speech delivered at "The County, Virginia, that such delays were no Innger Children of the South: School Desegregation and acceptable: "The time for mere 'deliberate speed' It's Significance," a symposium held at theUnive has run out, and that phrase can no longer justify sitv of Virginia, Charlottesville in cooperation with denying these Prince Edward County school chil- SRC, April 1974. dren their constitutional rights to an education 5 5 BEST COPY AVAIlAill equal to that afforded by the public schools in the there are many placesstillin this other parts of V irginia,"8 country where the schools are either Four years later, the Court ordered that "white" or "Negro" and not ju.t desegregation take place immediately. It stated in schools for all children as the Constitu Greenv,County School Board of New Kent tion requires. In my opinion there is County, Virginia: "The burden on a school board no reason why such a wholesale dew' todayisto come forward with a planthat vation of constitutional rights should promises realistically to work, and promises malls be tolerated another minute.8 tically to work now. "6 The language of these Supreme Court rulings In October 1969, the Supreme Court again speaks to the semantic tenacity shown by school held that the constitutional right to a desegregated officials to avoid desegregation. Each and every education could no longer be delayed, In Alex Court order has been meticulously picked apart as anderv. Holmes County, Mississippi Board of school authorities have sought to avoid desegre Education it held: "The obligation of every school gating. Their most appreciable result has been to district is to terminate dual school systems at once delay the inevitable. and to operate now and hereafter only unitary The legal offensives carried out thus far by schools."? The late Justice Hugo Black stated his advocates of equality of educational opportunity own impatience in precise terms; in elementary and secondary education have been Ithas been fifteenyears since we designed to end segregated schools. But to this declared in the two Brown cases that a point all rulings by the Supreme Court have fallen law which prevents a child from going short. They have been interpreted to deal only to a public school because of his color with mixing bodies in the powerless school cam violates the Equal Protection Clause. munity composed of faculty and students. The As thisrecordconclusively shows, immense power of the superintendent and his

TABLE 1: EMPLOWEN1 AND DOLLAR LOSS FOR BLACK EDUCATORS IN SEVENTEEN SOUISERN AND BORDER 61 AT ES°

Expected Number of Black Number 01 Bieck Teachers AO WI Cost Tot. Tota, Pup! Number of Unfit., Number of Teachers Average Pet Cent Diso laced Teacher Black STATE Pupil. Talent's Teacher Black Singleton Black Communities t970 1970 Rah° Students Degree Teachers Di Helene° by Dis Salary criminatots 1970 fn Dollars Basal Oh 1910 1970 Puna Hiring and Teacher Dismissals Ratio

Alabama 780,286 31.279 25 268,593 10.744 9,452 12 1,292 6.964 8,984,568

Arkansas 368,035 15,299 25 107,213 4,289 3,121 27 1,168 6,445 7,527,760 Delaware 128,735 5,570 23 26,438 1,149 804 30 345 9,300 3,208,500 Florida 1.436,487 59,648 24 332,121 13,838 11,340 18 2,498 8,600 25,482,800 Georgia 1,099,446 43,818 25 364,868 14,595 12,236 16 2.359 7,372 17,390,548

Kentucky 654.711 26,672 25 61,47. 2,459 1,287 47 1,172 7,624 8,935,328 Louisiana 841,656 35,184 24 340.447 14,188 12,145 14 2.040 7.220 14,728,800

1.1arytend 911,618 37,344 25 220,166 8,807 7.252 17 1,555 9,885 15,371,175 Mississippi 533,289 22,301 24 271,932 11,331 9,163 19 2,168 6,012 13,034,016

MOIOuts 857,890 35,607 24 141,005 5,875 3,645 37 2,230 8,091 18.042,930 N Carolina 1,187,048 47,221 25 351,18'2 14,047 10,996 21 3,051 7,744 23,626,944 Oklahoma 455,754 18.656 24 47,720 1,988 1,400 29 588 7,139 4,197,732

S. Carolina 640,148 25,746 25 262,974 10.519 8,482 19 2,037 7,000 14,259,000 Tennessee 877,778 33,625 26 188,754 7.260 5,724 21 1,536 7,290 11,197,440 Texas 2.468 P33 105,186 23 398,187 17.312 12,672 26 4,640 7,503 34,813,920 Vir5ins' 1,067,292 45,489 23 258,280 11,230 8.498 24 2,732 8,200 22,402,400 AL %townie 392,690 16,223 74 18,972 791 618 21 173 7,850 1,358,050 14.701.036 TOTALS 604,868 N A 3.660,322 150.419 118.835 31.584 244,561,911 a The Urban Review, vol. 6, no. 3, 1973, p. 8. Reprinted with the permission of APS Publications. 6 /INEQUALITY IN EDUCATION fI BEST CopyAVAILABLE officeto maintain the status quo have been plan, proposed it and was fired by the school untouched. board. These rulings have also fallen short inthat Black students are also falling victim to the they primarily address questions of the what,why continuing resistanceto desegregatio.. We are and (since 1964) when of desegregation,while witnessing a phenomenon withinthe student very rarely addressing the how. They all stop at community ofthe region which the Southern the school house door, even though experience Regional Council (SRC) and others have come to teaches us that policies decided at the top deter call "the student push-out." A student who has mine to a great extent the degree of desegregation been "pushed-out" is one who has been expelled that 'willactually occur within a given school orsuspended from school under questionable district. The greatest obstacle to desegregation is circumstancesor who, because ofintolerable that the resistors are now, and have been forsome hostility directed against him or her, finally quits time, the implementors. The majority of imple- school.13 Two of the chief methods of displacing mentors are still resisting the dictates of the law, students are suspension and expulsion. genuinely embodying the Georgia farmer's philos Suspensions and expulsions in the state of ophy of moving as fast as necessary andas slow as Florida are illustrative of the magnitude of the possible! Although not all school authoritiesare TABLE 2; PRINCIPALS HIRED IN ALABAMA white, the overwhelming majorityare. In 1974 of DURING 1966-1970. By Race* approximately 17,500 school board members in 196611957 1968 1969 1970 the eleven 'Southern states, 325 were Black;9 of 300 the1,558 775 schoolsuperintendentsinthe ten 190 states,10 13 were Black." 2:5 A report published in The Urban Review 200 175 noted, "School policies relative to desegregation 150 that various southern school districts have adopted 125 100 are deliberate in their intent: the annihilation of 75 Blackeducationalleadership in thosedis 50 29 tricts. ...Between 1954 and 1970, in seventeen 0 OW 1I 1 southern and border states, the Black student BW eri OW IIW population increased from twentythree percent of the total to twentyfive percent; the Black teach- TABLE 3; RELATIVE DECREASE OF PRINCIPALS IN ing force, by contrast, decreased from twentyone ALABAMA ACCORDING TO RACE 1966-19708 1966 1967 1968 1969 1970 percent of the total to nineteen percent."12 I 100

1 1!10 1 100 Desegregation and Displacement 1 0!)0 000 :150 The problem of the displaced Black educator Hs° MOO is one that has exacted a heavy toll in the ranks of ,S0 Black principals (as illustrated in Tables 2 and 3) /00 who havelongbeen symbols of attainment, 650 000 authority and respect in Southern Black commu SSC nities. Though these charts are based .00 on statistics 4!90 from Alabama, this situation in varying degrees 400 applies Southwide. .150 100 Therearealsosensitivesuperintendents 150 forced out of public education. Many of these 200 150 people decided to live up to the law, and the law too says that schools must desegregate. In a medium SO 0 sized city in Georgia, a white superintendent not a w a w a vvieIW c.% known for past liberalism decided to follow the a The Urban Review, vol. 6, no. 3, 1973,p. 10. courts' directions. He drew up a desegregation Reprinted with the permission of APS Publications.

7 Table 4 School Discipline: Blacks and Whitesa 197?-73

% Black Number 96 Black Students of Suspended Students Those Suspended And Expelled, Enrodtd and Expelled Both Races

Brevard 11 22 3,416 Broward' 23 50 4,120 Collier' 11 48 163 Dade 25 53 6,947 Indian River 29 50 432 Lez 18 44 1,794 Martin' 25 41 490 Monroe 12 29 463 Palm Beach 27 59 2,708 St. Lucia 45 72 1,490

No reported expulsions. Source:District superintendents' reports to U.S. De partment of HEW, 1973. In some cases, numbers may be estimates.

a -SchoolDisciplineHitsBlacksHardest," Tom Morganthau,Miami Herald,Feb. 3, 1974.

(push-out) problem throughout the South. "Black lected for the first time this year as part of the students last year were suspended and expelled HEW survey, are fifty-seven percent higher than from Florida schools at a rate two and a half times the total predicted last fall by Governor Reubin higher than the rate for whites," according to a Askew's education adviser, Dr. Claud Anderson. In report of the Governor's Task Force on Disrupted testimony before a legislative subcommittee in Youth.14 And the Miami Herald reports that, "in November, Anderson said he thought suspensions seven of ten South Florida counties, blacks were of students of both races totaled 50,000 a year. ejected from school at an even higher rateas More recently he stated that the HEW figures show much as four times the rate for white students."' 5 "the problem is even bigger than we expected" Statewide, 80,023 students were suspended and added that still other suspensions not reported and expelled during the 1972-73 school year by schoolofficialsmight double theofficial accordingtoanannupdesegregationsurvey figures.17 requiredbytheU.S.Department ofHealth, Education and Welfare's Office of Civil Rights. Of Harassment of Black Students the 80,023 suspended, 35,037 (forty-five percent) wereBlack,althoughBlacks only comprised A few examples illustrate the continuing twenty-three percent of the state's public school harassment of Black students. A Black student enrollment last year. On a per-capita basis (i.e., leader attending a desegregated high school in compared to the number of students of each race Wilcox County, Alabama was suspended without a enrolled in. Florida schools in 1972-73), Blacks hearing for his participation in a politically-active were about two and a half times more likely than student action group. A Black youth was sus- whites to be suspended and nearly three times pended frlm his Arkansas high school for four more likely to be expelled.16 months for fighting in school. His white opponent The statistics on school suspensions, col- was suspended for seven days.

8 /INEQUALITY IN EDUCATION In a Mississippi school, a Black sophomore about and complex processes and approaches fur was expelled because he fled the campus during a Black children and Black educators. They have series ofracialfights. When he attempted to decided to handle desegregation in away that reenter school that same day to complete an makes the price Black communities must payso assignment, he was confronted by the principal very high that Black citizens themselves will of who accused him of trespassing. The student was necessity stop pushing for desegregation and ask: wrested, spent three days injail and was not Is it worth it? Many Black parents are forced to allowed to return to school. His trial has been raise this question when they look into theeyes of postponed twic,v,18 their children, eyes that once held gaiety, sponta- Another Black student, now in college,says neity and joy and that now show sadness, frustra that when her high school was desegregated the tion and anger. Isit worth sending children to active Black student leaders were placedon a encounter teachers who don't respect their person- "BlackList," that white school administrators hood? Is it worth having children tested ina way continuallyharassedBlack students, and that that labels them stow learners or educablemen- many Blacks were suspended or expelled for tally retarded or uneducable? Is it worth exposing chewing gum in class, for suspected fighting, for delicate young minds to persons who think they supposed insubordination and other evidence of are members of a race that has basically weak "inappropriate behavior." familystructure as asserted byDaniel P. Actual statistics on (Black) student push- Moynihan? Isit worth exposing masses of young outs aredifficulttouncover, but suspension, Black people to those who believe that Black expulsion and dropout figures suggest the dimen- people are inferior based on their genes as asserted sions of the disproportionate number of Blacks by the Schockleys and Jensens? Is it worth sending who, for whatever reason, are leaving school. Black children to schools where the authorities St. Petersburg, Florida experienceda rise of disproportionately dismiss them, push them out suspensions from 3,500 in 1968 69 to 8,200 in and justify their actions with insinuations and 1970-71. Although only sixteen percent of the blatant statements that Black children are not St. Petersburg enrollment is Black, aboutone half accustomed to discipline? Is it worth it to send of the suspensions were of Black students. Other children and teachers to schools in a system that Southern school systems exemplify similarsuspen- has almost completely eliminated any vestiges of sion statistics as shown in Table 5. Black schools while retaining mcst white educa Based upon my examination of how the tors, facilities, symbols and conveniences? majority of school officials have carried outcourt ordered desegregation, I am thoroughly convinced The Enigma of Resegregation that theyhaveresortedtoan unwritten-an unspoken-tacticthatisquite ominous inits Recognizing that total desegregation is and application. Itis clear that most school systems has been the single most promisingavenue to equal have chosen the most disruptive, damaging, round- educational opportunity, Randolph Blackwell has

Table 5a

Year School System Total Suspensions % Black

1972 -73Miami, Florida 12,000 71% 1972 -73Broward Cty., Flor ida 7,288 43% 1972 -73 Richland Cty., S.C. 1,964 77% 1971-72 Dallas, Texas 12,000 45% 1971-72Charlotte-Mecklenburg Cty., N.C. 6,021 90% 1970-71Tampa, Florida 2,697 50%

a The Student Push-Out, The Southern Regional Council, 1973. 3 pinpointed the situationin whichIthink we It is true that some Black children and some advocates for desegregation find ourselves: white children are suffering psychological damage We have waged nearly a twenty year in public schools, although the simple presenceof fight to desegregate the schools and Black and white children and educators within the now youhearpeopleadvocating same environment does not causeemotional dam- segregated education. Some of the age to children or adults. If the authorityfigures people you would expect to advocate within that setting perceive Black educators and integratedschools aresayingthe students as outsiders (to be contained, gottenrid strangest things in support of segre- of and taught a lesson), then the potential for gating the schools. Black folk talking Blacks to be genuine victims of psychological about segregating the schools after damage is certainly present. But if one assumes having spent more than twenty very that merely being within the same facilities with deliberate years, bringing to bear the white people causes Black students psychological best minds that this nation has,in damage, itis the equivalent of assuming that by ordertostructurethe direction of co-existing in the same society with white people, desegregating schools. Black folk Black people will naturally suffer psychologically. talk ingaboutthepsychological Any damage is not caused by desegregation damage that black kids are suffering as or integration themselves but by the waydesegre- a result of integrated educationthe gation is carried out in most school systems (firing loss of identity, the loss of purpose; all ofBlack educators, closing of Black schools, sorts of funny things on the heels of demotion of Blacks, etc.) and by the hostile and having spent twenty years trying to set negative atmosphere that has usually accompanied this thing in the right direction.It mass school desegregation. Thispoint was sup- really does sound funny to a person ported by several Civil Rights Commission reports like me, who eighteen or twenty years in1972 on school desegegationinfourteen ago, sat in discussions and heard the communities. The Commission found that the best minds inthis country arguing process of desegregation is almost never asmooth about the psychological damage that one. Mistakes fraquently are made; pettyincidents was being done to black kids and can throw an anxious communityinto confusion, white kids by segregated education. and school systems that seem to have turned the We have gone full cycle, because the corner toward success suffer serioussetbacks. Brown case, to a very great extent, Above all, the Commission found that successful turned not on a legal argument so school desegregation is not achieved without sub- much as itdidon a social- stantial effort by many groups and individuals: the psychologicalargument. We argued school board, the superintendent, the teachers, the with the court that there was no such news media, civicleaders and students them- thing as equal educationifit was selves.20 segregated. We argued that there was a kind of social, psychological damage The Increasing Victory Inside Schools that black kids and white kids sus- tained and would always sustain if the Ihave traveled throughout the South lis- schoolsremainedsegregated. We tening to students, offering advice and advocating fir.aIly got people to believe that argu- that they be treated with respect; urgingschool ment. And now, in 1972, I am hearing authorities to involve students in meaningful ways folktalkaboutthepsychological within school decision-making processes; attempt- damage that people suffer from in- ingtoassiststudents astheyseektopin- tegrated education. .. .What weneed point the sources of their problems; urging them to do is stop long enough to look at to realize that their problems are notproblems of where we were on sound ground, race and are not caused by other students.The because we are becoming awfully con- problems are in many cases endemic of the system fused asto what makes a healthy and the schools they attend. I have encountered a society.1 9 set of dynamics further convincing methat de- 10 /INEQUALITY IN EDUCATION 13 segregationis a victoryfor decency and that judice about each other...If the young desegregation otters great PlUittiSt: for future gen. people could run the schools there erations. would be no prejudice and no chop. These dynamics are the attitudes and actions outs. One reason the students ur' of a growing number of students in desegregated dropping out is because of the esta. schools. Here in their words are a few illustrations blishment, which is struare.23 of what increasingly represents the majority view A white student in South Carolina: of students. From a white tumor in South Carolina: There's a lot to criticise about integra- It is obvious that most school admin. tion, but it has a lot of good points. istratiuns do not listen to the students. The two races should be living to. If school officials would begin to listen gather and finding out a lot about each they would find much helpful infor- other. In the school l go to, there are a mation.The administration would lot of Black officials in school govern know that a majority of the students ment and they have a lot of white (6416 black and 54% white )19 are in support.Integrationcan...work out favor of integration and wantmore real good.24 interracial projects and activities that A white student in Columbia, South Carolina: would produce better relationsamong There is a long way to go in integra- the students. From the administra tion and a lot of impending dangers tion's standpoint this would beex beset the schools' path. But it also has tremely rewarding. These projects and its assets. Most students want integra- activitiescouldfosterbettercorn. tion to work and are trying to be a munications and relations among stu- part of an effective unitary school dents, thus lessening the chances of system. Of course, there are those racial conflict. But unfortunately most students who want integration to fail school administrations have remained and they must be dealt with. The qu iet.2 1 ultimate goal of integration, I believe, A Black high school senior in Charlotte, North is to have all students attending school Carolina : inpeacefulcoexistence."Peace," believe integration has to work...if Martin Luther King once wrote, "is the parents and adults would stay out not merely the absence of tension but of it and let the kids work it out. It's the presence of brotherhood." Schools the only way to advance. Howare we in the South are a few years away going to change? Through education in from brotherhood.But as long as the white .man's way, the power lies in students continue to dedicate them- his hands. We have no power but the selves to making the unitary school few jobs they throw Blacks. I want the system work, there will be hope for a best and the bestis not in Black future of dignity and respect for all schools.22 ...in America.25 A Black student in Greenville, South Carolina: The principal of an elementary school lo The older people is the problem.I cated in a predominantly Black section of Pontiac, thinkifthey justlet the younger Michigan related how he encountered an "unex people run schools it would be better. pected wrinkle" in the busing program there. After I had aletter from South Dakota the busing program had been in effect for about a University and the students there feel week, the white students started to "flow out into , the same way Ido. If the younger the community" when they alighted from the people ran the schools we could get buses at school in the morning. The students along, but as long as the older people would go to the homes of their new Black are running them and standing in our classmates in the area and walk back to school way, it will never change our world with them. Some of the Black students decided to completely; we will always feel pre "reciprocate" and insisted on riding home with

11 11 their wite blends in the ilfternoon anti then no stuff" attitude. Though manyof the issues and catching a late school bus back to their own problems faced by students affect both Black and community. Although the children were admoo white, the very nature of dui Black existencein some the practice and the princi. the South, in America, makes Black students' pal and his staff "finally surrendered to the power concerns and problems broader and possiblydeep of friendship."26 er than those of white youngpeople. For this A WO SRC report describes a press con reason I will concentrate on the "take nostuff" terence called by Black and white high school attitude of Black students. students in Charlotte, N.C. to ask the media, the school board and the superintendent to "leave The "New" Militancy them alone" and stop distorting trivial incidents and blowing them out of proportion. They said When icame to the Southern Regional that they were getting along fine. One community Council in the fall of 19 /0 (the year of massive Leader expressed his conviction that most students school desegregation), the Council and others were in Charlotte "can get along and want to move quite aware of wide scale studentdisruption aheatil"2 7 within public schools, primarily secondary schools, We at SRC regularly read and hear of There were daily reports of fist fights, demonstra students who are members of a race which tions,jailings, boycotts, schools closing to cool represents a minority in their particular school off, sitins, etc., involving substantial numbersof being elected or appointed by fellow students as students.InfactIwas hired to develop and head of the cheering squad, queen of the school, implementa program to workdirectly with president of their class, homeroom president and studentsto go into the eye of the stormthe president of the student council. secondary student community. Early in ourefforts

Ihave also observed simultaneously what I certain aspects of the problem became clear: describe as a heightened militancy on the part of 1. In many cases Stark students students. This militancy is shown most clearly by held grievances that, in my esti white students in the area of student rights. And mation, were quitevalid and on thepartof Blackstudents,ithas been they were sincere in their efforts manifested most clearly in a "no nonsense," "take to resolve them: not beingal-

..NIPAgS5 Cartoon by David Sipress

12 /INEQUALITY IN EDUCATION AO towed to participate in extra- the50'sand60's, Ihave realizedthatthis curricularactivities; nut being militancyis not new, but is to a great extent a allowed to observe Dr. Martin continuation of the Movement. Coming this close Luther King's birthday; not be- to equal educational opportunity necessitated a ing allowed to wear afro hair great deal of direct mass action in which Black styles; suffering from dual dis students were overwhelmingly the "shock troops:" ciplinary standards; being segre- marching in the streets, sitting in, going to jail, gatedwithin desegregated picketing, etc. (I was one of theml) schools; not being permitted to In desegregating the public schools, an in- have a Black history week; and creasing amount of the burden of the struggle for anendlesslistof verybasic equality in education is shifting into the hands of grievances. the students. It appears to me that society has 2. Most school officials wereill- askedhas forced publicschoolsto do what equipped to handle many of the society itself is not yet prepared to do: Desegre- problems desegregationpre- gate. Black and decent white Americans (primarily sented,particularily human through direct action, the courts and the federal problems; and many were unwill. government) have pushed the schools farther and ing to listen to students and/or more consistently on race issues than any other others who were supportive of institution in this country, But now the courts and publicschools and desegrega the government are becoming more and more of tion. an obstacle than an asset.. (In fact, a successful suit 3. Mos, schools under the strain of has been filed against HEW requiring the agency to disruptionshadsevereinner- resume its responsibility for securing compliance schoolcommunicationsprob- with the law.28) America has conveniently placed lems: principal/teacher, teacher/ responsibility for implementing school desegrega- teacher,teacher/student,prin- tion on educators and on students. c ipal /student,student/student. Charles E. Silberman states the situation this Communication across "the way: color line" was almost nil, but What we are discovering, in short, is communication within the Black that the United Statesall of it, North student community was abit as wellas South, West as well as more solid and fluid. Eastis a racist society in a sense and 4. Many Black students arrived at to a degree that we have refused so far their desegregated school aware to admit, much less face. . . .The of the potential for trouble, ful tragedy of race relations in the United ly determined not to be mis- Statesisthat thereis no American treated ("messedover")and dilemma. White Americans arenot somewhatpreparedtoreact tornandtortured by the conflict againstrealorperceivedin- between devotion tothe American justices. creed and their actual behavior. They 5. There was very tittle awareness are upset by the current state of race of orattention giventothe relations, to be sure. But what troubles potentials of students in assisting them is thattheirpeaceisbeing the process of desegregation. shatteredandtheirbusinessinter- 6. A nucleus of Black students in rupted.29 most communities kept in con- The (false)issue of busing ("It's not the tact with local adults who ad buses...it's the Niggers"). the misuse of testing, vised and counseled them about tracking, ability grouping, private segregated ac- the problems they encountered ademies, etc.; all represent forms of the continuing in school. resistance to desegregation. America is persistently Reflecting on the Civil Rights Movement of unwilling to afford all children an equal education 13 13 as it persistently fails to provideequal opportunity 8. Source for total number of school board mem each state citizens. This poses a real possibility of bets: National School Board Association and toall Office of Public instruction. Source for total numberof hollowing out a longfought.for victory by ad- Black school board members in the South:Th3 Voter vocates of equality in education. 0ducation Project, Atlanta, February 27, 1974. And yet with all of the setbacks and despair, 10. The state of Texas has 1053 superintendents. we are victorious in that Black and whitestudents At the time of this writing, the figures were notavailable seem to be hewing out of theirinteractions an by race. appreciation and respect for each other's worth 11. Source for the total number of Black superin- of school and dignity and are judging each other not by skin tendents in ten states and for the total number superintendents in eleven states: The stateOffice of color but by the content of their characters.We Education in each state. continue to are victorious when Black students 12. "For Black Educators: Integration Brings the hold a burningfirewithintheir souls and a Axe," John W. Smith and Betty M. Smith, TheUrban willingness to struggle for freedom. We are victori- Review, vol. 6, no. 3,1973. ous in that we have eliminated mostof the legal 13. The Student Push-Out: Victim of Continued barrierstostill another of our rights. We are Resistance to Desegregaion, The Southern RegionalCoun- victorious in that we have but one more major cil and The Robert F. Kennedy Memorial,1973. barrier to an equal educational opportunity :the 14. Governor's Task Force on Disrupted Youth, administrativeimplementors who are alsothe Phase I Report, Sept. 14, 1973. resistors.Thisbarrier,however,isno longer 15' "School Discipline Hits Black§ Hardest," Tom insurmountable because most school boards and Morganthau, Miami Herald, February 3, 1974. many superintendents are elected, and we now 16. Though suspensions and expulsions in Florida available is that Florida have the vote. We are victorious in that we have are high, the reason the data is school officials are sensitive to the problemand are traveled farther down the road to equal oppor- attempting to pinpoint causes for remedial purposes. tunityin elementary and secondary education 17. Tom Morganthau, note 15. thaninany other area except perhaps voting rights. As we continue to pursue equalityin 18. Ibid. See also note 12. 19. "Perspective on the Brown Decision," Ran- housing, in employment, in health, in the admin- dolph T. Blackwell, New South, vol. 28, no.1, winter istration ofjustice, we can benefit from the 1973. experiences gained on this near completed jour- 20. The Diminishing Barrier: A Report on School ney. Desegregation in Nine Communities, the U.S. Commission on Civil Rights, Washington,D.C., winter/spring 1972; Footnotes School Desegregation in Ten Communities, theU.S. 1. Oscar Handlin, Fire Bell in the Night: The Crisis Commission onCivilRights, Washington, D.C., June in Civil Rights, Beacon Press, 1964. 1973. View," 2. Great Lives Observed, "Frederick Douglass' Bi- 21. "SchoolDesegregation: A Student ography," Benjamin Quarles, ed., Prentice Hall, 1968. Richard Gergel, New South, vol. 26, no. 1, winter 1971. 3 Brown v.Board of Education, 347 U.S. 483 22. Voices from the South: Black Students Talk Schools, a 119541. About Their Experiences in Desegregated special report of the Southern RegionalCouncil, Betsy 4 What the Supreme Court Has Said About School Fancher, August 1970. Desegregation, Leadership Conference on Civil Rights, Project One Nation, The Washington Research Project, 23. Ibid. Washington. D.C., 1972. 24. ibid. 5. Griffin v. County School Board of Prince Ed- 25. See note 21. ward County, Virginia, 84 S. Ct. 1226 (1964). 26.See note 20. 6.Green v. County School Board of New Kent 27. The South and Her Children: School Desegre- County, Virginia, 88 S. Ct. 1689 11968). gation 1970 71, a special report of the Southern Re- 7. Alexander v. Holmes County, Mississippi Board gional Council, March 1971. of Education, 90 S. Ct, 29 (1969). See also, What the 28.Adams v. Richardson, 480 F. 2d 1159 (D.C. Supreme Court Has Said About School Desegregation, Cir., 1973). note 4. 29. Charles E. Silberman, Crisis in Black and White, 8. JusticeHugoBlack, Alexander v. Holmes Random House, 1964. County, note 7.90 S. Ct. at 17.

14/INEQUALITY IN EDUCATION REMEDYING FAILURE TO TEACH

BASIC SKILLS: PreliminaryThoughts

by Gershon M. Ratner

Much educational litigation in thiscountry in helping him to adjust normally to has sought to equalize, upgradeor, in certain cases, his environment.8 restrict educational inputs. Cases have sought, for In 1972 the Court explicitly recognized that it was example, to equalize the educational environment vitally important to our society for all children to and overall educational inputs for all students by master the "three R's," at least through the eighth racial desegregation,1toincrease thelevelof grade level.9 educational expenditures for certain students,2to Yet a large percentage of students are not requireprovisionofschoolItinehes,3to end attaining sufficient masteryof even the most exclusion of exceptional children4 and to abolish minimal and basic educational skills. The results of corporal punishment in the schools.5 Butas of this 1971 nationally standardized reading tests in the moment, virtually no legal effort° has been made Boston public schools, for example, indicated that to ensure that the schools successfully use their the vast majority of students were seriously failing inputs to achieve perhaps the single most impor to learn to read adequately. Although in second tant output: that all children learn, at a minimum, grade, most students were reading at or about the the basic skills of reading, writing and arithmetic. national average, by sixth grade, fifty percent of This article presents a preliminary analysis of the students were one full year behind the national how lawyers might attack public schools' wide average, and by ninth grade, nearly two and a half spread failure to ensure that all educable students years behind. Moreover, the median ninth grade learn the basic skills. Although the article focuses studentinalmost half of the Boston schools on possible litigation, much of the analysisis (46.4%) was more than three years behind, and the equally applicable to possible remedies through median student in oneseventh (14.1%) of the state legislation or administrative regulations..? schools was more than four years behind.1° In 1954 the United States Supreme Court Analyzing the test figures in light of relevant recognized that: economic and racial data, two basic conclusions Today education is perhaps the most about inadequate learning of basic reading skills important function of state And local emerged. First, the problem was not confined toa government....lt is required :n the per- single section of the city, economic groupor race, formance of our most basic public but appeared throughout virtually the entire city responsibilities,evenserviceinthe school system. Second, the system failed worst in armed forces. It is the foundation of the poorest, predominantly minority sections of good citizenship. Today itis the prin- the city, failed somewhat less in the slightly less cipalinstrumentinawakening the Door, predominantly white sections, but generally child to cultural values, in preparing succeeded in the wealthiest, middle class, white him for later professional training, and areas.t There is evidence that Boston school chil- Gershon M. Ratner is the Associate Director dren's widespread failure to learn up to grade level forLitigation of the Boston Legal Assistance applies as much to writing and arithmeticas it Project. does to reading.12 This pattern of large numbers

13 15 of urban children, particularly low-income and prepared for litigation. It may be much easier to minority children, falling progressively behind in get expert testimony that a particular student, basicskillsthe longer theystayin schoolis rather than a class, has the ability to learn, and characteristic not only of Boston but of many that therefore the school system was derelict in school systems throughout the country.13 failing to ensure that he did learn. A court may As the Supreme Court has alluded to,14 find the plight of a single individual more ap- failure to learn basic skills frequently has disas- pealing and readily understandable than the plight trous consequences, not only for the individuals of a class. And a court may be more willing to give who fail but for the society at large. Interviews relief to an individual, since individual relief would with Boston area employers confirmed that per- invariably requireless governmental expense or sons who havenot masteredbasic skillsare judicial intervention in the administration of the frequently either denied jobs outright, or, if hired, defendant school system than relief for a class. are forced to remain permanently in low or entry Once relief is provided for a single individual, the level lowpaying jobs.15 Numerous national stud- same relief ought to be available to the class. iesindicate thatin the future persons without Representing a class, however, has the major mastery of basic skills wil! be increasingly doomed advantage of publicly dramatizing the problems of to functional unemployability.16 Further, a dis- the entire class,20 and,ifitis successful, will proportionatelylarge number of children who produce a remedy for the entire class rather than have failed to learn basic skills become juvenile merely for the individual. Further, if the plaintiffs delinquents1 7at great economic, psychological are able to prove that the school system is failing a and social cost. Beyond this, people unable to large class of children, it may be much easier to participate intelligently in the political process due satisfy the court that the failures lie in the school to lack of basic skills constitute an incalculable system rather than in the ability of the students.21 loss to themselves and to society. In defending a suit against an individual student, But what, if anything, can lawyers do to the school system might try to impugn the ability, require schools to teach all educable children18 motivation or family background of the single adequate basic skills? To answer this question, it is individual, but would find it virtually impossible useful at the outset to distinguish between two to prove such factors for each member of a large different possibleobjectives.First,it may be class. possible to represent an individual student, either Litigation strategies for the individual or to recover monetary damages for denial of educa- class suit differ in a number of other factors and tion or to compel the school system to provide emphases. Although it might be more difficult to remedial education to him, or both.19 Second, it show that all members of a class, rather than a may be possibletorepresent the class ofall single student, had the ability to learn, it would be students in a school or school system who are possible to show the system's irresponsibility in failing to learn basic skills adequately, to compel failingthe entireclass by showing that other the system to compensate the class for denial of systems succeeded with similar classes of children education, to compel remedial education or to (without providing the factors that made any partic- institute appropriate system-wide changes to in- ular child succeed). Such evidence of success with crease the level of learning of all children in the similar classes, however, might not be very useful class. in establishing the system's responsibility for the There seem to be both advantages and failure of a particular child because the fact that a disadvantages in representing either the individual large class of children with certain economic, racial or the class. Similarly, competing factors for each and ethnic factors in common was able to succeed approach must be weighed in determining whether on the average is not probative that any particular itis preferable to seek money damages, remedial child sharing these common factorsisable to education or a changein the entire teaching succeed. system. As to possible remedies, monetary damages Representingasingleindividual has the has the obvious advantage of compensating a child obvious advantage of greatly narrowing the scope or his family for the loss .of earning power, and for of facts which would have to be investigated and the frustration and humiliation suffered as a result

16 /INEQUALITY IN EDUCATION of the school's failure to effectively teach the child does have the substantial drawback of requiring basic skills. The threat of damage actions may be intensive factual investigation and expert witness an incentive to improve teaching. On the negative preparation before a court would be willing to side, however, damages by themselves will not ordera school system toinstitute changes in correct the learning deficiency nor enable the child teaching practices, either pursuant to direct court to cope adequately with his remaining occupa- order or pursuant to a plan devised by the system tional, cultural and political life. Moreover, courts itself.24However, the immense advantages of may he extremely reluctant to construe the law as long-termimprovement inthe system andin establishing a duty to ensure that children learn children's motivation and level of learning make it basic skills (or, if they do so establish, to actually worth pursuing. award substantial damages) if they thereby open To substantiate the need for basic instruc- up the local and/or state government to numerous tional change, plaintiffs must first be prepared to damage suits. prove that there are large25 numbers of students Requiring the school system to provide a in the system who are failing to learn basic skills program of remedial education in the particular adequately.26 Second, plaintiffs should note that inadequately learned basic skill or skills has the the class they are representing consists only of advantage of trying to directly correct the defect. educable children. Third, evidence should be pre- In this instance, one must seriously question how sented that other systems, either locally or nation- wellremedialeducational programs work. The ally, are effective in teaching basic skills to classes better any particular program is demonstrated to of students with economic,racial, ethnic and work, the more sensible it is to seek to implement social backgrounds comparable to the plaintiffs'. it, other things being equal. However, even where Proof of these three elements should be remedial programs may be proven effective, two sufficient to create a presumption that the defen basic problems suggest themselves.First,ifin- dant system is acting inappropriately. The court adequaciesina systemarecorrected by the might well order the defendant to examine the remedial remedy, the regular, defective teaching operations ofschools which successfully teach program remains unchanged. comparable student populations and try to experi- Second, existing failures to teach effectively ment with orinstitutethose instructional ap- are due not merely to inappropriate instructional proaches of the successful schools that are not methodsorcurriculum,22but alsoinheavy already used in the defendant system. measure to teachers' lowexpectationsfor Although it may not be necessary, it seems students' ability to learn which have destructive highly desirable that plaintiffs be able to show effects on student motivation.23 A change to an three further points. Fourth, plaintiffs should have intensive remedialmethodology may produce experts who are able to identify the characteristics shortterm increases in the level of learning basic of the comparable successful schools nationwide skills but unless students are motivated and able to and explain the extent to which the anecdotal and learn on their own after the end of a remedial academic literature on teaching corroborates the course, the remedy is much too limited. The same importance of the characteristics they have identi- children will continue to need "remedial" courses fied." in basic skills every year. This is not the intended Fifth, plaintiffs' experts should have ana- function of "remedial" programs and they should lyzed defendants' system to prove all the respects not be so used. in which it does not use the educational practices Requiring the school system to make neces- which characterize the successful schools. Sixth sary changes in its regular teaching to reach those and finally, if defendants are unable or unwilling children who would otherwise notlearnade- to present their own reasonable plan, plaintiffs quately has the major educational and economic should be prepared to present concrete recom- advantage of forcing school systems to discard mendations to the court as to what range of inefficient and ineffective teaching approaches. In alternativechanges should be implemented in this way, essential 1ongterm improvements in the defendant system.29 education of the class of affected children would If plaintiffs are able to establish each of the be institutionalized for the future. This remedy above points, they will then have to demonstrate

try 17 that defendants do have a legal duty to ensure that mined what level of learning of basic skillsis all children learn basic skills to a certain standard. necessary for education to be "adequate," the On the above record, except in the unlikely event Supreme Court has enunciated the standards by that defendants were able to show that they had which such "adequacy" must be judged: a level already incorporated substantially all of the char- sufficient to enable citizens to participate intelli- acteristics of the successful schools, the courts gently in the political process, to qualify for jobs should order defendants to institute appropriate and be economically self-sufficient, and to be able changes, eitherpursuant to a court approved to satisfactorily adjust to the technological, cul- defendants' plan, or,in default thereof, direct tural, social, economic and political complexities court order. of modern society.34 A public school system's legal duty to ensure Achieving these purposes requires that all that all children learn the basic skills flows from a children learn basic skills at least to the level of the number of sources, including the Due Process and national norm for eighth grade.36 Moreover, given Equal Protection Clauses of United States Consti- the constantly increasing rate of change in our tution, state statutes and constitutions and state society and the corresponding increase in the need common law. From the outset,itshould be for heightenedintellectual perception,36 "ade- understood that in our country, teaching children quate" education today for children who will be the basic skills of reading, writing and arithmetic is living much of theirlivesin the twenty-first a central purpose of public education. In Wiscon- century may well require a mastery of basic skills sin v. Yoder the Supreme Court recognized that at least to the level of the current national norm the teaching of basic skills had a critical role in the for the tenth or twelfth grade." Whatever stan- entire mission of the public schools, and reaf- dard for "adequacy" is eventually established, it firmed that students' learning of such basic educa- certainly is not met by children who are reading at tionisessential to the economic and political the sixth grade level in the ninth grade.38 existence of our country.39 14th Amendment Denial to Persons of "Equal 14th Amendment, "Deprivation of Liberty Without Protection of the Laws" Due Process of Law" By effectively teaching certain educable stu- Massachusetts,31 andvirtuallyallother dents basic skills, while at the same time not states,32 have laws which compel all children effectively teaching others, public school systems under a certain age (frequently 18) to attend prima facie discriminate against the class of chil- schools involuntarily. An overriding reason for dren allowed to fail, thereby denying them the requiring such attendance is so that children will "equal protection of the laws." adequately learn basic skills. At a minimum, defendants have the burden Children are "deprived" of their "liberty" of showing that this discrimination is "rationally by being compelled to attend School. For children related to a legitimate state interest."39 Beyond who do not in fact adequately learn basic skills, that, insofar as plaintiffs can show that dispropor- the compulsory attendance laws tend to become tionately large numbers of the children allowed to "irrational" and deprive them of liberty without fail are racial minorities" and/or poor in absolute due process of law in violation of the Fourteenth terms,'" defendants should be required to show Amendment. As the court said in an analogous that this discrimination is not mcrely "rationally case (involving the involuntary commitmentof related to a legitimate interest" but that itis persons to a mental hospital for treatment): "necessary" to achieve a "compelling state inter- To deprive any citizen of his or her est". liberty upon the altruistic theory that Defendants might seek to justify the discrim- the confinement is for humane thera- ination by asserting that they need additional peutic reasons and then fail to provide funds to provide adequate education to plaintiffs' adequate treatment violates the very class and that they have a "legitimate interest" in fundamentals of due process.33 not wishing to raise or spend suchadditional Although the courts have not yet deter- funds. The government's interest in saving funds is

18 /INEQUALITY IN EDUCATION nut, however, a "legitimate governmental interest" fired in the public schools to meet the needs of sufficient to sustain an otherwise invidious dis pupils for which the course of studyis crimination such as we have here.42 Moreover, ;bed".47 further investigation may well confirm that effec- $n New Jersey,state law requireslocal tive education of failing children will not require schooldistrictsto provide a"thorough and additional expenditures but rather a restructuring efficient" education."InMassachusetts,state of existing teaching." statutes require local communities to "provide an Second, defendants might allege that they amount of money sufficient for the support of the have a legitimate administrative interest in main- public schools,"" to "provide and maintain a taining the existing teaching structure to avoid sufficient number of schoolhouses, properly fur- substantial administrative burden. The Supreme nished," to "provide fuel and all other things Court has recognized, however, that the interest in necessary for the comfort of the pupils,"50 to avoiding administrative inconvenience is not suffi- maintain high schools "adequately equipped," and cient to justify discrimination.44 to have high school principals and teachers of Third, defendants might avow that they have "competent ability."51 Further, the statutes pro- a legitimateinterestin preserving the existing vide that school committees shall approve of teaching structure because at least its educational private schools only "when satisfied that such consequences are known, whereas new approaches instruction equals in thoroughness and efficiency, might in fact produce worse educational results. and in the progress made therein, that in the

The greatertheprobabilityof success from public schools in the same town.. . ."52 changes to new approaches plaintiffscan show Given the purposes of education as articu- (e.g., success of other schools with comparable lated by the Supreme Court,53 the vital role of student populations), the less persuasive becomes learning basic skills in achieving those purposes, defendants' assertion that they should not be and the 'legislatures' concerns for "thorough and required to attempt change. efficient," "sufficient," or "adequate" education Even ifplaintiffs are only able to show a or for meeting the "needs" of pupils,it seems small probability of improvement, at a minimum most reasonable to construe these statutes to the court should require defendants to experiment require, at a minimum, that all educable children on a small. scale with alternative approaches. Based adequately learn basic skills.54 on the results of different experiments, the court could then require system-wide implementation of Negligence whatever approaches were found to be effective.45 At common law,negligence consists of State Statutes and Constitutions failing to exercise reasonable care toward a person for whom one has a duty of care." Under state State statutory and constitutional provisions laws, constitutions56 and the due process clause of with respectto state and municipal duties to the Fourteenth Amendment,57 school districts provide public education may vary greatly and have a duty to educate their students in basic must be investigated individually by state. Itis skills. In the situation in which a group of children likely, however, that most states have provisions is educable and comparable children demonstrably which construe the purposes of public education have been effectively educated by other school to include assurance that all educable children systems, the failure to educate such children is adequately learn basic skills. ipso facto the failure to exercise "reasonable care" In Doe v. San Francisco Unified School and constitutes "negligence."58 District," for example, plaintiff alleges in his complaint that the "Constitution and Laws of the QuasiContract State of California" impose the duty on the local school district to instruct students in th,, basic At common law, a "quasi-contractual oblige- skills of reading and writing. Further, plaintiff tion is one that is created by the law for reasons of alleges that California statutes require to c school justice, without any expression of assent and district to "design the course of instruction of- sometimes even against a clear expression of

19 19 dissent." The doctrine of quasicontract was cre- ofColumbia,348F.Supp.886(D.D.C.1972); ated because "no other suitable and really descrip- PennsylvaniaAssociationof RetardedChildren 19, Pennsylvania, 334 F. Supp. 1257 (E.D.Pa., 1971), 343 F. tive classification was available, and it was desired Supp. 279 (1972). to make use of the remedial forms of action by 5. E.g.,Glaserv.Marietta, 351F, Supp. 555 which contracts were enforced. "59 "Official or I U.S.D.C.W.D.Pa.,1972); Ware v. Estes, 328 F. Supp. 657 customary" duties are quasicantractua160 and (N.D. Tex., 1971), aff'd per curiam, 458 F. 2d 1260 (5th may therefore be enforced by a court order for Cir. 1972); Murphy v. Kerrigan, Civ. Act. No. 69-1 1 740 specific performance, i.e., an order compelling the (U.S.D.C.D. Mass.) (final decree entered June 2, 1970 party to discharge his quasicontractual obligation. enjoining corporal punishment in the Boston public In virtually all the states, citizentaxpayers schools). 6. The first known case to raise issues in this area is are required to pay a substantial part of their taxes Doe v. San Franc%sco Unified School District, Civ. Act. No. for the support of the, public schools.61In 653.312 (Sup. Ct., San Francisco City, complaint filed exchange fortheir taxes, taxpayers reasonably Nov. 20, 1972). expect the schools to adequately educate their 7* The article is exploratory, not definitive; its goal children. is to express an analytical framework, not to provide the Through official practice and custom school extensive legal and social science research which will be districts have historically assumed the duty to necessaryto support the analysis. The author well recognizes the need for such research, and with other ensure that children learn basic skills. Even assum- colleagues,iscurrently seeking foundation funds to ing, arguendo, that they have not assumed such complete it. duty, "reasons of justice" and equity require that 8.Brown v. Board of Education, 347 U.S. 483.493 school districts be deemed to have assumed such (195x4). duty in exchange for citizens' payment of taxes. 9. Wisconsin v.Yoder, 92 S. Ct. 1526, 1531.2, 1536-39 (1972). Conclusion 10. See unpublished working paper by Gershon M. Ratner, David Bookhout and Kristen Apgar, October 18, If lawyers can establish a case along the lines 1972, on file with the Harvard Center for Law and suggested in this article, including the six main Education. pp. 3-4, n. 19.22, hereafter cited as Working Paper. points of proof and a demonstration that school 11. Working Paper, p. 5, n. 23. systems have a legal duty to ensure adequate learning of basic skills, plaintiffs will have a very 12. Id., pp. 6-8. powerful case. 13. See Schafer and Polk, Delinquency and the Schools, pp.229-30, 235 (1967), part of The President's Nationwide attention should increasingly be Commission on Law Enforcement and Administration of focused on the failure of schools to ensure that all Justice, Task Force Report: Juvenile Delinquency and of their students adequately learn the basic skills Youth Crime; U.S. Government Printing Office, Wash ing- of reading, writing and arithmetic. In-depth legal _ton, D.C., 1967. andsocialscienceresearchwithrespectto 14. See p. 15, supra. remedies for this situation should be undertaken as 15. Working Paper, pp. 9.11. a priority. 16. SeeNational Commission onTechnology. Automation and Economic Progress, Technology and the Footnotes American Economy,Vol. 1.Washington, D.C., U.S. Government Printing Office, 1966: United States Depart- ment ofLabor, Manpower Report of the President, E.g., Keyes v. Denver School District No. 1, 41 Washington, D.C.,U.S. GovernmentPrinting Office, 1973); Swann v.Charlotte- L.W.5002(U.S.S.Ct.. 1965; Ronald G. Corwin, A Sociology of Education, New Mecklenburg Board of Education, 402 U.S. 1(19711; York, AppletonCentury Crofts, 1965, p. 124; Grant Brown v. Board of Education, 347 U.S. 483 (1954). Venn, Man, Education, and Work, Washington, D.C., 2. E.g San Antonio Independent School District v. AmericanCouncil on Education, 1964; Seymour L. Rodriguez, 41 L.W. 4407 I U.S.S.Ct., 1973); Serrano v. Wolfbein, "Education and Employment," in Eli Ginzberg, Priest, 96 Cal. Rptr. 601, 487 P.2d, 1241 (1971) The Nation's Children, New York, Columbia University 3. E.g, Davis v. Robinson, 41 L.W. 2090 Press, 1960. (U.S.D.C.R.Is., 19721; Briggs v. Kerrigan, 307 F. Supp, 17.See, Schafer and Polk, n. 13, supra at p. 223, 295 ID. Mass.. 1969). aff'd 431 F.2d 967 (1970). 230.31 and articics cited; "Delinquency and the Schools," E.g, Mills v. Board of Education of the District Office of Education, HEW, appearing inTask Force

AI/INEQUALITY IN EDUCATION Report, n. 13, supra at p. 278 et seq, in,students' subcultures; substantial time devoted to 18. This article focusesthroughout anly on that teaching basic skills; close monitoring of students' learn class, consisting of the vast majority .)f children, who have ing progress; availability of individualized instruction; the intellectual ability to learn basic skills and would be private, rehabilitative discipline rather than public punish regarded by experts as "educable." Future references to ment; and relaxed, supportive classroom atmosphere. See, "all children" refer only to this class. generally, George Weber, Inner-City Children Can Be Taught to Read: Four Successful Schools, Council for 16', See,generally,Sugarman,"Accountability Basic Education, (Washington, D.C.,1971); Working Through the Courts," School Review, vol. 82,no. 2, Feb. 1974, p. 233 et seq. University of Chicago. Paper, pp. 17.26, and books cited. There is no reason to 20. think that implementation of these approaches requires Filing a major lawsuit can be very important any greater pupil expenditures than existing expenditures. even ifit does not eventually win in court because its 28. a. Serna, Prosecution, with accompanying publicity, sometimes has n. 20, supra at 1282. the salutary effe-lt of inducing legislative or administrative 29. The overall goal would beto institute teaching improves.ents in the practices challenged, approaches and classroom conditions which would be 21.See, Serna v. Porrales Municipal Schools, 351 most likely to produce effective teaching of basic skills. F Supp 1219 (D.N.M. 1972). Teachers andprincipals should be hired, promoted, disciplined and fired in large part based on their success in 22. See, Keyes v. School District No. 7, Denver, teaching, or enabling others to teach, basic skills and their Colorado. 445 F.2d 990, 1004 (10th Cir. 1971), modified ability to develop the kinds of teaching approaches and on other grounds, 41 L.W. 5002 (U.S,C.Ct., 1973), and conditions which are most likely to succeed. Intensive Serna, n. 20, supra. inservice training and psychological support should be 23. See. n. 26, infra. made availableto existing teachers and principals to 24. Ct. Soma,n.20, supra. The factual burden enable them to change their approaches. Curriculum necessarytosupport monetary damages or remedial should be changed to relate closely to children's experi- education relief does not seem to be as great as that ences and background. And students' parents and com- potentially necessary to warrant a change in the system. munity representatives should be encouraged to partici Plaintiffsseeking damages orremedialreliefwould pate actively in the teaching process, both at school and probably have to establish the first two points. Such at home, in paid and non-paid capacities. In addition, plaintiffs would have greater leeway as to the third point, further investigation may well suggest other appropriate however, because they might prove comparable students changes. See, generally, Working Paper, pp. 27--37. 30. were taught basic skills effectively either through regular See, n. 9, supra; accord, n. 8, supra; see Davis v. instruction, remedial programs, or otherwise. Such plain- Ann Arbor Public Schools, 313 F. Supp, 1217, 1225 tiffs would not have to prove the fourth or fifth points at 1E.13. Mich., S.D. 19701. all, since they would not be seeking a change in the 31. M.G.L.A.c. 76, Secs. 1, 2. regular system. Finally, as to the sixth point, plaintiffs seeking damages would simply have to prove the esti- 32. See,Wisconsinv. Yoder,n.9,supra at mated dollar damages; plaintiffs seeking remedial course 1538 -.40, and n. 15. relief, at most, might have to identify suchan existing 33. Wyattv.Stickney, 325 F. Supp. 781, 785 course. Neither of these efforts would be likely to be (M.D. Ala. N.D. 1971). Defendants might argue that they nearly as involved as recommending how a large part ofan provide adequate education but that the children do not entire school system should_ be restructured.. learn because of their own inadequacies. Plaintiffs would 25. See.Serna.n.20,supra at1281. For a have to rebut this by showing that the childrenare discussion of what standard should be used to determine educable and that other schools are effective in teaching "adequacy" see p. 18, infra. comparable children. Plaintiffs would then argue that the schools have the responsibility to take the children 26 Unlike the remedy as of damages or remedial they find them and do whatever is necessary for the education, either of which may appropriately be given to children to learn. To accept the defendants' argument a single student, the remedy of changing the system seems thatthe schools should not be required to rectify appropriate only if there is a substantial class of children childr ens'educationaldeficiencieswould make the adversely affected by the current system. schools essentiallyuseless and make compulsory at- 27. Cf. Serna,n. 20, supra at 1282. Although it is tendance for such children irrational. by no means certain what teaching characteristics goner. 34' Wisconsinv. Yoder, 92 S. Ct. at 1536 and n. 8 ally are effective forteaching basic skills, based on and 29, supra. preliminary investigation and common sense, the follow ingfactors areprobablyimportant! high perceived 35. See, Id.at 1536. teacher expectation for student performance; extensive 36. See, generally, Alvin loftier, FutureShock, use of discussion and studentexpressive methodologies, (Bantam Books, New York, 19711; n. 16, supra. ratherthan exclusiverelianceontraditionalrote. 37 See, Wisconsinv.Yoder, 92 S. Ct. at 1536; recitation method, curriculum familiar to students' ex Robinson v. Cahill Civ. Act. No. A 58 (Supreme Court of periences, teachers knowledgeable about, and interested New Jersey, September Term 1972) Slip Opinionpp. 4 "dim 21 42 3. 1973, p. 16. 48. 38* See, p. 16, supra. See, Robinson v. Cahill, n. 36, supra at pp. 24, 38. E.g., Weber v. Aetna Casualty and Surety Co., 34, n. 9, 36, 40, 42.61. 406 U.S. 164. 172 (1972). 48 M.G.L.A. c. 71 234. 40. E. Graham v.Richardson, 403 U.S. 365, 58 M.G.L.A. c. 71 §68. 371-77 (1971). 51* M.G.L.A. c. 71 §4. 41. See, San Antonio Independent School District, 62. M.G.L.A. c. 76 §1. n. 2, supra at 4412 15. 58* See, pp. 15, 18, supra. 42.Seem. 26, supra. 54* As the New Jersey Supreme Court saidin Thompson, 394 U.S. 618, 633 43. Shapirov. Robinson v.Cahill, n. 36, supra at 42--43: "Today, a (1969). system of public education which did not offerhigh 44. Reed v.Reed, 404 U.S. 71, 76 (1971); cf. school education would hardly be thorough and efficient. Stanley v.Illinois,405 U.S. 645, 656-59 (1972); The Constitution's guarantee must be understood to Goldberg v. Kelly, 397 U.S. 254 (1969). embrace that educational opportunity which is needed in 45.Insofar as defendants used the same teaching the contemporary setting to equip a child for his role aS a approaches in all schools, but children in certain schools citizen and as a competitor in the labor market." learned, white children in others did not, the use of the 55* See,Prosser, Law of Torts, 3rd. Ed. West same approaches is an "overinclusiveclassification" in Publishing Co., St. Paul, Minn. 1964, p. 146. "equal protection"; i.e.,treating persons violation of 56.See, p. 19,supra. differently situated in terms of their educational needs 57. the same way denies equal protection equally as much as See, p. 18, supra. treating persons similarly situated differently. InSerna v. 58* Numerous specific kinds of claims for negli- Portales Municipal Schools, 351 F. Supp. 1279 (D.N.M. gence might be made, including, for example, failure to be 1972), the court adopted exactly this kind of analysis and aware of students' inadequate learning, failure tonotify ordered the school district to provide specialized pro the parents of students' academic failure, repeated assign- grams for Spanish-speaking children. (But see, Lau v. ment of books which the child could not read becauseof Nichols, 483 F. 2d 791 (9th. Cir. 1973( , rev'd. on other hislearningdeficiencies, assignment of teachers un- grounds, 42 L.W. 4165 (U.S.S. Ct.1974).) And the qualifiedtoteachthe student,etc.See,generally, Supreme Court has likewise recognized that certain complaint in Doe v. San Francisco School District, n. 6, overinclusive classifications are illegal. See, In re: Appli- supra. Senior school officials, includingsuperintendents, cation of Fre le Poole Griffiths for Admission to the Bar, principals and school committee members may be directly 41 L.W. 5143, 5145 (U.S.S. Ct. 1973); Sugarman v. Mc L. liable for negligence in training and supervising their Dougall,41L.W. 5138, 5142-3, (U.S.S. Ct. 1973); teachers. See Carter v. Carlson, 447 F. 2d 358 (D.C. Cir. Cleveland Board of Education v. La Fleur, 42 L.W. 4186, 1971);Thomasv.Johnson,295F.Supp.1025 4192 (U.S.S. Ct. 1974) (Powell, J., concurring). As the (US.D.C.D.C. 1968). Court said in Jennessv.Fortson, 403 U. 431, 442 59' See,generally, Sugarman, note19, supra. (1971) :"Sometimes the grossest discrimination can lie in Corbin on Contracts, 1 vol. ed. 1952, pp, 28-9. treating things that are different as though they were 60 In re: Shawsheen Dairy, 47 F. Supp. 494, 497 exactly alike. . ." See, generally, Tussman and Tenbroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (0, Mass. 1942). 61. 119491. .See, San Antonio Independent School District, n. 2, supra at 4421 and n. 102. 46. See, n. 6, supra. 47Id., Amended Complaint, filed October 31,

22 /INEQUALITY IN EDUCATION TITLE I: More of the Same?

by R. Stephen Browning and Jack Costello, Jr.

In1965, after more than a century of that Title I funds are used to provide the services deliberation and constant prodding by education for which they are intended. groups, Congress enacted a landmark bill designed Because of the current uncertainty as to toprovidesubstantial federal fundingfor boththeprecise formthat renewedTitle I America's public schools. The name of the legisla- legislation will take and the exact funding levels tion was the Elementary and Secondary Education that will be available, it is an appropriate time to Act, commonly known as "ESEA."1 Title I, the assess the effectiveness of the program thus far. most beneficently funded title of ESEA withan Indeed,at a time when the productivity and initial appropriationinexcess of one billion effectiveness of educationis being debated so dollars, was designed to provide funds "to expand hotly among social scientists,5 it is essential that and improve" the educational programs offered to policy makers attempt to examine the effective- "educationally deprived children."2 The goal of ness of an education program which has allocated TitleI is to break or at least retard America's more than $10 billion in the past eight years. Such "cycle of poverty" by providing extra or "com. an evaluation, however, is difficult. pensatory" educational services to children who Although federal law has always required reside in areas with high concentrations of low evaluation of TitleIprojects, the quality of the income families and who are behind in school. resulting reports has frequently been called into ESEA is slated for expiration on June 30, question.6 Additionally, it is difficult toassess the 1974 and is now being considered for renewal by effectiveness of the programs because thereis Congress.Barring unforeseen circumstances,it mounting evidence that many projects funded by appears that ESEA will be renewed and that the Title Idid not provide compensatory education essential elements of the TitleIportions of the either because resources allocated to the educa- current law will be retained.3 The funding level for tionally disadvantaged were not supplementary or, Title Iin its renewed form will be increased from ifthey were supplementary, the youngsters to the current $1.5 billiontomore than $1.8 whom they were provided were not educationally billion.4 disadvantaged.7 Currently, Congress is considering what form This article, divided into three parts, will the new Title Ilegislation will take. The Adminis examine the federal, state and local administration tration was pushing hard for a more streamlined of TitleIover the past eight years. PartIwill version ofTitleI:fewer restrictions on the describe generally the numerous rules and require. program and greater, if not unlimited, latitude for ments established for TitleI and the government state and local education decision-makers. These structures and enforcement mechanisms. In an efforts to relax the requirements of Title I fund effort to provide a clearer picture of the mechanics dissemination were bitterly opposed by key legisla. and politics of TitleI administration, Part II will tors who want to retain the restrictions to insure focus on the single requirement of "compara- bility," the restriction against unequal funding of R. Stephen Browning is a Staff Attorney at schools before the addition of Title I funds. Part the Lawyers' Committee for Civil Rights Under I offers some concluding thoughts as to how the Law, Washington, D.C. Jack Costello, Jr.is a administration of the Title I program can be Research Associate, School Finance Project at the improved, assuming it is renewed for the 1974-75 Lawyers' Committee. and following school years.

Z3 23 PART I concentration of children' from low TITLE I: A GENERAL SURVEY income families," and "of sufficient size, scope and quality to give reason The Structure and Operation of Title I able promise of substantial progress To understand the structural framework of toward meeting those needs. ..." Title Iadministration, one must be familiar with both the legal and political relationships among Provisions must be made for evaluating the three levels of government responsible for the effectiveness of the program and

overseeing Title I projects: the U.S. Office of meeting the special educational needs Education(U.S.O.E.), state educationagencies of the eligible children. (SEA's) and local education agencies (LEA's). The legal relationships are spelled out in the Title I The localeducational agency must legislation and related regulations and program make periodic reports and keep rec- directives. ords which will enable the state educa- tional agency to verify the reports and Legal Relationships to fillits obligations to the Commis sioner of Education.

Title I funds are distributed to the states according to a rather complicated formula.8 The LEA's must make provision for provid- funds appropriated by Congress for Title Ihave ing educationally deprived children in never equalled the total authorization. In 1966, privateschools,includingparochial $959 million of the $1,093 million authorized was schools, with "special educational ser- appropriated, leaving a shortfall of $134 million. vices and arrangements." However, the By 1970 the shortfall had increased to S1 billion, control of funds for private schools with S2,3 billionauthorized and $1.3 billion and the title to all property purchased appropriated.9 Under the TitleIlegislation, each with funds must be in a public agency. state's entitlement equals its maximum allocation multiplied by the proportion that the national In the case of application for funds for appropriation bears to the national authorization. planning, the planning must be direct To obtain its TitleIallocation, each SEA ly related to the Title I programs and must apply to U.S.O.E. and make assurances that the funds must be needed because of itwill only approve funding for local programs the "innovative nature of the pro- that comply with the Title I legislationand gram" or "because the local education regulations.1° Similarly, LEA's (i.e., local school agency lacks resources necessary to districts) who wish to participate in the program plan adequately."13 must apply to the SEA for Title I allocations. The The amount of money for each state and SEA will approve the LEA's applications, provided each district is determined by Congress while the that the proposed programs meet the Act's re determination of program content and character is quirements.1 1 Deft to the states and localities. In preparing Title I While the SEA authorities have the respon applications, LEA's are permitted to identify the sibility for approving and disapproving local ap- eligible educationally disadvantaged youngsters in plications, they must make their determination on their districts, to assess the needs of those children the basis of standards established :n the TitleI and to design educational programs to meet those legislation as well as the basic criteria established needs. The SEA has the authority to approve those by the Commissionerof theU.S. Off' ;eof applications consistent with the rules and regula- Education.12 Among the criteria established by tions established by the U.S. Office of Education the Commissioner thus far are: and any additional rules and regulations which the The projects must be "designed to state may wish to impose. SEA's also have the meet the special educational needs of responsibility to monitor the operation of local educationally deprived children in the Title I programs and to report periodically to the school attendance areas having high U.S. Office of Education on the effectiveness of

24/INEQUALITY IN EDUCATION these local programs and their compliance with Although the original drafters of Title I may federal law. have seen the purpose of the law as providing Contrasted against the broad authority and educational resources for educationally deprived responsibility placed on local and state education children, traditional educational lobbyists viewed agencies, the federal role in administering Title Iis th3 passage of Title I as an opening in the dike rather small. It approves state applications sub- surrounding the U.S. Treasury. Accordingly, at the mitted by state departments of education and outset of the program, great emphasis was placed monitors the enforcement efforts by states in on getting the TitleI funds flowing immediately gaining compliance with applicable Title I laws. into the local school districts." The principal counterweight to this almostcom- The powerfullobby groups representing plete federal delegation of programmatic responsi. educationaladministrators who supported the bility is the right of the Commissioner to establish enactment of ESEA agreed upon the "child "basic criteria" to guide administration of Title I benefit" theory for pragmatic reasons. It overcame at the state and local leve1.1 4 the resistence of those who wanted federal aid to One commentator summarized the legal rela- private school children and it provided the oppor- tionships among the various branches of govern- tunity to gain additional funds for hard pressed ment responsible for Title I administration in the school districts throughout the United States.18 following way: Although strings were to be attached to these The U.S. Office of Education bypasses funds, the belief shared by these administrators the state department of education in was that the strings would not be pulled.

determining the allocation of grants To understand the expectation that Title I and establishes basic criteria which funds could be used so broadly, one must know must be met by local districts, but it more about the people who have been called upon has no operating control over the to administer the program. First, federal U.S.O.E. projects. The states have the responsi- officials have traditionally taken passive roles with bility for approving projects but they respecttothestates. As one U.S.O.E. staff must apply federal criteria in carrying member explains: out this responsibility. Local districts TitleIis a service oriented program have access to earmarked funds and withpredeterminedamountsof latitude in designing projects, circum- money forthe states. This sets a scribed only by the effects of state framework where the states are en- supervision and state criteria) 5 titled to the money. Other than mak- ing sure states got their money and Political Relationships making sure it [isj spent, [there is] no

role for the Office of Education. I Despite the legal delineation of the rights don't know anyone around here who and responsibilities of the various levels of govern- wants to monitor. The Office of Edu- ment charged with the administration of the Title cationis not investigation oriented; I program, the actual behavior of educational never has been, never will he.18 administrators at the local, state and federal levels Many federal education officials feel that if is governed by an entirely different set of political U.S.O.E. pushes too hard to enforce the require- rules. As one writer put it: ments of Title I, Congress will replace categorical Until the ESEA, federal education acts programs of this sort with general aid programs, had never challenged the authority and leaving U.S.O.E. with even less influence than it responsibility of the states for public now has. Still others may think that the most education.Statelegalcontrol over important thing about the program is to get the public education coupled with unre- money to the school district and not to waste time stricted local authority over the opera- establishing and administering a complex set of tion of the schools had endured for rulesdesigned to ensure the money is used over a century at the centerpiece of properly. education's political mythology.1 6 Perhaps the best explanation of the actions

25 lawful distribu- of officials charged with the administrationof control and auditing to insure Title f programs can be found in Morton Grod/ins' tion.26 Finally, upon finuing that a state has failed observation that they do not have an elective to comply with theapplicable rules and regula- empowered to political base: tions governing Title I, U.S.O.E. is The undisciplined political party sys- notify the SEA that further paymentswill not be tem impels administrators toseek poi- made until it is satisfied that there "is nolonger itical support for their programs. The any such failure tocomply.,,26 parties do not supply this support, and Despite the authority and the legalresponsi- administrators and their pi ograms can- bility to enforce the law, theadministration of not survive without it... . This situa- TitleI throughout the past eight yearshas been tion makes the administrator play a repletewithincidentsof non-compliance and political role.2° nonenforcement. In 1969, after reviewingseveral According to Grodzins' theory,it appears that dozen Title i audits conducted by theHEW Audit Washing- federaleducationofficialsview themselves as Agency during 1965 through 1968, the having a weak bargaining position and therefore tonResearchProject and the NAACP Legal made the piece demands upon state and local Defense and Educational Fund, Inc. schooldistricts. The fundamental flaw in this following five findings: reasoning is that their enforcement power does not Theintended beneficiariesof Title necessarily rest upon political action. When federal I poor childrenare being denied the laws are violated, other remedies besides political benefits of the act because ofim- Title I funds. action can be called upon. proper and illegal use of SEA officials, like U.S.O.E. officials, have also exhibited pronounced reluctance to enforce Many Title I programs are poorly the legal mandates of Title I. Their poor enforce- planned and executed so that the chil- ment record can be attributed to severalfactors: needs of educationally deprived lark of a political base; small staffs in relation to dren are not met. In some instances the amounts of money they are called upon to there are no Title I programs to meet administer; and little orientation toward compli- the needs of these children, ance activities.21 State departments of education which A Review of Compliance and Enforcement Efforts have major responsibility for operating TitleI by Education Agencies the program and approving The Title I laws briefly described above form project applications, have not lived up the basis for a potentially effective enforcement to their legal responsibility toadminis- program by federal and state educationofficials. ter the program in conformitywith These laws require LEA officials to provide assur- the law and the intent of Congress, ances to the states that they will complywith the rules and regulations governing TitleIexpendi- The United States Office of Educa- tures.Similarly, SEA's are required to provide tion, which has overall responsibility written assurances to HEW that they will distri for administering the Act, is reluctant and timid in its administration of Title bute TitleI funds only to school districts who I and abdicates to the states its respon- comply with TitleI laws,22If LEA's submit applications which on their face indicate a pro- sibility for enforcing the law, posed illegal use of Title I funds, SEA's are legally obligated to withhold funding.23 Similarly,if a Poor people and representativesof state education agency discovers that aLEA is community organizations are excluded using TitleI funds illegally under the applicable from the planning and design of Title I federal laws, it is obligated to terminate funding programs. In many poor communities, untilthe project is brought intocompliance.24 the parents of Title I eligible children State education agencies and the U.S. Office of know nothing about Title I. In some Education are both obligated to provide fiscal communities school officials refuse to

4-% 26 /INEQUALITY IN EDUCATION ,) provide information about the Title I violations of federal law. This withholding action program to local residents.27 was quickly rescinded when pressure was brought Fvur years after these findingswere made, to bear on U.S.O.E. by the Mayor of Chicago theystillring true. Certainly there have been through the White House. Some say that this improvements in local school districts' effortsto particular incident led to the rapid departure of design and operate lawful and effective TitleI Commissioner Keppel from U.S.O.E.30 projects. There is also evidence to suggest that The Chicago incident is but one episode in an enforcement activities by the states and the federal eightyearsaga of state and local education government have improved. Nevertheless, the sit. officials' resistance to the applicability of Title I uation is still wholly inadequate. Dozens ofnew laws. The State of Mississippi has providedmany HEW Audit Reports filed since the publication of such incidents which illustrate the total disregard the Washington Research Project report condemn its state and local education officials have for Title many unlawful uses of TitleIfunds. Although I regulations.In 1969 an investigation of the these violations may be more subtle than theones Mississippi Title I program revealed that for more recounted in the HEW audits of the mid-1060's, than four years U.S.O.E. had erroneously relied they stillrepresent frustrations of the Congres- upon the assurances of the Mississippi State sional mandate for Title I and undermine the Education Agency that the Title I funds had been potential for assessing whether federally funded lawfully used inits local school districts. HEW compensatory education represents a sound na Audit Agency reports confirmed that millions of tional policy. Mississippi's Title I dollars were spent without regard to and in conflict with Title I requirements. U.S.O.E'.s Monitoring Capacity In December 1968 federal education funds Although U.S.O.E.'s Division of Compensa were terminated by the HEW Office of Civil Rights toryEducation(D.C.E.)(the department re in Cahoma County, Mississippi because the school sponsible for administering Title I) has substan- board had refused to submit an acceptable deseg- tiallyincreaseditsstaff since the Washington regation plan under Title VI of the Civil Rights Research Project report, it still lacks sufficiently Act of 1964. Subsequently, additional investiga- comprehensive monitoring capacity to insure the tions by U.S.O.E. field studies and HEW audits proper use of Title I funds. D.C.E. officials spend revealedthat the unlawful elements found in the majority of their time serving the needs of Cahoma County's Title I program were replicated state educational officials.28 Comparatively little in practically all of Mississippi's local districts.31 time is devoted to independent monitoring of SEA Finally, in July 1969, the Mississippi education compliance activities. Moreover, despite the fact officials acknowledged their deficiencies in ap- that D.C.E. may have improved its monitoring plying federal Title I criteria and agreed to federal capability, there has been no concomitant increase enforcement action to correct such abuses as the in the incidence of U.S.O.E. withholdings of Title gross lack of comparability in the _allocation_ of I funds.28 local funds.32 Many of the violations found in Mississippi The Political Problem were historically related to local official treatment of black schools. In the mid-1960's, despite the The problem, it seems, is not one of compe- Supreme Court's mandate in Brown, black schools tence, but of political inhibitions, because top typically remained segregated and received sub- HEW officials continue to exhibit reluctance to stantially less state and local education monies enforce the law for fear of alienating state and than did white schools. The sudden availability of local education officials. To understand this re- TitleIfunds, beginning in the fall of 1965, luctance, one has to know about the isolated presented two somewhat inconsistent temptations efforts in the past by U.S.O.E. officials to enforce to Mississippi's white local school officials. First, it the law. In 1966, the then U.S. Commissioner of prompted them to stretch the rules on selection of Education Francis Keppel attempted to withhold eligible schools (the legal criteria for such selection from the Chicago public school system more than is the relative poverty of the school attendance $30 million in Title I aid because of certain alleged areas, and in the South, black school areas were

27 typically poorer than the white school attendance potential to exercise the leadership, control and areas) to include as many white schools as pos- enforcement that would permit them to raise the sible. A second temptation was to use the Title I quality of education in their states. For example, funds as an equalizer to bring the level of spending one prominent section of ESEA, Title V, provided in the black schools closer to those in the white substantial funding at the state level to improve schools. For example, in 1965 in the delta town of the capabilities of state departments of education. Angina, Mississippi, there were two elementary Yet the substantial weaknesses in many depart- schoolsone white, the other black. The white ments,coupledwiththeirhistoryofnon- school had an average expenditure of $366 per enforcement of state laws, resulted in minimal pupil, while the black school received only $86 per enforcement activity. As the former director of pupil. Even though the black school was the thedivisionofCompensatory Educationex- county's sole recipient of Title I funds, these funds plained: did not provide extra services for the children; The state agencies and the local dis- they probably even failed to close the gap between tricts, by and large, were used to going the black and the white school 33 their own ways, which often meant Title I funding was temporarily withheld disregarding federal requirements. In from Mississippi for the 1969-1970 school year the case of ESEA Title I, practically untilstate education officials assured U.S.O.E. total reliance was placed on the in- that changes would be made in the state depart. tegrity and capability of the states to ment's practices for reviewing Title I applications. live up to their "assurances" to the This represented the first strong posture struck by Commissioner. And if U.S.O.E. had a U.S.O.E.to enforce its own rules with non- weak enforcement reputation, that of compliant SEA's. As the head of the Division of the states was even weaker.35 Compensatory Education at that time put it: Meetings between federal and state educa- U.S.O.E.'s experience with Mississippi tion officials throughout the 1960's were exercises was to lead to larger events. For the in futility for U.S.O.E. In these meetings federal firsttime intherecollectionof officials described what new rules and regulations U.S.O.E. staff, the Office had taken were to govern the expenditure of TitleI funds strict "withholding" measures to en- whilestateofficials madeitclear that they force its own policies. ...Previous ef- believed the federal government lacked authority forts to achieve compliance either had to establish rules to govern how these funds should taken the peaceful route of negotiation be used. The state education officials argued, to greater adherence or had secured the invariably, that decisions concerning the ultimate promise to do so from erring states use of TitleI funds were in the province of local found in violation of rules... .34 education officials, consistent with whatever con- Since this initial hard line was taken, Title I trols the state might decide to employ.36 funds have continued to flow into Mississippi Significantly,notall SEA officials were without interruption. And, although there have resistanttofederalrules. There was a small been continuing citations by the HEW Audit minority of chief state school officers and state Agency for misspent TitleIfunds in Mississippi, TitleIofficers from such states as California, noadditionalsanctions have been employed Connecticut and Massachusetts who not only against the state. approved many of the rules established by Title I officials but enacted more stringent rules of their State Enforcement Efforts own.37 This trend has continued and accelerated Prior to the advent of Title I in 1965, state in the past several years. departments of education wielded little influence In the 1970's increased pressures from a inadministrative power over public education. variety of sources have been brought upon state With substantial infusion of federal funds and the departments of education to impr:ve he admin- legal authority to administer the program as the istration of public education. Because of their principle for insuring local compliance with federal desire to see greater results for local and state law, the state departments had vastly increased taxes used to support public schools, state legisla-

ZS/INEQUALITY IN EDUCATION tors, with the support of activist citizen groups, The vast majority of the Title I suitsare settled, have enacted a wide variety of accountability usually when the local school district agrees to legislation. These legislations typically require only correctthe program deficiencies citedin the that a statewide testing or assessment system be complaint. To date, all Title I suits have been filed established. However, in some states the depart. almost exclusivelyin federal court and can be ments of education have been invested with the divided roughly into three categories: right to power to adjust local education practices whenever information suits, access to decision-making suits local scores on statewide assessments fall below and suits seeking to correct unlawful uses of Title I certain minimum levels.Inthis move toward funds. statewide assessment systems, state departments are gaining increasing authority over the operation Right to Information &Ai of local schools.

Another force working to enhance theau- The typicalright toinformation suitis thority of state education agencies hascome from brought by parents who have been rebuffed by law suits filed by children challenging the failure local school officials in their requests for Title of state departments of education to provide applications or other documents pertaining to the adequate resources, services or leadership to local "planning and operation" of the local school schools. The landmark suit in this area is Robinson district'sTitle I program.Under the TitleI v. Cahill,38 decided by the New Jersey Supreme regulations, local school districts are required to Court in spring 1973. The Robinson decisionheld make these documents available to the public39 that the State of New Jersey failed tocarry out its and to distribute them free to the members of the constitutional mandate to provide a "thorough" parent advisory council.40 Dozens of audit reports and "efficient" education to all of the children in confirm that school districts have failed to make the state, and that the state failed to establishany these documents available despite repeatedre- minimal operational standards for thequantum of quests by parents and other interested groups. education offered to students. The New Jersey Since the law is so clear on this point, suits filedto State Department of Education isnow completely obtain information are invariably settled by local revising its Code of Regulations inan effort to districts agreeing to provide the requested informa- spell out more clearly what will be expected of tion. local schools. A related set of suits deals with the identifi- Thus it appears that the "carrot" ofnew cation of parents of Title I eligible children. Inone federalismineducation, initiatedinthe mid- New Mexico school district, local parent advisory 1960's with the passage of ESEA, and the "stick" council members were denied alist of TitleI of law suits and community action have pulled and eligibleparents. They broughtsuitinfederal pushed to substantially boost the level of admin. district court alleging that the list of parents was istrative capability of state departments of educa- necessary "to the comprehensive planning, opera- tion. Yet, for many states, there still remains vast tionand evaluation of the Title I 41 program room to enhance their disposition and enforce- .. . . and therefore was public information ment capability. under the TitleIregulations. The U.S. District Court in New Mexico agreed with the plaintiffs' Review of Enforcement Actions LitigatedUnder assertions and held that the school district by law Title I was required to release the requested information. Surprisinglylittlelitigation has occurred However, on appeal to the U.S. Circuit Court of under TitleI. During the past eight years, hun- Appeals for the .10th Circuit, the lower court dreds of audits, studies and ieports have been decision was reversed. It held that plaintiffs had published by public and private agencies docu- stated no cause of actionarising from HEW menting a wide variety of illegaluses of Title I regulations because "Congress did not intend to funds and violations of TitleIrules and regula imply a civil remedy available to PAC members in tions, but less than two dozen suits have been the Title I statutory scheme," and further that "no filed. Of these, only a few have been prosecutedto compelling interests exist dictating that this court the point that a court rendereda final decision. should exercise jurisdiction."4" Significantly, the

29 10th Circuit Court of Appeals disposition of the with the type of educational programs that can be standing issue is contrary to the decisions of the funded legally under applicable Title I laws. These other federal courts who have been faced with suits typically allege one or more of the following claims brought by Title I parents under the Title I violations: "supplanting, "48"noncompara- Act." bility,"45failureto"concentrate"Title I funds50 and failure to conduct "proper evalua- Access to DecisionMaking Suits tions."51 In Natonabah v. Board of Education of The majority of suits brought under Title I Gallup McKinley School District,52 Indian school have challenged the failure of LEA officials to children who attended public schoolinrural afford adequate opportunities for participation to sections of McKinley County, New Mexico chal- lenged the legality of the county's Title I program. Title I parents. Under applicable Title I regula- tions,local education agencies are required to They alleged, inter alia,that the district had establishparent advisorycouncils(PAC's). A committed massive comparability violations when majority of the members of these PAC's must be it used Title I funds to bring the total expenditures parents of children eligible to be served by Title I. in the rural, predominantly Indian schools up to PAC members have certain rights: to review the the level of expenditures maintained with state effectiveness of past Title Iprograms; to inform and local funds alone in the urban, predominantly and consult with parents concerning the services to Anglo schools. The court agreed with the plain- be provided to their children; and to be involved in tiffs' contentions and found that the defendant "the planning, development, operation and evalua- school district spent less money per Indian pupil tion" of Title I projects,both existing and than nonIndian pupil on school buildings, equip- proposed." These rights are also so unambig- ment and instructional services from combined uously expressed in the law that counsel for local state and local sources. It also found that dispari- defendants invariably seek to settle the suits by ties between these two types of schools existed in accommodating the parents' demands.45 However, manyforms:"unequalschoolaccreditations, some school district defendants have refused to achievement, overcrowdedness and the assignment changetheirprograms with regardto parent of experienced faculty." The court found further participation until ordered to do so by federal that: courts.46 Notwithstanding the federal aid pro- A related type of law suit deals with the gramsdesignedtogiveanextra authority of decentralized school districts to make measure of educational opportunity to decisions regarding the use of Title I funds. For Indian children, the facts pointed to example, when the New York City school system the conclusion that their educational was decentralized by an act of the legislature in opportunitieswereseriouslysub- 1969, a dispute arose over the authority to decide standard and that one of the reasons the use of Title I funds. Under the decentralization for these disparities was that the local legislation, more than thirty decentralized school school authorities did not expend a districts were given the authority to decide the proportional amount of the district's content of their educational programs. However, resources onIndians.53 the centralized board retained its decisionmaking The court held that the plaintiffs' parents powers regarding the educational programsfunded had standing and that the school district's program by Title I. In response to an action brought by the was in violation of applicable Title Ilaws and the Community School Board officials for Community Fourteenth Amendment to the U.S. Constitution. School District No. 3, a state court ordered that Instead of ordering a withholding of Title I funds thedecentralizeddistricthadtheexclusive and other federal education monies that were the authority to determine how the Title I funds were subjectofthislitigation,thecourt ordered to be used.47 affirmative relief whereby the local school district defendants were required to submit a compre- Suits Seeking to Correct Unlawful Uses hensive plan for correcting disparities under guide- of Title I Funds lines established by the court." Another significant decision regarding the The third category of Title I litigation deals

elk ri 30 /INEQUALITY IN EDUCATION 4.0:41 use of Title I funds was rendered six months later Department of Justice to obtain compliance from inanotherfederalcourtcase,Nicholsonv. the Stateof Alabama forequal employment Pittenger.55[For an analysis of this case,see opportunity assurancesit made in a variety of Inequality in Education g15, November 1973, applications for federalfunds under programs pages 86-87.1 administered by HEW. In an action brought in A third suit concerning the unlawfuluse of federal court in Alabama, it was held that HEW TitleI was filed against the Missouri Department was not restricted solely to a fund cut-off as a of Education, challenging itsrefusal to permit remedy for violations of the rules regarding the use Title1 funds to be used in non-public schools for of federal funds. On the contrary, the judge held compensatory educationprojects.56 The U.S. that the state had made a contract for these funds Court of Appeals for the Eighth Circuit found that and that they were obliged to carry out the terms the statutory provisions permitting theuse of Title of the contract." Accordingly, he ordered the Ifunds in non-public schools were constitutional specific performance of the contract and required and that the plaintiffs should be permittedto the state to continue to receive the money with receive Title I funding. This decision isnow under the precondition that it correct the various viola- review by the U.S. Supreme Court anda decision tions found. is expected in early spring 1874. PART II U.S.O.E.'s Role in Title I Litigation COMPARABILITY There is a consensusamong U.S.O.E. officials who are responsible for enforcing Title I Comparability Compliance and Enforcement laws that the enforcement powers available to them are both inadequate and potentially counter- Before July 1, 1972: productive.Theyperceive that the solelegal The comparability amendments passed by remedy available to them to correct legal viola- Congress in spring 1970 caned for all districts who

tions by SEA'sisto withhold Title I funds. applied for Title I funds to demonstrate equality Federal education officials are reluctant to rely in school services by July 1, 1972. Beforea district upon such a remedy, not only because it "throws could qualify for Title I funding, it was required to the baby out with the dirty bath water" in that it demonstrate that its TitleIschools were com- deprives the school children of much needed Title parable to the average of its non-Title I schools for I funding, but also because it may raise the ire of the 1970.71 school year in the following areas: local and state officials who might be able to exert political influence at the federal level to reverse 1. Ratio of pupils to certified classroom any U.S.O.E. decision to terminate funding. teachers. It is incorrect to assume that withholding of 2. Ratio ofpupilsto other certified fundsis the only remedy available to federal instructional staff. officials.Insteadof employing thepolitically 3. Ratio of pupils to non-certified in- volatile technique of withholding funds, U.S.O.E. structional staff. is able under the law to refer violations to the U.S. 4. Expenditure per pupil for in- Department of Justice and to request their assist- structional salaries, exclusiveof ance in bringing about compliance with federal amountspaidonthebasisof laws. Under the Title I applications submitted by longevity. the states to the federal government, state educa- 5. Expenditure per pupil for other in- tion agency officials have provided written assur- structional costs. ances that locally approved programs will operate in compliance with applicable TitleIrules and A five percent leeway for each of the five regulations. Under related programs, HEW in the criteria was allowed so that the comparability past has requested the U.S. Department of Justice standard was achieved if a TitleI school had no to seek affirmative compliance with those assur- more thana fivepercent. shortfall from the ances. non-Title Iaverage. Lack of comparability in any For example, in 1968 HEW requested the one of thefive criteria made a school non-

31 comparable and a single noncomparable school regulations then in effect. SEA officials were left made the entire district ineligible for Title I funds. in limbo, not knowing which rules would apply, No district was to receive Title I monies for the Finally, on March 21, 1973, U.S.O.E. published a 1972-73 school year unless it either met the five totalrevision to the comparability regulations. requirementsinallschools or submitted an These new regulations, which were "proposed" "acceptable"planoutlining how compliance and not "final," were to apply to comparability would be achieved. reports submitted to the states on or beforeJuly In September 1972, three months after the 1, 1973. The finalized rules were not published July 1 deadline for demonstrating comparability, a formally until June 28, 1973. Hence, it was not study of eighty of the nation's largest districts until three days prior to the filing date that local revealed that seventy-nine of the districts (98 %) and state school officials knew what the rules were noncomparable and that in forty-five (56 %) were. of these districts more than half of the TitleI Perhaps the most significant element of the schools did not meet the standards. Futhermore, amended comparability regulations, at least with the study disclosed that fifty-eight percent of the respect to the effect on U.S.O.E. enforcemeat noncomparable districts submitted no plan for policies, was the shift in the period for which the achieving comparability as required by law. Of the data was to be collected. Under the old regulations thirty-four districts that did submit plans, only the school districts were required to show com- twelve were considered minimally adequate.55 parability in the second previous school year (e.g., Remarkably little if any compliance with the the reports due to the states on July 1, 1972 comparability regulations was achieved prior to contained resourceallocationdataforthe the 1972.73 school year, more than two years 1970-71 school year). U.S.O.E. officials decided afterCongress mandatedcomparability.59 infall 1972 thatit was not fair to enforce Moreover, notwithstandingwidespreadcom- comparability rules on the basis of "historical" parability violations, not a single district1,i the data, so the new regulations required that com- countryout of thenearly 5,000 which were parability would be determined on the basis of required to submit comparability reportslost a "current" school year data81 penny of Title I funds because of failure to achieve A significant side effect of this change was comparability by July 1, 1972. that it seriously undercut the potential for com- parability enforcement for two school years. As July 1, 1972July 1, 1973: noted above, the 1971-72 school year was com- Developments during the 1972.73 school pletely bypassed because, owing to the confusion year, the first year during which the comparability of what rules applied during November and De- laws were legally enforceable, yielded little change cember 1972, nearly all districts failed to submit in allocation of educational resources by local reports for the 1971-72 school year. Similarly, districts." U.S.O.E. continued its unstated policy the 1972-73 school year was, in effect, over- of refusing to withhold Title Ifunds from states looked because the revised regulations (which which failed to sanction noncomparable districts. required current data) were issued too late during U.S.O.E.'s laxityin enforcement was ex- the 1972-73 school year to expect the local ceeded only by its ability to confuse the states districts to comply with them. Thus, more than about what the requirements for comparability three years following the enactments by Congress were. On November 15, 1972, six weeks prior to of the comparability amendments, there still were the date that LEA's were required to submit no effective enforcement efforts underway. comparability reports to the states, U.S.O.E. an- Among other things, the new regulations nounced that eligibility for Title I funds would be telescoped the three staff ratios used previously based on drasticallyrevised comparability re- into one instructional staff ratio,62 The salaries quirements. Although these proposed revisions per pupil ratio remained intact, but the"other were only speculative and would apply to the instructional costs" ratio is now only required of following school year (1973-74), most districts districtswithoneormore noncomparable failed to submit any reports by December 31, schools. Where there were previously five criteria 1972 as they were required to do under the for comparability, only two remained.

32/INEQUALITY IN EDUCATION %logo Another major change was the elimination of quired to submit a summary form identifying all the requirementthatnon-comparable districts districts not then in compliance. submit a plan for achieving comparability. in order October 1,1973: The date established by to receive funds under the new regulations, non the U.S. Commissioner of Education for LEA's to comparable districts must submit a revised com- collect comparability data for reports to be sub- parability report demonstrating that educational mitted to the state on December 1, 1973. resources were actually reallocated so as to achieve November 1, 1973 (and each succeeding comparability. "We will do better next time" is no November 1): The U.S. Commissioner of Educa- longer good enough. tion is required to specify a date (set for October These new regulations were the result of 1, 1973 for the first year's reports) no later than considerable discussion and compromise among November 1, on which comparability information federal, state and local education officials. Al- for the schools must be collected. though they made it easier for districts to achieve December 1, 1973 (and each succeeding comparability, they improved the prospects for December 1): Comparability reports were required effective enforcement by plugging the "plan" to be submitted to the SEA's. These reports must loophole with a requirement for reallocation of demonstrate that the LEA's achieved compara- resources and the submission of a "revised report." bility for the 1973.74 school year or their Title I To test the effect of the new regulations and funds for 1973.74 must be withheld until com to assess the progress of compliance, an indepen- parability is demonstrated in a revised report. dent study was conducted in 112 districts.63 Both January 1, 1974 (and each succeeding Jan- the old and the new standards were applied to uary1): The states must follow the same pro- each district. Under the old standards 101 districts cedure as on September 15, informing U.S.O.E. of (90 %) were non-comparable. However, under the non-comparable districts. A copy of the compara- new regulationsfewer districts appeared non bility report for each LEA in the state which has comparable (i.e., 82 districts or 73% of the study). been determined to be in a stratified national In only five districts (4.5%) were over half the sample of LEA's for that year must also be Title I schools non-comparable. submitted as well as copies of all revised reports. While the data in this study were limited, two A recent tabulation of the state summaries generalizations are permissible. First, using the old (see Table I) required to be sent to U.S.O.E. on or criteria, only 21.5 percent of the districts in the before September 15 which outlined the compli- study were over one half non-comparable as ance efforts made by districts for the 1972.73 compared to 56.2 percent in the original Septem- school year revealed that:65 ber 1972 study, suggesting some improvement in Of some 4,805 districts required to compliance between July 1972 and July 1973.64 submit comparability reports by July Second, it demonstrates that the new regulations 1, 1973, 541 (11.26%) had failed to are easier to_comply with. produce forms as of September 15.

PostJuly 1, 1973: 525 districts (12.3% of the total num- The new regulations also set a new timetable ber submitting forms) failed to demon- for submitting reports. strate comparability.66 May 31, 1973: Pupil enrollment, staff totals and yearly instructional salary totals were to be Of the 525 non-comparable districts, collected on or before this date for the 1972--73 133 (25%)either submitted inade- school year. quate revised reports or failed to sub- June 30,1973: LEA's were required to mit revised reports.67 submit a comparability report to SEA's. The Reports submitted for the 1973-74 school report was to contain data collected on or before year showed some improvement. The summaries May 31, 1973. The SEA's were to use this report (see Table II) required to be submitted to U.S.O.E. to determine whether LEA's were eligible to on or before January 1, 1974 yielded the fol- receive Title I funds for the 1973-74 school year. lowing results:68 September 15 1973: Each state was re- Out of 3.381districts required to

33 33 TABLE f Spring 73

Revised Not Total 7: of Req Reports Corrective Acceptable Approved Title I Detailed Actually Action Reports Funds Dist. Reports Submitted Required Submitted Withheld

Alabama 125 125 125 4 4 Alaska 23 7 6 2 1 1 Arizona 200 45 44 6 5 2 Arkansas 381 15 15 1 1 California 903 433 343 134 73 61 Colorado 168 75 75 5 4 1 Connecticut 163 108 92 10 Delaware 22 9 9 District of Columbia 1 1 1 1 Florida Georgia 188 188 188 2 2 Hawaii 7 7 7

Idaho 1 Illinois Indiana 281 281 281 6 0 Iowa 450 450 423 5 3 2 Kansas 290 73 61 8 8 Kentucky 188 23 23 4 4 Louisiana 66 51 51 15 15 Maine 227 227 141 Maryland 24 24 24 10 10 Massachusetts 242 119 119 15 10 5 Michigan 565 157 141 27 21 16/6 Minnesota Mississippi 155 155 155 2 2 Missouri 400 46 38 7 8 2 Montana 286 15 15 Nebraska 308 23 23 3 3 Nevada 11 11 11 1 1 1

New Hampshire 147 147 124 1 1 New Jersey 417 91 91 22 22 New Mexico 87 23 23 6 6 New York 695 695 693 21 21 North Carolina 152 59 59 26 26 North Dakota 271 7 7 1 1 Ohio 590 186 186 4 3 withdrew Oklahoma 611 23 20 7 6 4 Oregon Pennsylvania 506 96 63 5 5 10 Rhode Island 39 25 24 2 2 1 South Carolina 96 20 20 14 14 South Dakota 190 40 40 28 28 Tennessee 146 50 49 20 21 Texas 1,029 127 99 26 3 27/17 Utah 40 40 30 12 9 3 Vermont 246 5 5 Virginia 131 131 131 20 20 Washington 298 53 52 3 3 West Virginia 55 55 55 35 35 Wisconsin 404 253 74 13 9 7 Wyoming 43 11 8 1 1 Total 4,805 4,264 525 392 11.26% 25%

34 /INEQUALITY IN EDUCATION 3 1 Table II Fall 73 Total No. of Reg. Reports Corrective Revised No. LEA's Title I Detailed Actually Action & Dig. Repot ts With Funds Comp. Rpts Submitted Rev. keg. Sub. & App. Withheld

Alabama 125 37 27

Alaska OW Arizona 184 45 44 4/3 1 Arkansas 3/2 383 29 29 2 2 California 907 406 357 10 5 Colorado 5 157 63 31 5 5 Connecticut 163 81 80 1 Delaware 22 9 9 District of Columbia 1 1 1 Florida 1 67 67 67 10 10 Georgia 188 51 51 4 4 Hawaii Idaho Illinois Indiana 265 238 227 11 6 4 Iowa 432 38 38 Kansas 291 61 61 2 2 Kentucky 186 20 20 1 1 OEM Louisiana 66 34 34 5 4 1 Maine 227 227 226 Maryland 24 24 23 7 7 Massachusetts ... Michigan 548 150 145 6 6 Minnesota 415 28 28 3 3 Mississippi 155 12 12 Missouri 343 43 43 4 4 Montana 155 13 13 1 Nebraska 1 301 22 22 3 3 Nevada 11 11 11 New Hampshire 147 11 7 New Jersey New Mexico 94 25 25 New York 617 617 617 8 8 North Carolina 151 53 53 10 10 North Dakota 259 8 8 1 Ohio 1 570 179 179 1 1 Oklahoma 586 23 23 Oregon 218 54 52 3 3 Pennsylvania 498 95 95 1 1 Rhode Island 38 25 25 2 2 1 South Carolina 96 51 50 20 20 1 South Dakota 210 17 17 Tennessee 146 56 56 8 8 Texas 996 128 124 13 13 5 Utah 39 39 Vermont 221 5 5 Virginia 130 130 130 7 7 Washington West Virginia 55 48 48 6 6 1 Wisconsin 412 96 59 1 1 37 Wyoming 38 11 11 1 1 Totals 3,381 3,183 161 142 5.86% 11.89%

33 35 submit comparability reports by De- funds are in fact being 'geld back, are these funds cember 1, 198 (5.86%) failed to do provided retroactively to districts when theappli- so 69 cation is finally approved? The lawclearly states that funds withheld due to non-comparability are 161 districts (5% of the total number not to be supplied retroactively.Yet, the Septem- submitting forms) did not meet the ber form failed to address this issue: itleft some and comparability standards. discretion to the states in filling out the form as a result failed to producethe desired informa- Ifunding for 19 of these noncomparable districts tion about the status of Title (11.89%) either submitted inadequate non-compliant districts.72 revised reports or failed to submit The January 4524 form is an improvement in both wording and response. The relevant ques- revised reports. tion now reads: "List all LEA's fromwhich the State Education Agency is required towithhoid A comparison of the two sets ofstate acceptable summaries offers an improved picture of compa- funds because they have not submitted revised comparability reports." This newwording rability compliance, assuming that the data sum- clarifies the funding status of districtsfailing to marized is accurate, reliable and verifiable. How- submit revised reports and sheds some light onthe ever, just how much of this improvement isdue to question of retroactive payments. It isclear from the new regulations rather than to genuine efforts the summaries that funds were withheldfrom at at compliance is not clear. Some may beattrib- least twenty-five districts across the countryfor utable to the districts' increased sophistication in failure to submit revised reports. For eightof these reporting. the dates of fund terminations were The apparent progress raises a number of districts, listed, indicating that resumption offunding was important issues for further study. What has been done about the 541 districts in September and the not retroactive.73 198 districts in January who failed to submit any This new wording, however, does not clarify comparabilityreports? What has happened to the status of districtsnot submitting original districts who failed to submit revised reports? comparability reports by December 1. For ex- 407 Have TitleIfunds been withheld from these ample, the California summary notes that districts as required by law? The answer to these districts were required to submit reports,but lists questions should be reflected in the state sum- only 357 districts as having submitted reports. maries; unfortunately thatis not the case. The Colorado required sixty-three districts tosubmit problem stems from U.S.O.E.'s wording inits reports, but only thirty-one wereactually sub- standardized questionnaire." Technically, it does mitted. Neither state accounts for itsdifferences. not require states to account fordistricts who Nevertheless, with the exception of these two submitted late reports or who never sent reports to states,the number ofinconsistencies between the state. Hence, Maine listed 227 districts who reports required and reports receivedis greatly were requiredto submit reports, butitonly reduced from the September summaries.Several received 141 reports. Wisconsin was even worse, states account for differences intheir answers to with 253 reports required and 74 received; for questionsix.74Inall other states the overall California the numbers were 433 and 343, respec- non-response rate is less than one percent.Simi- tively. Yet on the forms submitted by thesethree larly, inconsistencies between the numberof dis- states there is no mention of whataction, if any, tricts failing to submit revised reports andthe was taken against the unaccountedfor districts.71 number of noncomparable districts are also many By drafting the question in terms of applica- fewer.The Januarysummaries,thoughnot tions that "have not been approved," theSeptem- entirely debugged, give a much more accurateview ber 4524 form is ambiguous about whatactions of what is actually happening at the stateand local were taken with respect to theTitle I funds in level and offer a more effective monitorir.c,tool those districts failing to submit revised reports.Is for U.S.O.E. an unapproved applicationthe equivalent of a One criticalissue left unresolved by the funds cutoff as far as the states are concerned?If September and January state summaries is the " aer .a.) 36 /INEQUALITY IN EDUCATION extent to which the comparability reports reflect Hopefully, the fall Lambda report will yieldmore the actual allocation of resources in local districts. encouraging results than the spring report. Using One might argue that U.S.O.E. effortsover the the same actual comparability reports, the Lambda past three years have been directed to produce system checks a district's reported comparability reports that demonstrate comparability, not to ratios against those generated by its computer produce comparable districts. U.S.O.E. procedures system.75 As defined by Lambda,an LEA's forreviewing comparability forms have been comparability formis "deemed to have a dis- limited to checks for completeness and arithmetic crepancy if any of its reported numbers have been mistakes. To date U.S.O.E. has exerted almostno discerned to be internallyinconsistent." The efforttoassess the reliabilityof data which results of the Spring Survey are revealing and purports to show comparability. However, now disturbing: out of the 526 reports analyzed for that the majority of comparability reports demon. miscalculations,more thanhalfcontained strate "paper" compliance, it would seem to bea " discrepancies;"infivestates Lambda found particularlypropitioustimeforU.S.O.E.to discrepancies in every report submitted.76 expand its monitoring policies and beginto check Were the Lambda system operating without the validity of the data. the seven month timelag of the first report, the information provided could becomean invaluable The Lambdo System monitoring tool for HEW. Although Lambda staff indicate that continual use of the system would Some efforts in this direction have been produce increasingly sophisticated calculations and initiated by the Office of HEW's Assistant Sec- monitoring, efficient and timely management of retary for Planning and Evaluation (ASPE). In early the system seems something that HEW cannotor 1973 ASPE conti acted with a private consulting will not pursue. And despite the potential useful firm, Lambda Corporation, to developa computer ness of such a system, automated monitoring still izedsystemthat would checkcomparability remains dependent on the quality of the data reportssubmittedannuallytoU.S.O.E. This submitted in the reports themselves." system was supposed to be operational by fail Itis significant to note that some federal 1973,in time to check some of the reports officialsareawareoftheneedto expand required to be submitted by July 1,1973.These U.S.O.E.'s monitoring capacity. A January1974 "Spring Survey" reports were to be used by the story inEducation U.S.A.quotes one U.S.O.E. states to determine whether LEA's would qualify official as admitting that current district analyses for Title I funding for the1973-74school year. aresuperficialandyieldonly"paper com- However, due to a variety of factors (e.g..late parability."78 According to thestory, U.S.O.E. finalization of the regulations, tardy submission of intends to visit "selected" districts in order to spring reports by LEA's to SE A's and by SEA'sto verify payroll, purchasing and personnel records. U.S.O.E. and delays in developingan operational However, U.S.O.E. has made no futher plans in computersysteminWashington), thespring this direction and no districts have been selected Lambda Report was not available to HEW until for visits. February 1, 1974, exactlyseven months after the Once again, the task of investigating com- reports were required to be submitted to the parability violations falls upon concerned parents states. and local organizations. Thus, although computerized analysis of the spring survey revealed much interesting informa- Independent Efforts to Gain tion,itwas obsolete upon receipt by HEW. Comparability Compliance Apparently U.S.O.E. does not plan to utilize this data to enforce comparability. And it nowappears Since July1,1972,the date that the that, because of delays in contracting for analysis comparability laws took effect, local attorneys and ofthefallcomparabilityreports,the HEW parent groups across the country have been moni- computer analysis of reports due December 1 may toring compliance by theirlocaldistricts.In not be available untilafterthe March 31 deadline addition to examining comparability reports for forcuttingofffunds to delinquent districts. incidents of non-comparability, several techniques

37 have been developed which permit monitors to go overstated enrollments for non-project schools and "behind" the data on the comparability reports to slightly understated some project school enroll- verifyitsaccuracy.79 One such checkisto ments. compare pupil enrollments and teacher assign- After several months of investigation by The ments on a comparability report with similar data Citizens'CommitteeforChildren (aprivate compiled independently each year by the HEW citizens' group), it was discovered that New York Office of CivilRights (OCR). The OCR data, school officials were using adjusted enrollment whichprovides totalenrollment and full-time figures. The "net register"figure used in the teacher statistics for each school in every district comparability report was not an actual enrollment in the country, can be used to make three crucial figure, but a calculation based upon the actual comparisons. enrollment adjusted by the average number of OCR data can be used to verify enroll- subjects taken each day 89 ments recorded on comparability re- The average number of subjects taken in the ports. The two sources differ in the New York High Schools during the 1971-72 way they count pupils but the differ- school year (the latest year for which we have ence is slight and does not prevent data) ranged from 4.9 to 7.7. Research by the comparison. Citizens' Committee indicated a positive correla- tion between a school's average number of subjects OCR teacher data can be used to and the socioeconomic characteristics of its atten- check a comparability report's listings dancearea(i.e.,the wealthier neighborhoods for the FTE (full-time equivalent) in- tendedto have a greater number of subjects structional staff category. The OCR offered). The implication this had for compara- pupil and teacher counts taken to- bility was considerable. Since any school with an gether can also be used to check the average number of periods exceeding five inflated pupil/teacher ratios listed on the com- the "net register," the official comparability re- parability report. portfor New York's academic highschools showed no incidences of non-comparability. How- OCR data can be used to check the ever, when actual register pupils were used, the validity of nonTitleI averages, the schools in wealthier areas were shown to have standard against which Title I schools substantially higher per pupil expenditures and are measured. OCR data for non-Title substantially lower pupil/teacher n.tios.91 And I schools is used to reconstruct these when actual register pupils were substituted into averages. the City's comparability report, substantial non- comparability emerged for five Title I schools. The OCR checks of pupil data have not produced amount of additional resources necessary to make substantial disparities on the whole, although there these schools comparable was _calculated to be have been several cases of data variances which nearly one million dollars.82 have lead to further investigations. One fascinating The net register formulation in New York example is a study done on the 1972.73 compa- not only worked to frustrate the purposes of rability report for New York City's academic high comparability, but also had severe implications for schools. the allocation of state and local resources to New York's comparability report utilized educationally disadvantaged children in 1971-72. the five ratio formula of the old regulations. It High school students in New York City's poor listed data for all schools, as well as non-Title I neighborhoods had substantiallyhigherpupil/ averages. Preliminary comparison of the figures in teacher ratios than students in wealthier neighbor- the pupil column on the report (marked "net hoods, and equally as important, they had a much register") with the OCR figuresrevealed sub- shorter instruction day. Children attending poor stantial inconsistencies. The variances tended to be schools received less schooling at lower resource much greater between non-Title I schools than Title levels. I schools.Curiously,the OCRenrollments The OCR teacher data is even more impor- indicated that the "net register" column greatly tant than the OCR pupil enrollments. The regula-

38/INEQUALITY IN EDUCATION tions prohibit inclusion of federally paid instruc- 29.67 to 32.92. According to the OCR data for tional staff in demonstrating comparability; yet, the Mobile elementary schools not one TitleI incorporating staff paid from federal funds into school was comparable, although the officialre- comparabilityreportsis common practicefor portreflectedfullcompliance. A conservative many school districts. The OCR teacher statistics, estimate is that it would require 8.6 teachers to which include teachers paid from federal funds, correct the OCR differences. Using the previous provide an excellent comparison.83 base salary of $6,200, this would cost the school Schools listed on comparability reports as hav- system more than $50,000. ing a significantly higher number of teachers than As these examples have demonstrated, OCR the OCR data, or districts which consistently list comparisons are not precise indicators. Wherever pupil/teacher ratios conforming to OCR figures, possible, such findings should be supplemented are immediately suspect. Special scrutiny is war- with additional sources such as actual payroll lists, ranted when suspect schools are borderlineon staff assignments and other information generated comparability. One example among many is that by the individual school system. Nonetheless, the ofthe 1971-72 comparability report of the OCR data helps direct investigations by private. .Mobile County Public Schools. The data for citizens to likely violations and, unlike informa- several marginally comparable schools was at odds tion from local districts, is readily available.85 with OCR. One school, Fonvielle Elementary,was Next to the OCR data, the most important listed onthecomparabilityreportashaving comparability checkisa copy of the district thirty-one teachers and a 33.61 pupil/teacher ratio budget. The first check is to see if the total budget (the maximum permissible ratio for comparability includes federal TitleIfunds, which are usually in Mobile was 34.7). The OCR data, however, excluded. A comparison can then be made be- listedonly menty-five teachers for Fonvielle, tween the district'stotal dollars budgeted for which was the equivalent of a pupil/teacher ratio instructional salaries and a like figure generated o: 38.20 According to OCR, a minimum of three from the comparability report.86 This isa particu- and one half teachers were needed at Fonvielleto larly valuable second check for districts suspected bring it into compliance." Assuminga base salary of including TitleIteachers in the comparability of $6,200, it would cost the Mobile County school reports. Where the totals from the comparability system a minimum of $21,638 to make thisone report indicate substantially more spent on in- school comparable. structional salaries than the budget and where the This same Mobile County report is also an OCR data is equally out of alignment, there is excellent example of the third major use of OCR prima facie evidence that the district has illegally data, checking non-TitleIaverages. The regula- included teachers paid from federal funds in its tions require only that averages for non-TitleI report. schools be supplied on the comparability report; school-byschool data for nonTitle 1 schools is not Comparability EnforcementA Summary required. Since non-Title I school statistics are not listed individually on most comparability reports, The quality of comparability reporting has it is a simple matter for a district to achieve facial improved because state and federal monitoring comparability by fudging the non-Title I averages systems have improved. However, two principal ina way that lowers the standards by which problems remain. First, there is little ifany effort project schools are judged. The OCR data provides to determine the extent to which comparability an invaluable check of these averages. The July reports reflect actual allocation of resources within 1972 Mobile report listed six project schools in the school districts (i.e., is "facial comparability" the grade span of1 --6. The non-Title Iaverage for same as "actual comparability?"). Second, even these schools (adjusted by 5%) was 35.72 pupils when monitoring systems disclose thata school per teacher, and all the project schools were listed districtis non-comparable (either "facially"or as comparable with ratios ranging from 29.00 to "actually"), there is little evidence that SEA'sor 35.09. The OCR data produces an entirely differ- U.S.O.E. have taken or will take thenecessary ent picture. The non-Title I school ratio becomes steps to enforce compliance with the compara- 29.41 and the TitleIschool ratios range from bility requirements.

33 39 96 of Title I te of # of non-Comparable Schools that were City Students Title I Schools nonComparable .14111.

New York 1,125,449 110 22% Los Angeles 620,707 Not yet received Not yet received Chicago 557,141 Philadelphia 282,965 Detroit 276,655 57 37% Dade Cty. (Miami) 241,809 Not yet received Not yet received Houston 255,410 0 0 Baltimore 186,600 39 44% Dallas 154,580 9 12% Cleveland 145,196 0 0 District of Columbia 140,000 23 34% Memphis 138,714 44 77% San Diego 124,604 8 29% Columbus 106,676 0 0

The reluctance of U.S.O.E. to enforce the PART III comparability regulations was amply illustrated in THE FUTURE OF TITLE I a memorandum recently distributed among high levelofficials within HEW. The memorandum It seems almost certain that a renewed and entitled "Title I ComparabilityEnforcement and expanded Title 1 program will be in operation Disincentive Issues" dealt with the political prob- nationally for the 1974.75 school year. The latest lems of enforcing comparability and reveals that Title I renewal bills being considered by Congress HEW is aware of the substantial noncomparability include a number of distinct improvements over that exists throughout the country. For example, the previous legislation. One improvement is that in an appendix to the memorandum, the above paret advisory councils (PAC's) will be required comparabilitystatistics from U.S.O.E.'s Spring for each TitleIproject school where previously 1973 Survey were provided for fourteen of the only district PAC's were required. Parents on nation's largest urban school districts.87 school based PAC's will be selected by parents of Despite this awareness of non-comparahility, childreninthe school ratherthan by school federal officials maintain their reluctance 4, en- officialsasis currently the case with district force the law. Instead, there seems to be increasing PAC's.88 discussion about what types of steps might be Perhaps the most significant change is the taken to pressure the school districts into com modification of the formula by which Title I funds pliance.Inthis connection, the HEW memo- have been allocated among states and school randum considers three options: 1) to refer cases districts. Under the old formula, school districts to the Justice Department to bring suit against were entitled to Title I grants based on the number non-compliant districts; 2) to adopt a graduated of children from families with annual incomes penalty system; or 3) to allow overbudgeting to below $3,000 as well as on the number of children compensate for non-compliance. Considerations of from families with incomes in excess of $3,000 this type should have occurred prior to July 1, who receive payments under the federal program 1972, the first date when comparability was to be ofaidtofamilieswithdependentchildren enforced. Nevertheless, it is encouraging to note (AFDC). The use of AFDC children in computing that at least some HEW officials are beginning to TitleIallocations was originally added to the go through the motions of enforcement. Until formula because the family income data was these decisions are made, it will be incumbent collected only once a decade, while the more upon private attorneys acting on behalf of Title I frequently collected AFDC dote would be a more parents to gain compliance. accurate update to the poverty data from the 40 /INEQUALITY IN EDUCATION 40 Census. However, according to the House Come changes is that the wealthier states, who tendto mittee, Report, the use of AFDC statistics has have relatively high AFDC rolls, will suffercor caused a distortion in the formula: responding decreases in Title Iallocations, while Cver the years. . AFDC children the poorer states will have relative increases. An ccunted under the formula have grown illustration of this effect may help to clarify the to such an extent that they have change. overwhelmed thechildren counted During fiscal year 1974, New York State is from the Census. In 1966, 10% of the eligible for almost four times as much TitleI Title I children were AFDC children. assistance as Texas (18% of the national total for Durirg the present fiscal year they New York vs. 4.5% for Texas), although Texas has total over 60% of the children.89 only a slightly lower percentage of children in the To compensate for this increase, the Title I country than New York (5.9% as compared to renewalbills under consideration substantially 7.4%). Under the new formula, Texas' share will decrease the number of AFDC children counted in increase to 10.9 percent, while New York's share the allocation formula. First, the familypoverty will drop to 6.5 percent." line has been raised, thereby reducing thenumber Those who will lose most under thenew of AFDC children above the oldpoverty line. Title I formulation appear to be large urban school Second, the number of AFDC childrencounted districts. In a dissent to the Committee Report above the new poverty line has been reducedto filed by a group of Congressmen representing two thirds. The principal consequence of these urban constituencies, expected 1975 Title I alloca

4,

Photo courtesy of the Southern Regional Council BESTCOPYNOB

41 tons were listed for forty-.three of the nation's creased federal enforcement will be greater if HEW largesturban schooldistricts. Of those listed separates the functional responsibility for enforce. eighty percent will suffer a fifteen percent reduc- ment from the responsibility to provide technical tion in funds, assuming the appropriation level for assistance and guidance to state and local educa- 1974 is retained for fiscal year 1975. Such a tion agencies who carry out Title I programs. reduction represents the maximum possible loss For example, the HEW Audit Agency could under the new legislation.91 Despite the relative begivensoleresponsibilityfor determining loss among urban areas, the total funding level for whether or not compliance with comparability or the renewed legislation will probably be sufficient. other TitleIregulations is being achieved by ly high to increase the Title I allocations of most school districts. If compliance were not achieved, districts, even some urban ones. the Audit Agency, in conjunction with the Depart- It appears likely that the renewed TitleI ment of Justice, could move forward in efforts to legislation will place stronger demands on state achieve such compliance. Under this enforcement and local education agencies to comply with the scheme, the responsibility to work with stew and laws governing Title I expenditures. Furthermore, local education officials in guidance, technical the federal government's power to enforce Title I assistance, evaluation and needs assessment would laws would be made more explicit than it is in the remain the responsibility of the U.S. Office of current law. For example, the Senate Committee Education. on Education is contemplating the inclusion of the Ifone supports the concept of federal following language in its Title I renewal bill (S. compensatory education, it is essential that posi- 1539): tive steps be taken immediately to insure that Title Whenever the Commissioner, after rea- Ilaws are enforced. The reason is quite simple: sonable notice and an opportunity for although significant lobbying efforts have been hearing, finds that there has been a exerted over the years to increase the level of failure,by any recipient of funds federalfunding to thirty-three percent of the under any applicable program, to com- nationaltotal from its current level of seven ply substantially with the terms to percent, the prospects for such an increase are which such recipient has agreed in negligible at this time. The belief that Title Iis order to receive such funds, the Com- simply a forerunner to expanded general federal missioner shall notify such recipient aid contribution to public education is largely thatfurther payments will not be erroneous. Since Title I was established to increase made to such recipient under that the achievement levels of children in poor areas program until they are satisfied that who are behind in school, public policy makers are such recipient no longer fails to com- beginning to look with increasing scrutiny at the ply with such terms. Until the Com- program's actual effectiveness. missioneris so satisfied no further payments shall be made to such Footnotes recipient. The terms of any application for 1 Pub.L. 89-10, 20 U.S.C. Secs. 236-244, funds under any applicable program 331 332b, 821 827, 841 848, 861-870, 881-885. shall constitute a contractual agree- For a good history of events leading up to and including ment between the Commissioner and the passage of the Elementary and Secondary Education the applicant Such agreement shall be Act, see, Bailey, Stephen K. at al., ESEA: The Office of Education and Administrators of Law, Syracuse, Syracuse specifically enforceable by the Com- U. Press. 1968. missioner in any court of the United 2. 20 U.S.C. Sec. 241(a) etseq. States. (Emphasis added) 92 3. Final Iflanguage similar to the above quoted bills and supporting reports have been produced by the education committees of both the House passage is included in the Title I renewal legislation (HR69) and Senate ($1539), and the consensus among to be enacted during spring 1974, the mandate for Capital Hill observers is that these bilis will be passed by the federal government to enforce Title I lawsmay both Houses by June. be sufficiently bolstered to prompt a substantial 4. 7 Education Daily 27.p. 1, February 7, 1974. increase in HEW's efforts. The prospect for in- 5. The relationship between thecost of education 42/INEQUALITY IN EDUCATION 4 2 and its quality has received increasing attention since the 23.45 C.F.R. Sec, 116.34. issuance of the "Coleman Report" in 1966 (Office of 24. 45 C.F.R.Sec. 116.34(c). Education, Equality of EducationalOpportunity). Among the notable authorities in both sides are: C. Jencks. 25. 45 C.F.R. Sec. 116.48. Inequality 11972); C. Silberman, Crisis in the Classroom 26. 45 C.FC.F.R. Sec. 116.52. (1970); On Equality of Education Opportunity (1972) 27. Washington Research Project, Moynihan & Mosteller eds.; J. Guthrie. et A, School & op.cit.,pp. iiiii. Inequality (1969). 28.Planar Corp., "The Silken Purse.. .," op. cit. 6. 20 U.S.C. Secs. 241e(a)(11, (6) & (7). 45 C.F.R. Sec. 116.22(a). For a particularly comprehensive critique 29 P.Briggs. "A Perspective on Change: The of Title I evaluations, see the Planar Corp., "The Silken Administration of Title I of the Elementary and Second. Purse: Legislative Recommendations for TitleIof the ary Education Act," Planar Corp., Washington D.C. Elementary and Secondary Education Act," HEW Con. 11973), p. 10. tract OS -72 -224, October 5. 1973. pp. 111 -112. 30. Hughes andHughes. op. cit., p. 64. 31. See,generally, Washington Research Project. Washington Research Project. op. cit. p.v. "Title I of ESEA: Is it Helping Poor Children?" (1969); 32. Hughes andHughes, op. cit., p.55. Wargo, et al.. "Title I: A reanalysis and Synthesis ofthe Evidence," American institutes for Research, Palo Alto, 33* /bid..pp. 78, 104. California, 1972. 34. Ibid..p. 130. 8. 20 U.S.C. Sec. 241(d)and 45 C.F.R. Sec. 116.3 35. Ibid., p. 50. provide that the maximum amount which a local school 36. Ibid..p. 42. district ILEA) can receive is equal to 50% of theaverage 37* Ibid..p. 47. per pupil expenditure in the state multiplied by the 38.62 N.J. 473, 303 A. 2d, 273 (1973). number of children between the ages of 5 and 17 whose families have an income less than $2,000, or ifmore than 35. 45 C.F .R. Sec. 116.17(n). 52,000. whose families receive aid from the AFDC 49. 45 C.F.R. Sec. 116.17(o). Program. The maximum allocation for a state is the sum 41. 45 C.F.R. Sec. 116.17(n). of the total maximum allocations for all of its districts, 45 42. C.F.R. Sec. 116.41. The total national allocation is the Lopez v. Luginvill, U.S.C.A., 10 Cir. Slip Opin., sum of all the maximum allocations for each state and P. 10 (August 27, 1373). constitutes the authorization for the Title I program. 43* Colpittsv. Richardson. CA #1838 (D.C. Ma.. 9. J. Hughes andA. Hughes, Equal Education: A October 20. 1970); Babbidge v, Richardson, CA #4410 New National Strategy, Bloomington, Indiana.Indiana U. (D.C. R.I., February 8, 19711, See, also Harvard Center Press, 1972. p. 24. for Law & Education, Title I Litigation Materials.0P. cit.. 10. 45 C.F.R. Sec. 116.31(c). Ch. 4, Memorandum on Standing and Jurisdiction,pp. 79-108. 11. 45 C.F.R. Sec. 116.34. 12. 44. 45 C.F.R. Sec. 116.17(o). 20 U.S.C. Sec. 241e. 45. See, 13. e.g., Cantu v. Saunders, CA #2773 (D.C. Harvard Center for Law & Education, Title I E.D. Wash., May 1973); Smith v. Richardson, CA #6978 Litigation Materials (Revised edition, May 1972),pp. (D.C. W.D. Ky., September 20. 1973). 5--6. 46. See,e.g., Sanchez v. Rafferty (D.C. N.D. Cel.,_ _ 14. 20 U.S.C. Sec. 241e. May 5. 1971). 15. J. Murphy. "Title I of ESEA: The Politics of 47 Community School Board,District No. 3 v. Bd. Implementing Federal Educational Reform," Harvard of Education, 66 Misc. 2d 739 (S. Ct. N.Y. Co. 1971), Education Review, vol. 41, no. 1, February 1971.p. 40. af f 'd, 38 App. Div. 2d 1932 (1st Dept. 1972). 16. Hughes andHughes. op. cit., P. 59. 48. 20 US.C. Sec. 241e(a)(3)(8), 45 C.F.R. Sec. 17. Hughes and Hughes. op. cit., pp. 12. 38. 116.17(h). 18. JohnF.Jennings,"FederalGeneral 49. 20 US.C. Sec. 241e(a)(3)(C), 45 C.P.A. Sec. Aid: Likely or Illusory," 2 Journal of Law & Education 116.26 as amended June 28, 1973. 1.13.80 (19731. 59. 20 U.S.C. Sec. 241e(al 111,45 C.F.R. Sec. 19. J. Murphy.op. cit., p. 42. 116.17(c) & (f), Sec. 116.18(a) & (e). 29* Morton Grodzins,The American System: A 5120 U.S.C. 241e(a) (11, (6) & 17). 45 C.F.R. Sec. New View of Government in the United States, Chicago, 116.22a & b. 52. Rand. McNally & Co1966, p. 270, as quoted in J. 355 F. Supp. 716. D.C. N. Mex. 1973. Murphy. op. cit., 45. 53* 355 F Supp.at 733. 21J. Murphy, op. cit.. pp. 52, 53. 54* 355 F. Supp.at 732. 22. 45 C.F .R. Sec. 116.31. Sec. 116.34. 55. F. Supp.- D.C. E.D. Pa. (1973).

43 43 66' Wheeler v. Barerra, 441 F. 2d 795 (8th Cir., the required January summary. Idaho and Illinois have 19711, cert. granted, 42 L.W. 3226 (October. 16. 1973). yet to send in either the September or January summary 67' U.S. v. Frazier, 297 F.Supp. (D.C. M.D. 1958). forms. Note: Summaries submitted after March 1, 1974, 317 F. Supp. 1084 11970). if any, are not included in the Tables. 69. 58.See, generally, the Lawyers' Committee for Note that there is a difference of 1,424 districts Civil Rights Under Law, School Finance Project, "Title I between the 4.805 districts which the states listed as Comparability: A Preliminary Evaluation," September requiredtosubmitcomparabilityreports on their 1972 10E0 Clearinghouse No. 10734). The original September summaries and the 3,381 listed in January. sample was intended to be the 100 largest districts. This is due in part to the fact that districts which allocate Title I funds to all schools or which have only one school however, U.S.O.E. did not have complete data for 20 of per grade span are exempt from filing comparability these districts. reports. Since both compliance and record keeping were 69 The previous year was even worse. An HEW so poor prior to the new regulations, states had no idea auditofcomparabilityreportssubmittedforthe how many districtsfellinto these exempt categories. 1969 70 school year by eleven school districts revealed Thus, the January summary may reflect a more accurate not onlythatallthedistrictsinits sample were expression of the actual number of reports required. iinncompwable, but more importantly, it found that the Some of this difference might also be attributed to an comparability reports submitted by these districts con- ambiguity in the wording of the January form which tamed data which was frequently "unreliable," "unveri- might have led a few states to include only the number of fiable," "invalid," "misleading" and even "inaccurate." districts on the stratified sample in this column rather Curiously, the HEW report, though printed in final form than the total number of reports required. in early fall 1972. was never officially released to the 70.The form (U.S,O.E. #4524, 8/73) used for the public. September 15 summary requests in question six that each 60. R. Stephen Browning and Daniel Badger, "Title district be listed "whose applications have not been IComparability: One Year Later," July 1973 (0E0 approved as of September 15, pending submission of Clearinghouse No. 10733). revised reports." The other questions on the form were: 61.45 C.F.R. Sec. 116.26(b) (7), June 28, 1973. 1) Total number of LEA's that participated in Title I 62. 45 C.F.R. Sec. 116.26, June 28, 1973. Fora programs during school year 1972-73; 2) Number of more complete discussion of the June 1973 regulations LEA's (in item 1) required to submit reports on compara- and their impacts, see, Browning and Badger. op. cit. bility (based on 1973 data) when requesting funds for fiscal 1974; 3) Number of LEA's (in item 2) that actually 63 Browning and Badger. Ibid. reported as of September 15, 1973; 4) Number of LEA's 64. A word is necessary here about the two samples (in item 3) required to take corrective action and submit usedinthis comparison. The sample usedinthe projected revised comparability reports as of the begin- September 1972 study contained reports from 80 school ning of the 1973.74 school year; 5) Number of LEA's fin districts, many of which used 1969-70 data. The second item 4) that actually submitted revised comparability sample contained comparability reports from 112 districts reports as of September 15, 1973. taken from a U.S.O.E. survey. All reports in the second 71. Texas, on the other hand, does a-%_ount for 27 sample were based on either the 1970 71 or 1971-72 districts that submitted late forms, giving the date each school year. was received. It should also be noted that discrepancies in 65.In Table I, note that Florida, Idaho. Illinois, states other than those mentioned are considerably lea. Minnesota and Oregon never submitted the required 72 For example, California lists 61 districts under -September summaries and are therefore not included in the heading of "applications not approved." Judging from the totals. past practices itis unrealistic to assume that !unds were ". A U.S.O.E. analysis of 332 district reports from withheld or were not supplied retroactively to these the stratified sample found 50 of these reports (15%) to districts. (But see, note 73, infra regarding the January 1 be unacceptable. The most common reason was failure to summaries.) comply with the salaries per pupil ratio (24 districts) 73 These figures do not include the 37 districts followed by the pupil/teacher ratio (17 districts). How. listedin the Wisconsin 4524 form under the "funds ever. 13 districts made computationalerrors which withheld" heading. A phone conversation with Wisconsin affected their comparability status. officials indicated that funds had actually been ter- 67. The same U.S.O.E. study also analyzed 137 minated for these districts until the proper forms had revised reports and found 69 (50%) to be unacceptable. been submitted and had not been resumed retroactively. Surprisingly. the reason fornearly half of these in Itis curious to find a state agency that follows the adequacies was that the revised reports were actually regulations closely and yet has so many delinquent submitted showing Title Ischools as noncomparable. districts. Is Wisconsin an aberration or isit rather, an Other reasons included computational errors which affect- indicator of what more states would look like if the ed their comparability status. regulations were equally well enforced? 68. Alaska, Hawaii, Idaho, Illinois, Massachusetts, 74 These states were Connecticut, South Carolina, New Jersey and Washington have, as yet, failed to submit Texas and Wisconsin.

44/INEOUALITY IN EDUCATION 78. In additiontorecalculatingpupil/teacher, dealing with a southern elementary school with a high salarleS/PUP11 and other costs/pupil for both project incidence of poverty. schools and nonproject averages from the figures on the 85.Unfortunately, report. lambda also regrouped schools by grade span if beginning withthe 1973.74 improper grouping were used in the reports. It should be school year, OCR no longer collects teacher data. In an noted that"discrepancies" were frequently, but not effort to eliminate duplication of effort with other federal necessarily, sufficient to result in non-comparability. agencies, HEW ordered OCR to collect only pupil data. 76. Teacher data is now collected by the Equal Employment Lambda Corporation Report 104, ESEA Title I Opportunity Commission (EEOC). The result is that OCR Comparability Reports for the End of School Year pupil data for October 1973 has been available for 1972.73; VolumeI,"State Summaries." Volume 11, months while teacher data is as yet unavailable. EEOC is "District Summaries," and Volume III, "Detailed Reports currently less efficient than OCH in both collection and on Sample Districts," January [sic) 1974. dissemination. Yet, even if the difficulties of access are 77' One workable exception to this is pointed out resolved, there are no longer any guarantees that the data in note 85, infra. will be collected at the same time or will otherwise be 78, National SchoolPublic Relations Assn., Edu- compatible. There is also inconvenience of continuous dependence on separate sources. In short, one of the best CdtiOn U.S.A..WashingtonMonitor,"Title I monitoring and enforcement tools for comparability is Comparability: A New Milestone?" January 14, 1974,pp. 107, 108. currently inaccessible. The implications of this, however, are even more far-reaching. One of the monitoring 79. Fora detailed description of the current possibilities for the future discussed by the Lambda regulations on comparability and an in-depth guide to Corporation is to superimpose the OCR data base over the investigating comparabilityviolations,seegenerally, comparability report data, thus providing an automated Daniel Badger, John D. Miller and Robert Silverstein, check of pupil and teacher statistics entered on compara- Lawyers' Committee for Civil Rights Under Law, School bility forms. However, unless this data is made available Finance Project. "A Manual for Enforcing TitleI Compara- at roughly the same time as the comparability reports, it bility," October 1973 (0E0 Clearinghouse No. 10730). would not be possible to enter the data in time fora 80. Essentially,the formula for this computation useful check. The current division in responsibility for was. data collection makes such coordination rather unlikely. 86.The Net register -Actual Enrollment xAvg. No.of Subjects /Pupil regulationsrequirethatsalariesless longevity, and longevity salaries be included for each Title Minimum Permissible No. of Subjects/Pupil Ischool and the averages of these two figures for the non project schools. The number of non-Title I schools is See,generally,Lawyers' Committee forCivilRights UnderLaw, School FinanceProject, "A Preliminary also required. By adding these figures together for the Examination of the Enrollment Adjustment Procedure Title I schools and multiplying the non-Title Isum by the Used in the New York City Comparability Report for Its number of non-Title schools, a total salaries figure for the High Schools," November 7, 1973 (on file at the Lawyers' report can be calculated for comparison with the budget. Committee offices, Washington, D.C.). Essential to this comparison is the inclusion of longevity salaries. The December 1 comparability forms (0.E. 81. These figures are born out by the N.Y.C. Board 4560.1) request longevity salaries only from districts in of Education's own reports. In a publication entitled thenational sample, virtuallyforeclosing salary, and "School Profiles for Day Academic and Vocational High therefore dollar per pupil comparisons in most districts. Schools" (published annually by the Office of Program- (Note also that it was not until December 1, 1973 that ming, Planning and Budgeting), it is reported that some any district in Alabama supplied longevity information.) academic high schools spend as much as twice the amount per pupil as other academic high schools. 87, Memorandum,Department of Health, Edu- cation and Welfare, from the Assistant Secretary for 82. WhenOCR enrollments are used the figure is PlanningandEvaluation,"Title I Comparability- - closer to S1.5 million. Enforcement and Disincentive Issues," December 6, 1973, 83. The publishedOCR data does not include Attachment A, p. 7; on file with the Lawyers' Committee part -time personnel. However, the actual questionnaire for Civil Rights Under Law. sent to the schools by OCR does ask for the number of 88. House ofRepresentatives Report :V3.805, part-time staff. Thus, by referring to the original question- "Elementary and Secondary Education Amendments of naire responses, a reasonably accurate estimation of 1974," the Committee on Education and Labor Report Part-time staff can be made. accompanying HR 69, February 21, 1974, pp, 121-122. 84. Actually, the numberof teachers required was 89.Committee Report, op. cit., p. 9. probably double or triple that amount The figure of 3.5 911 Ibid.p. 11. additional teachers was calculated on the assumption that there were no teachers at Fonvielle Elementary paid from 91. Ibid.,p. 227. federal funds (i.e.,that the OCR figure of 25 did not 92. The readeris asked here to recall the legal include any teachers paid from federal funds). Such an requirements established by U.S. v. Fraser; see note 57, assumption invariably is erroneous, especially when one is supra.

45 43 THE EQUALLYGOOD OFF,

THE EQUALLYBAD OFF

by Thomas J. Cottle

downtown Boston hotel. Ever sinceI met them,I have thought of out in the kitchen of a Mitchell and his older sister Sallyhave taken asapair.Perhapsitistheirphysical them that their appearance, their age or their goals, orthe way our part-time jobs, but their parents worry these additional respective friendships have evolved that makes me school work has been affected by The childreninsistthat con- see them as being somehowrelated. responsibilities. important Mitchell Walker and Edward Kelly are tall tributing money to the family is more they aren't young men, strongly built, withlarge hands that than their education and besides, slighting their school work all thatmuch. Actually suggest they are nowhere nearfinished growing. they began At fifteen their interests are similar, with sports their grades dropped noticeably when hopes to and in a working three years ago. Sally Walker and girls and school keeping them busy, of becoming way, rather fulfilled. Both areattractive, popular finish high school. Once she thought that idea has disappeared. concerned a nurse, but recently in their schools, and interestingly too, he has a Both Mitchell wants to go to college. He feels with the welfare of younger boys and girls. believes, would have spent time working with children in after- chance. His presence.at college, he encourage his youngerbrothers and sisters to school programs and during the summerin day camp activities. Theirinvolvement with children study. For Edward Kelly the matter of moneyhas where each has younger nc doubt began at home Since the time he was ten brothers and sisters. There are sixchildren in never been a problem. he has wanted to work, but therehas never been a Mitchell's family, five in Edward's. They are each serious need for him to gainemployment. His the first born son, being preceded by a sister.Only father Edward Kelly, Senior, an attorneywith a now are they getting close to theseolder sisters large Boston firm, has worked his wayfrom what whom they see as possessing valuableinformation he calls "humble beginnings" to ahandsome house -about girls in general, and about somespecial girls Kelly was for several in particular. in a wealthy suburb. Mrs. the firm her husband entered Among the similarities, however, loom some years a secretary in law school twenty years profound differences. Mitchell's family livesin a upon graduating from taking a job now and again, but section of Boston that some call workingclass; in ago. She thinks of her role as mother to five fact the families in this neighborhood are poor.His at present is satisfied in children and wife to a man she feels has notyet parents have known many yearsof illness, and She speaks of although they are in their middleforties, their attained the stature he deserves. farther capacity for work has been reduced bydisease. Mr. moving to a largar home in a suburb even Perhaps when the last Walker is employed as a part time bookkeeperin a out ten years from now. school to high small trucking firm. Mrs. Walkeroccasionally helps child graduates from grammar school, the Kelly's will take this nextstep. In the Cottleis affiliated withthe Thomas J. meantime, their present suburbanhome and rustic Washington Re- Children's Defense Fund of the New Hampshire cabin which they useduring the search Project, Inc. His recent booksinclude The summer suits her well enoug, . Voices of School and BlackChildren, White There is little doubt among the seniorKellys Dreams.

46 /INEQUALITY IN EDUCATION 45 that their children will go to college. Young fid has League one of these years wouldn't hurtany. his eye on Ivy League schools and thinks thathis "Must sound strange hearing me talk like academicrecordcombinedwithhisathletic this, huh? Some guys I know, they're taking their abilities will earn him a place in a fine school. He life easy. They just go along not letting anybody speaks about the matter regularly with his father ser what's bothering them. But I talk to my folks and is well aware of the financial burden of having more than alot of guys do. My dad's really taught two children in college at the same time. His father me alot. Like, how a man's really got to work, and has advised him to apply foran athletic scholar- if he does how the rewards come. I saw where he ship since any money he might bring in would grew up. Man, you can't believe a guy could help. Both parents feel Ed should work duringthe accomplish so much, and what the heck, he's only summers and savethe moneyforpersonal fortysomething now. He could still geta whole lot expenses at college. He is doing exactly that. 01 more. 'Course it's not the same for me since I'm afternoon a week and two months in thesummer starting off way better than him. But still, I'd hate he works as a general assistant and delivery boy in to see my life be nothing more than throwing a local pharmacy. The work has started him away lots of good chances. Some guys don't care. thinking about a possible career in medicine, quite They know their old man is loaded so they keep a change from years ago when it seemed natural on spending it. But I see how he has to work for it that he would follow his father into law. soI've got a better sense of what money's all "I think alot about my future," he has said, about. I'm not going to be any failure. Too many "even though I've got a couple ofyears left of high people are counting on me. Not only in my family, school. But these days you have to think about it. but at school too. Later on in life, like my dad There's so much competition thatyou can wreck always says,there are people waiting around, your chances when you're as young as I am. I've watching you, hoping maybe that you'll fail. But already sent away for college catalogues. Last right now, it's like this whole town is out to make week a group of us went into Boston to the library life good for us. I don't mean school's that great. to work on term papers for English. I was looking It could be a whole lot better, but they sure want around in their shelves and I saw they had all the us to go to college. Anybody who doubts that catalogues. That's all I read for three hours. Isaw hasn't been around here too tong,I can tell you alot of West Coast schools that really look good that. too. Up to now I was thinking of staying around "There's something else about the school here, but I'm not so sure anymore. too that's pretty good. Lots of the teachers spend "I'm in a pretty good positionout here. time talking about places where kids are growing Everybody expects you to do good.Imean, up. Not kids like us, I mean, poor kids. Some of they're pretty shocked when kids like me don't do them are black but not all. Lots of these kids are well, don't go to college, you know. Like all these just as smart as anyone out here. They could be kids who take drugs? That surprises alot ofpeople. doing just as good as anyone of us and getting Everybody reads in the papers about the suburbs, ready to go to college, except they don't have the people getting divorced and all the rich kidson opportunities we have. That's about the only drugs, but at school everybody's expectingus to difference between us. Our fathers have money be smart. I'm not talking about the kids in the but their fathers don't. It's not their fault. It all bottom tracks. I'm talking about kids in the comes down to just where you were born. college "prep" programs. 'Course the honor kids, "That's the funny part, like we were talking there's no way they're going to fail. Butmy about yesterday in social studies. Mr. Hamblin told group's the one that has to fight it out. We'renot us to imagine how our lives would be five, ten the top of the top. We'll get in,you know, but years from now. We wrote these papers for him we're not going to get our first choice. That's why and then talked about them. Everybody was a I'm counting on basketball and baseball.The success. College and jobs, and people making guidance counselor told me that alot of the really money and getting married and taking trips. We good schools like to hide their interest in athletics, really sounded like we were big shots. But then we but they need us. He said ifI get B's I'll probably talked about competition for the best schools and get into an Ivy League school. 'Course, making All the best jobs and everybody started to laugh a

47 47 little, you know. But the interesting thing was how from what I hear you kind of pass through those all that competing came about because we were 'places and come out the other end looking like born pretty well off. Those kids who go to school you did when you went in. And anyway, there's in Boston, lots of them are going to compete with always the money problem. That's the root of all each other the same way as us, but the chances the evil, right? just aren't there. Some of those kids, even the ones "What happens, say, ifI do get in and we who do the best, won't be as well off in the end as can't get the money to let me go? I'd have to keep some of us who do lousy. Boy, if that's the way it working 'cause it isn't going to get any better at worked in sports,trying out fur a team and home. My father's pretty sick already. He'll be making it but still, you know, not making it, I'd be earning a whole lot less by the time I'd be ready to just as angry as those kids probably are." go. So maybe ifI went to college it would only Mitchell Walker lives among those "other make him feel worse. You know what I mean? kids." He is very much aware of the world where Maybe he'd feel pressured to work harder soI Ed Kelly lives. He speaks about it, even follows it could get through, and maybe that extra work as one might follow the progress of a baseball would kill him. Or my mother too. Even if I go to team, but recognizes that the opportunities "out school around hereit ends up costing alot of there," fifteen miles away, will never befall him. money. And you can't work too much, otherwise College is a dream. There is a chance, although it your grades fall down. I've already seen that fluctuates from month to month, and the pos. happen. sibility of the career that might ensue from it "Hell, you'd think my school would help, seems even more vague. The idea of becoming a but they only care about the real smart kids. They doctor stays alive in a mind of this young man, just want to pass the rest of us and not have any but he is careful about telling the dream to certain trouble. If you're a real brain they treat you people. Some laugh at him, others look at him special. But if you're like me, not all that smart, with pride. His father always says, "We'll just have you know, but willing to make it up with alot of to wait and see," as if he were afraid that his work, they don't care as much. They tell us hard response might spoil his son's chances. work's the best thing, but I see the way they treat Mitchellreceiveslittle encouragement at us. You got to be born smart before the teachers school. The two guidance counselors work mainly care about you. Like the coaches, they talk about with the seniors; the athletic coaches tell the boys how we should be scholars ae well as athletes. But that thinking of the future isfine, but nothing they don't ever talk to us about school. All they substitutes for good old everyday work. According worry about is that we might flunk something and to Mitchell, the administration seems concerned be ineligible or something like that. Don't get me only with making certain students behave. And as wrong. Sports are maybe the most important thing for the teachers, they have taken an interest in in my life, but sometimes when you hear those Mitchell,buthe wonders whether they have guys talk, you forget you're in a school. They act picked him out, along with several other students, like we were professionals or something. Going on because he is charming and speaks well. He is not to college, or what we're going to do with our convinced they believe in his intelligence. Few lives, they couldn't care less. Oh yeah, going to take his medical school dream seriously. college might matter to them 'cause if any of us "I can't always be sure what they're saying get famous they get some of the glory. You know, when they tell me to stop worrying about the Mitchell Walker's high school basketball coach was future," he said once. "Maybe it's good advice. If none other than Arnold Kuyper. That's what old you worry too much about the future you won't Kuyper really wants too. get tonight's homework done. But sometimes I "I'lltell you another thing about sports. think they're trying to tell me to forget it.I think You remember I saidI didn't think lots of people what they'd like to say is that the old Walker kid in the school really wanted to help some of us doesn't have the smarts to make it. Igot the non-brains get into college? Well, there are kids smarts all right, the question is, is there a college I like that too. Like, I have friends who don't want can get into?Icould always go to some junior me to study. They think all we should do is mess college or a community college somewhere, but around. They know they aren't going to get much

48 /INEQUALITY IN EDUCATION 43 out of school; they always tell me I'm wasting my college it's like it messes up their plans. When we time trying. They probably think they're doing the get older they'll tell us don't apply to college, but best thing for me, but they're only making it some of us do anyway. We know some older kids tougher. Lot of kids, you know, they stop liking who tell us what we have to do to apply. But now, you if you start doing better in school than they the teachers are happy if we pass. They don't want think you're supposed to be doing. Like, they'll anything for us. They're even worse on the black say, 'ain't we good enough for you no more, man?' kids, which isn't fair, 'cause those kids, you know, They put the choice to you: stick with them, they got it worse than we do. which means be the way they are, or leave. But I "Then on the other end you got all those don't want to leave them. You can't be friends fancy kids going to school in the suburbs. They with alot of people, especially around here. Like, can't fail. There's no way their schools are going to the black kids aren't friendly with us, exceptsome let them fail. If they have to, they'll drag every kid of the ones we play ball with. And the brains, they out there into college even if the kid doesn't want aren't about to let people like me in. So I've got to go. 'I don't want to go. I don't want to go,' the my friends. I have to stay tight with them. I don't kid will be crying. 'You're going, kid!' the school want. to be alone, all by myself. My brothers got will say. 'You're going. What do you think all this their friends and I got mine, only some of mine money we've been spending on you has been for?' have a narrow way of seeing the world. "They have it all right out there. I mean, it's "It puts me in a strange position, though. I no paradise with all those people drinking all the can't leave them, and I can't get myself to believe time, and the kids messing around with drugs that school doesn't matter.I'm afraid to tell 'cause they don't have anything else to do. You people around here when Ilike a subject. Like, I don't hear alot about that. It's always our school thinksocialstudiesis all right. I don't mind that's supposed to be filled with heads and reading the books she gives us. I don't even mind drinkers. But they got their share out there too. preparing for the tests, and they give us alot of They got plenty of sickness out there. But see, it tests too. ButIdon't let anybody know this.I doesn't matter in the long run 'cause the whole make believe everything sucks so the kids my age damn community can help those kids. First off, won't dump on me. There are other kids like me, they got more money than they do around here. If but we're a minority. I don't even tell the teachers you read those figures about how much those Ilike it. They'd think I'm just sucking up to them, communities spend on each student, it's no won- And you couldn't prove too much with my grades. der they got swimming pools and these great big "The way I see it, those kids are just acting gyms, while all we got are buildings that would the way the school wants them to act. If you're probably fall over if people made enough noise. really smart, everyone helpsyou to get smarter. You bang your locker too loud and a wall falls But everyone knows there are lots of kids who over. aren't smart. Just to make sure they giveus tests. "But they got everybody organized to where Then they divide us up into the realsmart, the not they're protecting the students. Not just in school smart and the retarded kids. But those kids don't butallover the town. Say,like, we see a count since they're, like, sick in a way. Then they policeman walking around. You know that guy's work real hard to get the best out of the smart going to bust you, he doesn'tcare that you're a kids, like they were athletes, and forget the really student. You break a law, you're just another dumb kids, which leaves us. We're their problem. criminal to him. What's he care? Heearns more We aren't brains, but we also aren't ready fora than your old man, and he's got superiors telling hospital. So, what can they do? The best thing is him to look for crime and track it down. So there to make sure we don't give them ony trouble, so he is prowling around in the bathrooms, in the they teach us, kind of, not to like school and not girls'bathrooms too,like some dog. Sniffing to want to go to college. Vocational school is what around, you know, like we were running the big they want us to do. The brains go to college and crime syndicates right here in the school. tell we're supposed to learn how to fixcars. And the you, man, I see those guys and I go the other way. girls go to cookihy aii:4 nursing classes, things like All they have to do is pick meup once, even if it that. Everytime someone ijce me wants togo to turns out to be a mistake, and I'm through. I'llgo

43 49 to college with some correspondence course in the here and look at my kid's broken face.' penitentiary. They're looking for us to do some "Everybody goes around telling us about thing, you know what I mean? You ask the black how great America is.I want to believe them all kids. They'll tell you everything you want to know right, but when they start shoving that stuff about about the police and how the administration, people being equal I'd like to cram it down their instead of cutting down the number of cops, keeps throats. No two people in the world are equal. My telling us we need more of them. old man sure isn't equal to any old man in the "Out there, though, in the fancy schools, the suburbs. Even if a guy there was sick like my old police are supposed to help the kids. They're not man, they'd never be equal. That guy would have going around hoping they can arrest somebody. insurance. He'd find a high paying job. Hell, he They're trying to help. They better too, since the could probably find a job that would pay as much people out there have just about hired them to do in one day as both my folks and me and my sister it. Our families don't have any power like those put together earn in a week. They got the schools, families do. One yell and we go to court. Those they got the cops, they got all the good jobs, they kids get away with alot more. Hell, the way they got all the good streets, they got everything that's have it set up, police pick you up and drag you off good. And everything they left behind, that's what to college. They don't mix the students up with we got. You ever wonder how come they don't the criminals. Maybe that's why they don't throw send their kids to our schools? them in jail out there. "What gets me is that they have it so good "Rich kids got their problems. They got there's no way one of their kids is going to end up pressure on them, but they don't know how good here. And they fix it so none of us kids get to go they got it. When one thing falls down they've got there, unless we marry one of them. The way I scie something else. If their family falls apart, they got it, my education is only a ticket out of here. If it's their school. If they do bad in school, they got really good, I'll take my whole family with me. If their friends. If their friends leave theM, like I was not, I'll go by myself. Maybe go find a rich girl. saying before, well, at least the homes are pretty. When I was a kid,I thought the most important Here, when things go they really go. You start out thing was to stay around here and help my folks. bad, you end up bad. If you're family breaks up, Slit when I see what those fancy neighborhoods all you got are lousy schools and no place to go got, I tell myself, / come first. The first thing is to where you can get yourself together. It's like we're o;:t me out of here. I won't end up anywhere if I in jail over here. They don't even have to put us in stay here, but here. And here is nowhere, man. jail; we're already in there. Classrooms are jail Here is nothing. It's just hanging around getting cafeterias are too. And the halls, man, they really ready to get yourself a crumby job and a wife so are jail. You talk too loud and they send you off you can have lots of children so they can go tothe to see the warden. They're looking for us to make same crumby school you went to so they can hang mistakes. The teachers, the principals, the cops, around going nowhere. Then everybody will talk they got their eyes on us. IfI told a cop I was about me like I talk about my old man. Him, me going to college, he'd say, 'Who you trying to kid? and my kids, all those years and nobody's moved You're only a dumb punk.' more than ten blocks. "That's the difference between the kids here "And they go around in our school telling us and the kids in those fancy schools in the country. people are equal. They're right. All of us living They don't have punks out there. All the punks go here are equally bad off. That's what they really here. You never even hear the word punk out ought to be telling us. We're all equally bad off there. They got kids who accidentally misbehave, and the kids out there are equally good off. I guess but no one over there is a punk. You got to be they figure that us being equally bad off and them poor to be a punk. I'll bet even if I go to college, being equally good off makes everybody equal. and then medical school after that, people will still Seems to me they better count again." call me a punk. 'Hey, Doctor Punk, come over

50 /INEQUALITY IN EDUCATION EDUCATION forINSTITUTIONALIZED

CHILDREN

by Theodore E. Lauer

A basic tenet held by our society is thatthe institution, even temporarily, thereis an inter- state has an obligation to provide free public ruption in his extra-institutional schooling. Insti- education for all children, generally beginningat tutionalizationof a child, however, does not age six and continuing until they completesec- relieve the state of its duty to provide education. ondary school. The state has undertaken thisduty Rather, because the very purpose of institution- "to ensure that all...future citizensare given the alization is to afford needed rehabilitative treat- opportunity of acquiring that degree of education ment, it would follow that the state has assumed which will enable them to makean intelligent an added obligation to provide a more particular. decision as to their own capacities or potentialities ized and intense educational experience tomeet and provide the basisfor the knowledge and the individual needs of the confined child.2 discipline needed for active participation inthe The need for education within custodial work andcollectivedecisionsof the com- institutions is further intensified because the child munity."1 Conversely, thestate has undertaken to who is institutionalized is almost invariably educa- compel children to attend school during allor tion-poor. He is likely to have experienced serious most of those years. either by requiring that the difficulties in school which, whether causalor children themselves attend or that theirparents symptomatic of the condition or act which ledto send them. confinement, must be dealt with and if possible A child's socialdeviance may resultin ameliorated or cured. Consequently,itis not temporary or long-term loss of liberty through enough simply to duplicate within institutional confinement in a custodial institution operated by confinement the educational mechanisms whose the state or a political subdivision. While some failure coincided with the causes for the child's children are institutionalized because theylack loss of liberty. More is necessary. proper parental nurture and protection, mostare How well is this need being met? In deter- confined because of acts in violation of lawor mining whether the state is fulfilling its obligation tendencies toward .unruliness orincorrigibility. to educate children in confinement, it is important The legal basis for confinement of children isnot to recognize that there are different purposes for punishment for deviant conduct as is usually the confinement and great disparities in its duration case with adults, but is treatment and rehabil- which directly affect the kind of educational itation to ensure that the child will notrepeat his program needed. deviance and will ultimately becomea functional Immediately. following apprehensionand adult citizen. Through the instrumentality of the prior to a juvenile court hearing to determine juvenile justice system, the child is compelled to delinquency or need for supervision, the child is exchange his iiberty for custodial rehabilitative often held for a relatively short periodin a treatment. detention center or jail. The justification for this When a childis confined in a custodial detention is that it will ensure the child's presence to respond to the charge against him or, more Theodore E. Lauer is Director of the Nation- probably, that the child is seen as a menaceto al Juvenile Law Center, Saint Louis University. himself or others. (Children are commonly sub-

51 jected to preventive detention, although its pro simply is no educational program of any sort. This posed use for adults has been severely criticized on is partly because jail detention is viewed as a constitutional grounds.) After the court hearing temporary measure and because small jails seem- thechild may be committedto a custodial ingly do not have the resources or the constant institution for juveniles, usually denominated a child population to make an educational program state training school. Training school commitment practicable. But principally, inadequate local jail is generally for an indeterminate term. It lasts at conditions are attributable to public and official least several months and may extend through the apathy over the plight of jailed children and to an child's minority. For the most part, children are extrame poverty of constructive thought as to the committed to training schools only for relatively needs of child inmates or how those needs may be serious offenses or for repeated minor offenses. satisfied. People simply do not care. Finally, some children are committed to adult prisons, either directly by the courts or following Specialized Detention Centers transfer from a juvenile training school. Different educational problems are presented by each type Unfortunately, the existence of specialized of confinement institution. detention centers for juveniles does not guarantee adequate educational programs. Here, too, there is Jails and Detention Centers apathy and poverty of thought. The problem of . providing a meaningful or beneficial educational On any given day there are probably about program appears insuperable because children are 20,000 children confined in the nation's jails. and short-term inmates; because it would be difficult detentioncenters.Inspite of the recognized to identify and meet the particularized educational desirability of segregating detained children from needs of those children; because resources are adult offenders, perhaps half of these children are minimal; and because coordination of the deten- confined in county or municipal jails, while the tion center program with that of the school other half are in juvenile detention centers.4 These currently or most recently attended by the child children remain confined for periods ranging from requires commitment and effort. The result is that a few hours to many weeks. For the mostpart, children are warehoused in these facilities to await children are held injails or detention centers court action. The activities for children are largely because of charges of delinquency or need of designed to pass the time easily without permitting supervision, but some are held for other reasons psychological pressures to build to an intolerable including parental neglect. degree. An extremely wide range of conditions exists One threshold problem exists concerning in jails and juvenile detention centers. While some "adequate" education to meet the demonstrated metropolitan areas boast large new facilities de- "needs" of children in detention. While it may be _signed exclusively for the temporary detention of agreed that the compulsory education law applies children, many local jails used to detain children to children in detention and that the assumption were constructed in the nineteenth century and of custody of a child carries with it the obligation were designed only to store prisoners in barred to assure that required education is received, itis cages. Adultjailconditions are typicallyin- questionable whether any greater treatment may humane, but detention centers may also be opera- be imposed upon a child in detention before the juvenile ted in a manner wholly unfit for children.5 Both court has determined whether, under the If there is a jails and juvenile detention centers are grossly code, a need for treatment exists. overused, through confinement of many children presumption of innocencc prior to conviction in without adequate cause and through detention of the adult criminal system, likewise there should be from the need to be children for overlong periods, sometimes up to six a presumption of freedom treated prior to a juvenile court adjudication. months. Prejudgment treatment for the child's specific Few if any facilities for temporary confine- ment of children possess adequate educational "needs" is no more proper than pre-conviction programs. In local jails, children are subjected to punishment of an adult. the same regime as are adult prisoners and there Thus, the ordinary needs of the child qua

52 /INEQUALITY IN EDUCATION 3.w BEST COPY AVAILABLE

child including routine education, recreation, med. ical care, food, shelter and clothing mayindeed should --be met. But the state may go no further until it is judicially determined that the child's acts or condition have brought him within the juvenile code, and that a need for treatment exists. A necessary corollary to the child's right to receive treatment when the need is shown is the right not to have treatment before the need is established. Given this limitation, however, it does not follow that the child in detention shouldnot receive education, or oven that innovative means unknown to the public school system may not be employed to this end. The child who has had difficulty in school probably cannot be success- fully educated if traditional school methodsare employed; these have already failed. Something different is needed. As the National Council on Crime and Delinquency has stated, "The cost of the detention school is justified if a child gains a sense of achievement from one constructive thing learned there, or if his own school learns of one educational areathrough whichhecanbe Photo by Deborah Feingold reached."6 center which iscompetently staffed and ade- Whileithas been recommended that the quately funded can even begin to provide an detention school program be administered by the innovative educational program in which children local public school system,7 there are drawbacks are dealt with as individuals in a fashion responsive to this approach. First, detention education will to theirinterests. Such a program cannot be generally be alow-priority item for a school conducted in a local jail or lock-up, and indeed district, with the result that only a second-rate cannot be conducted in many juvenile detention effort is likely to be made. Second, there must be centers as now operated. some showing that the philosophy and meth- odology of the local school system will not merely Should Policy Change? be transplanted from the classroom, where it has already failed with the detained child, to the A solution might be found by pouring hun- detention center. A better solution would be to dreds of millions of dollars into the construction employ special teachers and other special per- and staffing of a network of juvenile detention sonnel for the detention center. centers across the country. A more rational solu- Although detention center education should tion lies in another direction: drastically reducing not duplicate the localschool program, some both the number of children detained and the measure of coordination is necessary. Otherwise length of time they are held. Initially, detention the child who is released from detention will find might be reduced by as much as seventy-five that his school problems have been exacerbated by percent through a revision of detention policy to his incarceration: not only must he return to a provide for confinement of children only when school which he dreads and which has proved clearly necessary. Firm detention guidelines are inadequate for his needs, but he must return to essential. The vast majority of children can safely find himself weeks or months behind in regular be returned to their homes rather than incar- school work. A firm foundation for future educa- cerated. Further, a strict limit should be imposed tionaldifficultiesisthuslaid, and continued upon the length of time a child can be detained. educational failure is assured. Most juvenile court hearings can be held within a Itisclear that only a juvenile detention week or ten days with no serious inconvenience to

53

4601.-",3 any party. Therefore, no child should be detained The fundamental problem may be the notion of longer than fifteen days under any circumstances. the training school itself: bringing together a large Reducing the number of children held and the number of problem children and dealing with length of time in detention will also facilitate them in relative isolation, separate and apart from adequate educational programs for those children "normal" society and "normal" children. Even if who do require temporary placement in detention all of the children confined in a training school centers. had identical educational needs, identical capaci- ties to absorb education and Identical attitudes Training Schools toward schooling, their group education would be a formidable task. Given the fact that training In theory, the training school should be a school inmates have tremendously disparate prob- total educational experience aimed at imparting lems and needs, the task of providing an adequate basic skills, vocational skills and the understanding educational program for all or even for any one of necessary to live in modern society. While statutes them becomes wellnigh insuperable. The public creatingtrainingschools are notoriously vague schools, dealing with only a portion of the child's concerning the kind and nature of educational life, experience far less than total success with the experience to be afforded, there seems to be homogeneous approach to education which large consensus that the underlying purpose of the numbers seem to dictate; such an approach in training school is educational, to teach "the child training schools would appear almost foreordained something about himself and the world about him, to disaster. and how he may relate himself to that world."8 In view ofthis problem many training The purpose of a child's confinement is to make schools conceive as their objective the "socializa- possible a total "therapeutic milieu"8 in which all tion"or "adjustment" of the child, claiming aspects of the child's life may be organized toward success in the outward appearance of conformity. the rehabilitative goal. They aim at behavior modification through simple Some of the difficulties of providing educa- rewards and punishments, through application of tion within the training school were succinctly token rewards, point systems and similar machina- stated a quarter-century ago by Paul W. Tappan: tions. But even within the training school itis In its formal academic training, difficult to characterize these devicesas other than thesechildren's institutions operate deceitful manipulation, which in turn calls for like under a dual disadvantage: the chil- manipulation from the child-subject.11Outside dren themselves have been badly un- the institution these simple mechanisms do not adjusted and antagonistic in their or- exist, and the conditioned child is thrown back dinary school experiencein a high upon his own impoverished resources, often with proportion of cases and a majority disastrous results. (about three-fourths) are retarded in The fact that the raison d'etre of the training -grade, some of them because of mental school has not been successfully expressed or .defect.In addition the educators in developed results in conflict and uncertainty in the these institution4 are themselves some- school's operation. Loose rhetoric abounds. There what less capable and less well adjust- is much use of such terms as "resocialization," ed on the average than are teachers on "socialization" or "redirecting young lives," evi- the outside. There is the further dif- dencing the conviction that it is better to mouth ficultythatthe children enter and vague generalities than to have nothing to express leave the institutional classes at irreg- at all. The effect of this vacuum is only to make ular intervals through the year. As a way for the traditional conception of the training result of these handicaps, the training school as a penal institution for children in which school rarely succeeds in overcoming repression and punishment are the fundamentally the dislike for education that children ordained aspect of institutional life for personnel have brought with them.1° and inmates alike. One result is that many training But Tappan describes only a part of the schools are organized upon a quasi-military model. difficulties which afflict training schools today. Tappan's statement as to the general inferi-

54/INEQUALITY IN EDUCATION ority of training school educators is borneout by modate to the sy4tem or the failure of the system present-day observations. While training school to meet the needs and interests of the child. If teachers must meet the standards of other teach- anythingisevident concerning the shape and ers, often they do so only minimally, although to content which training school education must perform their function they need qualifications take, it is that it must represent a departure from transcending those of regular school teachers. In the traditional curriculum of the public school. many places they are underpaid as contrasted with Most training schools place work programs, other teachers. The position itselfis not highly which they may also term "vocational education," regarded by the teachers themselves; onlythose high among institutional priorities. A strong argu- marginally qualified or abnormally dedicatedre- ment can be made for encouraging training which main in the training school, while othersescape will enable a child to earn a livelihood and to gain into community school systems as promptly as whatever satisfaction productive employment can possible. Moreover, there seem to bea dispropor- give.Buttraining school work programs and tionate number of training school teachers whoare vocational education are conceptually unsound troubledindividuals and reallynotfittedto and outdated and therefore largely foredoomed to perform the tasks allocated to them. failure.More emphasis teastraditionally been Academic educationisnot always taken placed upon making the training schoolself- seriously by the training schools themselves. Thus, sufficienttherebysavingpublicmoneythan a number of children participate in the school upon the educational or rehabilitative returns from program for only part of the day, or are excused such programs. Thus the work activities of chil- entirely, on the ground that they have the capacity dren intraining schools are largely related to to tolerate formal education only minimallyor not institutional subsistence and many children are at all. I n states where compulsory, school attendance employed for long hours in the kitchen or laundry. extends only to age sixteen, it is not unknown for In many schools the main thrust may still be training schools to permit childrenover sixteen to agricultural, as it has since the founding of training choose not to continue in the academic education schools a century ago. The predominance of agricul- program. Some are actively encouraged not to tural activity can be laid both to the desire to participate. The theory seems to be that sincea produce food for school consumption and,per- child of sixteen in the general population would haps more significant to the nineteenth century not be compelled by law to continue in school, the mind, to the ideal of the rural community where training school should not imposeany greater children can be removed and protected from the requirement.Itis amply clear,however, that deleterious influences of urban life. Thus, rather virtually WI training school inmates suffersevere than prepare the child for his ultimate return to academic deficiency, and that almost invariably city conditions, the training school has exposed further education will benecessary if they are to him to the rudiments of a way of life which has all attain minimum proficiency in reading and other but vanished. basic skills. Lacking this, they will remain educe Agricultural orientation apart, other voca- tional cripples for the duration of their lives. tional training programs suffer from obsolescence While at least one program has been devised and impoverishment. Thus, technical skills are without formal education,12 commonly training taughtusing outmoded equipment; the skills schools have an academic educational curriculum learned may themselves be outmoded. (One recalls patterned after "the same basiccourses normally seeing the shoe machinery used at a midwestern pursued in their community school." Underlying training school, machinery discarded by a shoe this approach is a simplistic rationale: since the factory many years before. The teacher pointed to child has failed in the public schools, what he a more "modern" machine butstated sadly requires is more of the same! The effect isto that because of a broken part it had not been perpetuate the failure. The opportunity for in- functional for over a year.) The picture is a dismal novation is wasted; children are locked into the one and reinforces the feeling that institutional same system which was the situs of their original mediocrity and administrative sloth alone cannot unsuccessful effortan effort renderedunsuccess- account for these conditions, but a deliberate ful either by the failure of the childto accom- effort must be in progress to prevent the children

55 55 from acquiring skills which could aid them to upon children; third, the existence of thewill and escape their otherwise assured futures as unskilled determination, in terms of both philosophical and laborers in the work force. it is as if the state has fiscal commitment, to carry itall out. We may determined that the delinquent or wayward chi very well discover that the training schoolitself is is not to be "rewarded" by affording him the an anachronism and must be abolished. learning which will enable him to become more than a marginal member of society. Prisons Granted that education of children in train ing schools is at bast an arduous task, and that a in spite of the trsitted protections of the high percentage of the children will initially do juvenile justice system, children may fild them- their best to frustrate efforts to educate them, selves imprisoned in adult penal institutions. A nevertheless the taskisinsuperable only if ap child may be prosecuted for and convicted of proachedinthe manner presently employed. crime and sentenced to a prison when the crime Improvement of the system will depend upon charged is one over which the juvenile court has no three factors: first, a clearer understanding of what jurisdictionas is the case in a number of states itisthattraining schools are seeking to ac which deny the juvenile court jurisdiction over complish, which requires a rethinking of "delin- capital offensesor when the juvenile court has quency" and "rehabilitation" and a willingness to waiveditsjurisdiction over the child and has discard present misconceptions; second, develop- certified him for trial in the criminal court as an ment of research capability so that we may know adult. Further, in New York a delinquent child of more about the children training schools are called fifteen may be committed by the Family Court upon to work with, and more about the long and directly to a reformatory in which adults con shortrange effect of training school programs victed of criminal offenses are also con fined.13 In

t

56 /INEQUALITY IN EDUCATION 5G many states children who have been convicted of And the machinery and the technology appliedare no crime may be transferred from training schools not uncommonly decades behind the times. to adult prisons on the ground of incorrigibility or The educational career of the childcom disruptiveness. 4 mitted to prison,ifnot cut short by his own Where a child is directly committed to an truancy, has certainly been abruptly terminated by adult penal institution, he is generally considered the sentence of the criminal court. Hir critical by correctional officials to occupy the same status needs for both academic and vocational education as an adult prisoner. Therefore he is exposed to an are unlikely to be met in most American prisons educational program designed principally for adult today. As observed by a former convict, whileit prisoners, a program whose overall inferiority is may be surprising that the rehabilitative value of generally acknowledged and which is subordinated education has but recently been recognized, it "is to other correctional activities, such as prison even more surprising whenitisrealized that industries. Academic prison education hascome education, whether academic or vocational, is the largely as an afterthought in the administration of only form of rehabilitation goingon in any U.S. American correctionalinstitutions. While some prison."18 advances are being made, the 1967 report of the TaskForce on Corrections of the President's Right to Treatment Commission on Law Enforcement and Administra tion of Justice reported that "in all but a few Is a child who has been transferred froma states, notably California and New York, academic training school to a prison and who hasnever been instructionis provided mainly by inmate teach- convicted of a criminal offense likely to receive ers".16 Unfortunately thereis confusion as to any better educational treatmentin an adult what shape the program of academic education prison than a child who has been directlycom should take. Generalities abound; hard facts are mined following a criminal sentence? While the seemingly scarce. The President's Commission was answer would atfirst seemto be that the unable to come to grips with the problem, and transferred child would fare no better because he, lamely recommended: too, would be considered as an inmate to havea Correctionalinstitutions should up. status similar to that of adult prisoners, some grade educational and vocational train glimmer of hope may be found in either oftwo ing programs, extending them to all sources. inmates who can profit from them. First,becausethejurisprudentialunder- They should experiment with special pinnings of confinement of children franklyrest techniques such as programmed in- upon rehabilitative care and treatment, the child struction.16 may assert his right to treatment whether in a . But if academic prison education is poor, training school or in an adult correctional institu vocational prison education is in most respects an tion since the auspices of his confinementare the utter failure principally because society has re- same. Second, the statutes permitting transfer of sisted the institution of realistic vocational educa- children from training schools to prisonsmay tional programs in prisons. "Prison-made" goods mandate a special program of rehabilitativetreat have been rendered largely unsalable because of ment for children within the adult correctional the fear of adverse competitive effectsupon facility. Thus in the recent decision of 0 --Hv. private enterprise. Nor have we been eager to Frenchlg, the Missouri Court of Appealsheld that educate convicts to any but the most menial and under a statute permitting such transfers and kmpaying tasks, as though training in a skilled providing that transferred children be "dealt with pursuit would constitute a reward rather thana in accordance with a program of treatment and punishment to the offender. The prisoner, whether rehabilitation to be established," itwas necessary child or adult, is almost invariably put toa task to create a new program designed to treat and "thattakesan hourtolearn and a day to rehFbNitate children before any transfer could be master:47 and left at that job for the durationof made. Children could not be "transferred to adult his imprisonment. Prison industriesturn out li- penal institutions tobe held on some undif cense plates, mattresses, shoes, boxes, textiles. ferentiated basis with all regular adult inmates." It

57 should follow that education would he a prime medical examination or care, no recreation, highly re- component of any special program for children. stricted visitation privileges and little or no opportunity to bathe. Juvenile detention centers may be no better, confining children in solitary rooms for extended periods Prospect For Change or subjecting them to sexual attacks. Even nondelinquent children may be so treated. See, e.g., Larry Cole, Our The picture of education of children con- Children'sKeepers, Grossman Publishers, New York, fined to custodial institutions is not a bright one. 1972, pp. 101 -107. Half-hearted lip set Ace is paid to education as a 6.Standards and Guides for the Detention of valuable rehabilitative tool, yet implementation of Children and Youth, National Council on Crime and Delinquency, New York, 3d ed., 1961, p. 64. even this feebly recognized idealis not forth- 7' coming. The existence of isolated innovative pro- Ibid. at 65. grams which have little hope of universal adoption 8.National Conference of Superintendents of Train- only serves to contrast more starkly the tragic ing Schools and Reformatories, Institutional Rehabilita Inc., shortcomings of existing efforts. Before meaning- tion of DelinquentYouth,Delmar Publishers, Albany, New York, 1962, p. 92. ful change can occur there must be a reexamina- 9. tionof the premises upon which institutional Albert E. Treischman et al., The Other 23 Hours, Aldine Publishing Co., Chicago, 1969, pp. 1-49. confinement itselfis based. Outworn,, irrational 10. theories and practices must be discarded and a new Paul W. Tappan,JuvenileDelinquency, McGraw-Hill Book Co., New York, 1949, pp. 466-467. philosophical and theoretical framework created. 11. Only if we can reasonably understand why chil- On balance, token reinforcement seems just so much hogwash. But there is little hard evidence that other dren are incarcerated and can rationally relate this approaches will be any more fruitful no matter how incarceration to some realizable goal will it be glowing or preposterous the claims of their proponents. possibletobeginto prescribe the form and See, e.g., Harry Vorrath, Positive Peer Culture, Michigan content of educational programs for children in Center for Group Studies, Lansing, Michigan, Rev. ed. confinement. Anything less is simply new gloss to 1972; Harold L. Cohen and James Filipczak, A New Learning Environment, Josey-Bass, Inc., San Francisco, further disguise existing chaos. 1971; H. Ashley Weeks, Youthful Offenders at Highflelds, University of Michigan Press, Ann Arbor, 1958. Footnotes 12.H. A. Weeks, Youthful Offenders, pp. 3-4. 13. 1. N.Y. Fam. Ct. Act, Sec 758(b). The constitu- M. Ginsberg, On Justice in Society, Penguin tionality of this section was upheld in United States ex. Books. Baltimore, 1965, p. 120. rel. Murray v. Owens, 465 F 2d 289 (2d Cir. 1972), a 2'Affording the institutionalized child a more decision based upon dubious jurisprudential analysis but particularized, more intense and hence more costly squarely in the mainstream of judicial decisions according education does not appear inconsistent with principles of children diminished standing in the law. social justice. See, e.g., John Rawls, A Theory of Justice, 14.The transfer process is statutory and has been Harvard University Press, Cambridge, Mass., 1971, pp. upheld in some states, see., e.g., Wilson v. Coughlin, 259 100-101. Iowa 1163, 147 N.W.2d 175 (1966) and struck down in 3. Detention may also be an illegal application of others, see, e.g., Boone v. Danforth, 463 S.W.2d 325 (Mo. "shock therapy" premised upon the notion that it will 1971). See also, Sheridan and Freer, Delinquent Children "do a child good" to get a taste of jail conditions. in Penal Institutions, Children's Bureau Publication No. 4Available figures are approximate at best and 415-1964. 15. probably substantially understate the true condition. A Task Force Report; Corrections, United States recent comprehensive study is Sarri, "The Detention of Government Printing Office, Washington D.C., 1967, p. Youth in Jails and Juvenile Detention Facilities," Juvenile 54. Justice, vol. 24, no. 3, November 1973. p.2 which gives 16.The Challenge of Crime in a Free Society, The figures as 7.800 juveniles in )ail on a given day in 1970 Hearst Corp., Avon Edition, New York, 1968,p. 418. and 10,875 juveniles in detention centers on a given day 17. in 1966. The figures do not include facilities such as local H. Jack Griswold et al., An Eye foi an Eye, police iocicups and "drunk tanks" which detain persons Simon & Schuster, Inc., Pocket Books, New York, 1971, for periods of less than forty hours. P. 79. 18'Ibid. at 73. 5.For jail conditions, see, Patterson v. Hopkins, 19' 350 F. Supp 676 (N.D. Miss. 1972). Children in jails are 504 S.W.2d 269, 14 Cr.L. 2346 (Mo, App. often housed with adults in filthy cells and receive no 1973).

58/INEQUALITY IN EDUCATION 3 Notes and Commentary This section ofInequality in Educationfeatures reports on research, litigation, government action, and legislation concerning educationand the law. Readers are invited to suggestor submit material for inclusion in this section

FURTHER FIGURES ON FEDERAL FUNDING Science Research, 1990 M Street, N.W., Washing- FOR INDIAN STUDENTS ton, D.C. 20036 for $4.00 (free to legal services attorneys). Thestaffofthe Legal Action Support Project, a national backup center to the 0E0 Legal Services Program, has assembled social sci ence data on federal funds for Indian education STUDENT RIGHTS which in some respects contradict figures which appeared in "The Renaissance of Indian Educa- tion" by Daniel M. Rosenfelt, Inequality in Educa- COURT RULES ON IMPARTIALITY tion =15, November 1973, pp. 13-22. The report IN STUDENT HEARINGS represents a year-long inquiry into the sources of federal funding of Indian education for theyears Anonymous* v. Winooski School District, C.A. 1968 through 1971. It reveals that in fiscalyear No. 74.86 (D. Vt., April 10, 1974). 1971 about $43.9 million was spent for Indian students inpublic school, or about $209 per In ruling that a student may not be sus- Indian pupil (based on 205,000 pupils). pended from school for an indeterminate period The Legal Action Support Project alsore- without a prior hearing before an impartial deci- ports that the national average per pupil expendi- sion-maker, the Federal District Court in Vermont ture from state and local sources was $795per has disqualified the defendant school district's average daily attendance (or $743 per ADM); the principal and superintendent from trying the average federal contribution was $69 (or $74 per student. The court instead directed the board of ADM). This amount of federal support for Indians school directors of the district to preside at the fallsfar short of "substantial federal _financial hearing. support," (Rosenfelt, p. 131. The plaintiff, a senior in high school, was The Project also challenges the published informed by the principal in March that he would BIA school cost and enrollment statistics cited in no longer be allowed to attend classes on the basis the Rosenfelt article and reports that the true BIA of alleged "implication in a recent 'drug scene."' fiscalyear enrollment count was 49,640 rather The superintendent subsequently informed the thantheirpublished"duplicatedcount"of student's parents that he was recommending to the 52,000.Infiscal year 1971, the BIA actually school board that the student be barred from received S105,540,000 for support of its schools, classes for the remainder of the year. The court or $2,183 per pupil enrolled. When room and issued a preliminary injunction allowing the stu- board costsforboarding pupils are deducted, dent to remain in school pending a hearing. about $1,640 per pupil remained for support of Noting that an impartial tribunal is "a basic basic education in the WA schools, a figure which constituent of minimum due process," the court can be compared to current expenditures from stated: state andlocal sources for support of public While ordinarily the school principal schools ($795). or superintendent of schools is a satis- The full report, "Federal Funding of Indian factory decision-maker in a student Education: A Bureaucratic Enigma" by Susan suspension or expulsion case, on the Smith and Margaret Walker, is available from the particular and somewhat unique facts

Legal Action Support Project, Bureau of Social of this case. . . the official directly

59 involved in gathering facts and making landmark decision establishing the constitutional recommendations cannot always have rights of handicapped children, set out a separate completeobjectivityinevaluating hearing procedure to be followed for disciplinary them. Thus without iinpugning the suspensions, exclusions and transfers. See also, motives or good faith of the principal Betts v. Board of Education, 466 F.2d 629 (C.A. and superintendent involved inthis 7, 1972) and Board of Education v. Scott, C.A. case, we believe the proper course on No. 176.814 (Cir. Ct. of Wayne Cty., Mich., Opin. the facts before us here is to relieve on Counterclaim, Jan. 12, 1972 (Clearinghouse theseofficialsfrom anydecision- No. 7380C).1 making role inview of their prior The previous school district policy allowed a direct involvement with plaintiff's case principal to transfer a student for disciplinary and the strong likelihood that they reasons upon the recommendation of the student's may be witnesses at the hearing. teacher. If the student was reassigned to another Although many due process cases refer to regular classroom within the school, the teacher in the requirement of impartiality, this is one of the that classroom had a right to refuse him or her; if few cases to rule d:sectly on its meaning. [See also, the student was reassigned to another school, that Caldwell v. Cannady, 340 F.Supp. 835 (N.D.Tex. school could likewise refuse to accept. The princi- 1972); Board of Education v.Scott, C.A. No. pal could not return the student to the original 176.814 (Cir. Ct. of Wayne County, Mich., Opin. classroom against the wishes of the teacher with- on Counterclaim, Jan. 12, 1972) (Clearinghouse out the approval of a special committee of three No. 7380C); and 14 Inequality in Education at teachers. 58-59.1 In issuing a preliminary injunction on April The court also noted other elements of due 24, 1973, the federal district court declared: process required for this hearing, including notice TheDefendants haveprimafacie of the specific charges, presentation of evidence denied the named and certain class supporting the charges, right to counsel, right to Plaintiffs of due process of law in cross-examination and written opinion by the contraventionoftheFourteenth school board stating the basis for its decision. Amendment to the United States Con- Plaintiff is representedbyV.Louise stitution by establishing, implementing McCarren, Vermont Legal Aid,Inc., 192 Bank andutilizing a procedure whereby Street, Burlington, Vermont. named and certain class Plaintiffs are excluded from attendance at their The plaintiff's name has been deleted. respectiveregularly assigned public schools without prior notice of the RIGHT TO DUE PROCESS HEARINGS charges against them and opportunity IN DISCIPLINARY TRANSFERS to controvert .such charges at a hear- ing. Jordan v. School District of Erie, Pennsylvania, The first step in the new procedures estab- C.A. No. 34.73 ERIE (W.D.Pa., February 5, 1974) lishes the right, following adequate notice, to an (order and consent decree). informal meeting with the principal and other staff. Student and parent are then to be informed A courtapproved consent decree now guar- of their right to a formal hearing and of the antees students in Erie, Pennsylvania the right to procedures to be followed. The hearing is before a full procedural safeguards whenever it is recom- committee of one administrator and two school mended that they be transferred from one building employees, all from outside the student's school. to another. Although the harm to students caused All parties and their representatives have a right to by such transfers is often as great or greater than present evidence and to confront and cross- the harm resulting from suspensions, this is one of examine witnesses. The parent has the right to the few cases to address the problem. [Mills v. examine the student's school records. Board of Education of the District of Columbia, The student may appeal the decision of the 348 F. Supp. 866, 880-883 (D.D.C. 1972), a first hearing. Notice of the right to appeal shall 60/INEQUALITY IN EDUCATION .0 include notice of the right to legal counsel and The obligations referred to above can information concerning the availability of legal not be discharged by referral of a child aid. The appeal consists of a de novo hearing to another governmental authority or before an impartial hearing examiner from either to a nonpublic school or facility if no the Bureau of Mediation or the American Arbitra- opening in programs provided by such tion Association, to be selected jointly by the other agency or school or facility are school district and the parent and student. available for the child and as a con- At both hearings, a decision to transfer the sequence the child cannot be enrolled student must be supported by substantial evidence but instead must wait on a waiting list of the whole record. If the proposed transfer is for an opening. denied, all reference to the proceedings is to be Home and hospital instruction is not expunged from the student's record. A transcrip- an appropriate long-term educational tion of both hearings shall be made and be arrangementfor any child....Mental available to parent, student and their representa- retardation, however profound, is not tives. A reevaluation, subject to these provisions, is a "physical" condition justifying refer- guaranteed to each student transferred to another ral to home and hospital instruction in building before the adoption of the consent lieu of instruction in school. decree. The provisions are also applicable toany The practice of sending children to student removed from a required class whenever nonpublic schools without full funding thereis no similar required class within the when the public schools are unable to building. provide the child with a program is unlawful. If the state fails to provide full funding in any such case the local CLASSIFICATION board of education is obligated to do so. When the public schools provide or arrange for the education of a child in STATE COURT ORDERS APPROPRIATE apublicinstitution the educational EDUCATIONAL PROGRAMS FOR program must be made available with- RETARDED CHILDREN out charge to the child and his parents or guardians. The state has an obliga- Maryland Association for Retarded Childrenv. tion under Article 59A and Article 23 State of Maryland (Equity No. 77676, decision of the Declaration of Rights to fund filed April 9, 1974). institutional educational programs that insure appropriate education, so that The Maryland Circuit Court for Baltimore there isnodiscriminationagainst County has ruled in Maryland Association for children in the institutions. Retarded Childrenv.State of Maryland that In addition, the Court ordered that all educational Article 59A and Sections 73, 99 and 106D of programs, including state operated residential fa- Article 77 of the Annotated Code of Maryland cilities, must meet accreditation standards to be requires the State and local education authorities promulgated by the State Department of Educa- "to provideafree educationtoallpersons tion. "The standards must be promulgated by between the ages of five and twenty years. and this September1, 1974 and compliance with the includes children with handicaps, particularly men- standards must be effected by September 1, 1975. tally retarded children, regardless of how severely Itisthe primaryobligationofthe Stateof and profoundly retarded they may be." The State Maryland to provide for such funding as may be Court, hearing the case pursuant to the abstention necessary to insure compliance with the appro- order of a three-judge federal court, held that priate standards." Article 77 requires local educational authorities to All parties to the litigation agreed that all determine "that the educational program provided childrencanbe benefitted by some type of for a child is in fact an educational program and program of service, no matter how severely re- that itis in fact an appropriate program for the tarded. In an Explanatory Memorandum of De- child." cision filed April 9, 1974, Judge John E. Raine, Jr.

61 held that the "education" required to be provided ities receiving Federal financial assist- by state law must be broadly defined: "...educe. ance. tion is any plan or structured program admin This additional federal claim should strengthen istered by competent persons that is designed to plaintiffs' position visavis defendant's motion to help individuals achieve their full potential....Every dismiss or abstain, and similar claims in other type of trainingisat least a sub-category of federal suits on behalf of handicapped persons education."Under Marylandlaw,the Mental should also reduce the risk of abstention. Retardation Administration must assume responsi- Section 504 of Title V of the Act (cited in bility for appropriate educational programs where theamendedjurisdictionalstatementinthe the retardationisso severethatthereis no NCARC complaint)specificallyprecludes dia program availablein the public school system. crimination because of handicap. Noting that the "chief reason why the State's Sec. 504. No otherwise qualified hand- responsibility to the mentally retarded had not icappedindividualin theUnited been properly discharged is inadequate funding," States, as defined in section 7(6), shall, Judge Raine concluded: "The main thrust of the solely by reason of his handicap, be decree will be to place joint responsibility on the excluded from the participation in, be Mental Retardation Administration and the State denied the benefits of, or be subjected Department of Education for the education of the to discrimination under any program mentally retarded, and to declare that the State of or activity receiving Federal financial Maryland has the obligation to provide the neces assistance. sary funding." Section 7(6) defines "handicapped indivi Plaintiffrepresented by Robert Plotkin, dual ": NLADA National Law Office, 1601 Connecticut The term "handicapped individual" Avenue, N.W., Washington, D.C. 20009; J. Snow- means any individual who (A) has a den Stanley, Jr., 10 Light Street (17th Floor), physical or mental disability which for Baltimore, Maryland 21202; Albert S. Barr, III, 25 such individual constitutes or results in South Charles Street, Baltimore, Maryland 21202; a substantial handicap to employment and Ralph J. Moore, Jr., 734 Fifteenth Street, and (B) can reasonably be expected to N.W., Washington, D.C. 20005. benefit in terms of employability from vocational rehabilitation services pro- NCARC ALLEGES VIOLATION OF vided pursuant to Titles I and III of REHABILITATION ACT OF 1973 this Act. The Rehabilitation Act is described as: "An Act to North Carolina Association for Retarded Children replacethe VocationalRehabilitation Act, tc v. State of North Carolina,C.A.No. 3050 extend and revise the authorization of w ants tc (E.D.N.C., filed May 19, 1972) (NCARC). States for vocational rehabilitation services, wit, special emphasis on services to those witn the mosi Plaintiffs' motion to amend their complaint severe handicaps, to expand special Federal re- in NCARC was granted on March 19, 1974. Thus sponsibilities and research and training program the complaint challenging the exclusion of men- with respect to handicapped individuals, to estab tally retarded children from public education now lishspecial responsibilities in the Secretary o includes the following count: Health, Education, and Welfare for coordinatior That the defendants are discriminating ofallprograms with respectto handicappec against retarded children in violation individualswithinthe Department of Health of P.L. 93-112 of the 93rd Congress Education, and Welfare, and for other purposes. H.R. 8070 effective September 26, For complete provisions of this Act, see, 1 U.S. 1973 cited as the "Rehabilitation Act Cong. & Admin. News 409 (1973). of 1973" by excluding and denying Precedent under Section 601 of the Civi retarded children, including the plain- Rights Act of 1964 should enable handicappec tiffs, because of their handicaps, from individuals subjected to discrimination by public_ participation under programs or activ schools and other recipients of federal assistance

62 /INEQUALITY IN EDUCATION to enforce non-discrimination under the Rehabil- ignored by the school district in the process of itation Act in federal courts. Cf. Lau v. Nichols, drafting the 1973-74 application. Without having U.S. ,42 L. W. 4165 (1/21/74); informed the CCEAC or any other parents, and Lemon v. Bossier Parish School Board, 240 F. prior to development of programs and budgets at Supp. 709 (D.C. La 1965), aff'd 370 F.2d 847 (5 individual school sites, district officials construct- Cir. 1967), cert. denied 388 U.S. 911. ed an application relegating themselves with sole The United States Government has been authority for submitting a TitleIproposal. Al- allowed to intervene as additional plaintiffsin though they had been informed of this situation, NCARC and discovery has been extended through the state education off icals approved the programs August 1974. The three judge court has informally proposed by Los Angeles. deferred ruling on the motion to dismiss or abstain Remedies. If plaintiffs prevail at trial, the pending a full hearing on the merits which has question of remedies will arise. It is plaintiffs' been scheduled for early fall, 1974. Plaintiffs are position that the injury has been irrevocably done. represented by Blanchard, Tucker, Denson & Itis now impossible to obtain parental involve- Cline, P. 0. Drawer 30, Raleigh, N.C. 27602. ment in development of programs for a school year that will be near its end when trialis completed. Plaintiffs firmly believe that parental TITLE I influenceisof great value to the design of beneficial educational programs and that students have been deprived of that benefit for a full year. NEW REMEDY FOR TITLE I Some students will be in nonTitle I schools next VIOLATION SOUGHT year, further depriving them of Title I compensa- tory programs. Beaudreau .;,;?lion,U.S. Dist. Ct., Cen What "remedy" can retrieve or compensate tralDistrictofCalif.,CivilAction File No. for the lost benefits? To attempt to recoup or 73-1264ED (filed 6/6/73). createforthe future what neverpreviously existed,Ianticipate asking for imposition of a Beaudreau v. Johnston is a Title I case being trust upon a sum of money equal to the amount prosecuted in federal court in Los Angeles. It expended by the school district during 1973-74 involves an aspect of Title I not reached in the on Title I programs. Nicholson v. Pittenger litigation (see, Inequality in Inothercases,oras an alternativein Education #15, November 1973, pp. 86.87), i.e., Beaudreau, one might be able successfully to argue parental participation for the Nicholson remedy (power to "examine and This action is predicated on the failure and review," combined with authority to modify and refusal of the Los Angeles Unified School District, eventerminate programs), orcourtsupervised its Superintendent of Schools (Johnston) and its monitoringpowersin a citizens'groupfor Title IDirector to accord to the federally man- specified period of time (whereby the group will dated Parent Council (in Los Angeles referred to as be able to obtain quick judicial review of alleged the Citizens' Compensatory Education Advisory violations with the threat and actual use of the Committee (CCEACI I any opportunity to partici court's contempt powers) or any of a variety of pation in formulating the district's 1973-74 Title imaginable variations. Iapplication. Named as defendants along with localschoolofficials are the California State The Trust Theory DepartmentofEducation, thestateschools' Superintendent Wilson Riles and the state's com To impress a trust is predicated on tradition- pensatory education director who are charged with al principles of equity and proceeds as follows. The knowingly approving agrant application that monies granted for TitleIhave been illegally failed to satisfy federal requirements for Title I expended. The illegality consists of the application monies. for and expenditure of the grant by persons who The CCEAC and all target school parent knew beforehand that they had not satisfied the advisory councils were completely and arrogantly conditions for receipt of such money and had

b3 63 actively desired to and did foreclose adherence to constantly arising, and new kinds of wrongs are con- those conditions, thereby violating rights of others stantly committed.' . . . Equity need not wait upon (students and parents). precedent 'but will assert itself in those situations where rightandjusticewould bedefeatedbutforits Fraud, false pretense or maladministration intervention.'" In the Matter of the Estate of Vargas of a trust or other refusal to properly execute a (1874), Cal. App. 3d ....----, .._._.(Calif. Ct. of trust is ground in equity for imposition of a trust App., 3d App. Dist.). on an amount equivalent to the trust improperly Ernest L. Aubry isLegal Counsel, the Education administered, or on a sum equal to the funds Finance and Governance Reform Project. fraudulently acquired. The conditions of defend. ants in the Beaudreau case fits into one or all of such categories of acts sufficient to give rise to a BILINGUAL trust. Such trust fund (to be derived from general school district funds or the state's General Fund) QUALITY BILINGUAL EDUCATION would then have to be expended in an ensuing THROUGH LAU? school year at the schools that qualified for Title I The Supreme Court's decisionin Lau v. services in the year with respect to which the Nichols, U S 94 S. Ct 786 (19741 violations occurred (after, of course, proper mech- has been widely greeted, by advocates of bilingual- anisms for parental involvement have been estab- bicultural education as a landmark in the effort to lished and implemented). secure equal educational opportunity for non- Direct and total divestiture of school district English speaking minority children. However, as administration is the most preferred remedy. If indicated in the note on Lau in Inequality in school districts, after being accorded ample oppor- Education, #16, March 1974 (p.58), the Court's tunityfor proper administration of funds en- opinion was narrowly drawn. It left unanswered trusted to them, nevertheless have demonstrated some practical questions which are essential if inability or unwillingness to administer in com- quality bilingual-bicultural education is to become pliance with statutory and regulatory require- a reality. ments, reason impelsdirectandimmediate The Lau decision rested on section 601 and divestiture of authority over all aspects of Title I section 602 of the Civil Rights Act of 1964 and grant planning and implementation and transfer of the HEW regulations promulgated under that such authority for all purposes to a qualified, section. Thus, on the narrowest construction, the independent administering body.1 decision stands simply for the proposition that the Rather than merely granting "examine and HEW guidelines involved were "entitled to great review" powers, this remedy creates an entirely weight" as the consistent and reasonable interpre- new authority for development and administration tation of the department charged with adminis- ofprograms,completelysevering the school tering Title VI. And while Title VI does provide a district from all control over Title I operations. weapon for plaintiff-litigants, the limitations on Ernest L. Aubry. relief through the statute could have been avoided had the Court ruled on the Equal Protection claim. IPrecedent for such actionisnot lacking in Administration and interpretation of the analogous area. E.g.,the California Supreme Court. after legislative and executive inability to agree upon a Civil Rights Act of 1964 has, from its inception, constitutionally valid legislative reapportionment plan, been subject to the bureaucratic and political ordered the matter placed in the hands of a panel of winds which blow at HEW. Actual enforcement of "masters** and approved as its own the masters' reappor- Title VI through hearings and cut-offs has been the tionment scheme. Legislature v. Reinecke, (1 973) 10 Cal. exception, negotiation seemingly endless. See, for 3d 396. (1972) 7 Cal. 3d 92, (1972) 6 Cal. 3d 595. Courts possess broad equitable powers to fashion instance, Adams v. Richardson, 480 F .2d 1159 remedies appropriate tothe circumstances. "'Equity (D.C. Cir. 1973). Lau v. Nichols does make clear at or chancery law has its origin in the necessity for exceptions the Supreme Court level that individual plaintiffs to the application of rules of law in those cases where the may sue to enforce the provisions of Title VI law. . would create injustice in the affairs of men.' without waiting for HEW to act. On the other . . . Equity acts 'in order to meet the requirements of every case, and to satisfy the needs of progressive social hand, to the extent that the definition of discrim- condition, in which new primary rights and duties are ination for Title VI purposes is whatever HEW says

64 /INEQUALITY IN EDUCATION 6,1 itis, then one must always be looking over its discrimination which are as yet uncovered by shoulder to make certain that standards are not specific HEW guidelines. Support for this reading changing. In view of its strong support for the can be found in the separate opinion of Mr. Justice regulations involved in Lau (the United States Stewart, concurring in the result, who views the advanced the Title VI argument in the Supreme 1970 guidelines as central to a finding of discrim- Court), it seems very unlikely that HEW couldor ination. would backtrack on the position that school Beyond the question of what kinds of districts must "take affirmative steps to rectify discriminatory activity are reached by Title VI lies [the) language deficiency," 35 Fed. Reg. 11595 the harderissue ofrelief. Title VI prohibits (1970). However, lawyers who seek to apply Title discrimination in federally assisted programs. It Vi to new situations, extending the current inter does not, of course, require a local school district pretations of the regulations, or who desirea to participate in these programs. Some districts, friendly court appearance by HEWmay be disap- particularly small rural districts which have a large pointed by the difficulty of obtaining swift and number of non-English speaking children and progressive decision-making by the agency. receive a small amount of federal funds, may One reading of Lau may provide help in decide (on cost or ideological grounds) to forego dealing with some aspects of this problem. The federal funds tether thaninstitute a language HEW regulations upheld by the Court were of two program. Since the most likely source of federal varieties: broadly worded regulations which ampli- money in such districts is the Elementary and fied the ban on discrimination in the use of federal Secondary Education Act's Title I or Title I Migrant funds found inTitle VI, and an interpretive programs, the effect of a decision to give up guideline specifically requiring affirmative steps to federal funding would be to deprive poor children correct languagedeficienciesofnon-English of whatever meager benefits they are already speaking students. The Court first quoted from the getting from these programs. A second possibility moregeneral languageof 45 C.F.R.sec. is that such districts will simply rewrite their Title 80.3(b)(1), 80.5(b) and 80.3(b)(2). For instance, Iapplications to make correction of language sec. 80.3(b)(1) says that recipients of federal aid problems a goal of their TitleIprograms. This may not "restrict an individual in any way in the would raise the critical and difficult question of enjoyment of any advantage or privilege enjoyed the quality of programs required by Lau. by others receiving any service, financial aid,or In larger districts (such as the San Francisco other benefit under the program," normay it district), the threat of a loss of federal funds is "utilizecriteriaor methods of administration likely to be a greater inducement for the initiation which have the effect of subjecting individuals to of programs. Even here one should be careful to discrimination," 80.3(b)(2). The Court concluded argue that poor and minority students are not the that it " . . . seems obvious that the Chinese only ones to suffer the loss of federal funds when speaking minority receives less benefits than the a school district is found to be practicing discrim- English-speakingmajorityfromrespondents' ination in its school program. In Board of Public school system which denies them a meaningful Instruction of Taylor County, Florida v. Finch, opportunity toparticipatein the educational 414 F.2d 1068 (5th Cir. 1969), the Court seemed programallearmarksofthediscrimination to limit the cut-off power of HEW to specific banned by the Regulations." The court then federal grants infected with prohibited discrimina describes the 1970 HEW guidelines which specifi- tion rather than to all federal funds received by cally require affirmative language programs, 35 Fed. the offending school district. Although the issue of Reg. 11595. The opinion can be read as applying which federal funds may be cut-off was never the broad anti-discrimination language of sec. 80.3 presented in Lau, it would seem that the exclusion ff, directly to the fact situation ofa large number of non-English speaking children from basic educa- of non-English speaking children being function- tional benefits must necessarily limit the ability of ally excluded from educational benefits. On this such children to participate in all phases of public reading the more specific 1970 clarifying guideline school lifein their district. The Fifth Circuit in material would not be essential to the decision, and Taylor County did indicate that "No say that a thusitmay be possible topressclaims of program in a school is free from discrimination

65 because everyone in the school is at libertyto is able to write a program description in suitable partake of its benefits may or may not be a educational jargon and obtain the services ofsome tenable position," supra, 1079. The burden should "educators" who will testify that this isa bona be on school districts to show that thediscrimina- fide program to help non-English speaking chil- tion found in one federal program could have no dren. It is not certain that such aprogram would effect on the participation of minoritystudents in fall short of the Lau requirements and it is highly other federally assisted programs. likely that most judges will not wantto rule on The problem of relief is not confinedto the what constitutes the best method of teaching cutoff issue. Hopefully most school districtswill non-English speaking children. Indeed the question comply with Lau rather than lose federal funding. of teaching methodology is one whichcourts have The realquestion is what kinds of language always sought to avoid. Thus advocates of bilin- programs willt. e required under Lau. Unfortu- gual-bicultural education may want to havea firm nately the decisionitselfis of little help. The idea as to what kinds of programs theycan secure Court specifically eschews requiringany particular from a local district before theymove forward and type of program, stating that "(pI etitioner asks demand relief under Lau. (It is possible, of only that the Board of Education be directed course, to that HEW may issue further interpretative guide- apply its expertise to the problem and rectify the lines which specifically require teaching of all situation."For many minority studentsthe courses in the child's home language. Interested application of such "expertise" will yield programs persons might do well to write the Office for Civil which have little to do with quality bilingual Rights and urge the adoption ofstrong regulations bicultural education. Since decades of discrimina- on this question.) tion (including failure to provide language instruc- Finally, Lau may provide some direction for tion) have resulted in a disproportionately low other kinds of education cases in itsuse of state number of availableminorityteachers, many education statutes and policies as relevantto a districts will not be ina position to institute finding of unequal treatment. The Court reviewed meaningful programs. Furthermore,unrealistic cer- the California statutes which mandated proficien- tification qualifications alsooperate to exclude cy in English as state policy and concluded that: potential minority teachers. The result, ifdistricts "Under these stateimposed standards there isno are to rely on their existing teaching staffs to equality of treatment merely by providingstu- provide special languageprograms, may be a giant dents With the same facilities, textbooks, teachers, hoax on non-English speaking children.From the and curriculum; for students who do not under- lawyer's perspective, however, that hoaxmay be stand English are effectively foreclosed fromany virtually unassailable in court. meaningful education." Undoubtedly otheracts of For example, supposea district adopts a discrimination may be cast in terms of effective program entitled "Language Difficulty Correction foreclosure from the purposes of the state's Program" which ,centerson a few of its Anglo education statutes and policies and use of such teachers receiving some extra trainingat a local state materials may be helpful in obtaiiing relief teachers' r.:ollege. Suppose further that thedistrict under Title VI.

66 /INEQUALITY IN EDUCATION 6)