Supreme Court has good news for CTA, CFT

supreme-courtA recent U.S. Supreme Court hearing on allegations of racial discrimination in Texas public housing programs may have major implications for Vergara vs. California, the landmark education lawsuit that’s now under appeal after a June 2014 trial-court ruling that created a national shock wave.

In Vergara, Los Angeles Superior Court Judge Rolf Treu cited gaps in test scores between minority students and white students in California and evidence that minority schools were far more likely to have the worst teachers in concluding that three state laws protecting teachers’ jobs and prerogatives were unconstitutional violations of student rights.

Treu likened the Vergara case to Brown vs. Board of Education, the famous 1954 Supreme Court case in which justices held Kansas’ “separate but equal” public schools for whites and blacks were unconstitutional.

But the Kansas case involved a state whose education policies resulted in white schools having more money and resources than black schools. In Vergara, while there are stark differences in test scores between schools with mostly Latino and African-American students and schools with mostly white and Asian-American students, these schools receive similar funding from the state under the ADA (average daily attendance) formula. And while the worst teachers congregate at minority schools because of official rules and unofficial practices rewarding veteran teachers with clean records, it’s difficult to contend the state laws that allow this to happen were crafted with a racial animus.

However, some liberal legal experts have long made the case that showing laws have a “disparate impact” on minorities through statistics and real-world effects should be enough to invalidate them on equal protection grounds. This is how the U.S. Equal Employment Office defines the term:

Disparate impact refers to policies, practices, rules, or other systems that appear to be neutral, but result in a disproportionate impact on protected groups. Disparate treatment is intentional. For example, testing a particular skill of African Americans only is disparate treatment.

The Texas case involving allegations of housing discrimination against minorities that was heard by the U.S. Supreme Court on Jan. 24 was the first time that justices have taken a case in which lower-level courts had taken the “disparate impact” theory into serious consideration in their rulings.

Scalia: ‘No, no, no, no,’ numbers don’t confirm bias

The Overlawyered blog’s and Forbes magazine’s coverage of oral arguments in the case should have the California Teachers Association and the California Federation of Teachers doing handstands. The Supreme Court’s conservative majority lacerated attorneys making the “disparate impact” argument holding that the state of Texas’ policies were unconstitutional. Justice Antonin Scalia said these attorneys …

... conflated racial disparities, which can happen for all sorts of reasons, with deliberate racial discrimination, which is what racists do … .

“No, no, no, no,” Scalia said. “Racial disparity is not racial discrimination. The fact that the NFL is largely black players is not discrimination. Discrimination requires intentionally excluding people of a certain race.”

During the questioning … the court’s conservatives got to enunciate conservative concerns about the spreading use of disparate impact. … the Supreme Court has previously outlawed explicitly racial solutions to disparities, such as rigid quotas …

The analogies between Texas public housing laws and California education laws are not precise. But if Scalia’s framing of what constitutes unconstitutional racial discrimination — conscious, intentional, consequential bias in the crafting of a law — holds for a majority of the high court, then the California education status quo is likely to survive the Vergara case.

Justices eager to rebuke Obama administration?

One housing-law expert even thinks the Supreme Court’s conservative majority is spoiling to get this view explicitly stated in the Texas case so as to rebuke an Obama administration which has gone overboard in pushing “disparate impact” litigation.

The Court has wanted to examine this issue, as evidenced by accepting cert three times. It has repeatedly said that it only wanted to look at whether disparate impact applies under the Fair Housing Act and not what standard would apply if it does exist, even though there are many circuit court decisions using disparate impact, and they have used conflicting standards. Typically, the Court would want to decide an issue that is in conflict between the circuits, especially here, where HUD has already tried to resolve the conflicts with a rule. The Court’s refusal to consider a standard suggests that the majority of the justices already know disparate impact will no longer apply under the Fair Housing Act.  …

In some disparate impact cases, the theory has worked effectively to lessen racial discrimination and the perpetuation of illegal segregation. However, the substantial increase in the use of the theory … has caused the theory to be attacked and probably struck down. The takeaway is one of the pendulum having swung too far one way and now swinging back to the middle … .

That’s from Mike Skojec, partner at the national law firm of Ballard Spahr.

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  1. Dawn Urbanek
    Dawn Urbanek 14 February, 2015, 07:36

    “Discrimination requires intentionally excluding people of a certain race.”

    If you want to affect the “disparate impact” in education – the issue that needs to be reviewed by the Supreme Court is the Constitutionality of California’s new education funding law.

    I would like to see a case brought in Federal Court that challenges the LCFF law on the grounds that it violates the Equal Protection Clause of the 14th Amendment to the US COnstitution.

    The stated goal of the Local Control Funding Formula is to provide a base level of funding that will provide every student with an adequate education, and then provide additional funding to students who have high needs such as ELL and socioeconomically disadvantaged- the system fails to achieve that stated goal.

    The Base Grant is set intentionally low which, by design intentionally deprives every student that happens to live in a wealthy suburban school District of an adequate education irrespective of an individual students wealth, race or ethnicity.

    The amount of money that the law distributes to an individual District is based on the wealth of the District’s population and the ethnicity and socioeconomic status of its student population. All suspect classifications requiring strict Judicial scrutiny.

    The landmark Supreme Court Case San Antonio Independent School District v. Rodriquez, defined when it would be appropriate for a Federal Court to review an individual State’s Education Funding System to determine the constitutionality of that system.

    1) In Rodriguez the Court specifically stated a law would be determined to Discriminate on the basis of wealth if all students who, irrespective of their personal incomes, received inadequate funding simply because of where they lived.

    2) A Federal Court has proper jurisdiction to review an individual State’s Education funding laws in cases involving laws that interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution.

    3) A Federal Court has proper jurisdiction to review an individual State’s Education funding laws to ensure that the law bears a rational relationship to a legitimate State Purpose.

    The stated goal of the Local Control Funding Formula is to provide a base level of funding for every student (Base Grant) and then to provide additional funding to students who have high needs such as ELL and socioeconomically disadvantaged (Supplemental Grant and Concentration Grant). However the law does not achieve that result at all. The result is per pupil funding that varies from a low of $6,244 per student to a high of $177,829 per student. The LCFF intentionally underfunds wealthy suburban school districts which in effect deprives any student who happens to live in such a District of an adequate education irrespective of that students personal wealth or income.

    Every student in the Capistrano Unified School District is being deprived of their Constitutional right to a basic education simply because they happen to live in a wealthy area.

    That is Discrimination as a matter of Law

    The State would need to raise the Base Grant to an amount that would provide enough funding to provide a minimum education to every student- not just the poor and ELL in poor districts with high concentrations of ELL

    For greater detail see:

    For damages resulting from this Discrimination

    The State of California is intentionally stealing $200 million dollars per year from the students in CUSD and using that money to create new entitlement programs and build High Speed Rail.

    The California Constitution requires the State to spend money on a Free and Equal K- 12 Public Education and a State Militia. Money CANNOT be spent on anything else until EVRY student receives a basic education.

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Chris Reed

Chris Reed

Chris Reed is a regular contributor to Cal Watchdog. Reed is an editorial writer for U-T San Diego. Before joining the U-T in July 2005, he was the opinion-page columns editor and wrote the featured weekly Unspin column for The Orange County Register. Reed was on the national board of the Association of Opinion Page Editors from 2003-2005. From 2000 to 2005, Reed made more than 100 appearances as a featured news analyst on Los Angeles-area National Public Radio affiliate KPCC-FM. From 1990 to 1998, Reed was an editor, metro columnist and film critic at the Inland Valley Daily Bulletin in Ontario. Reed has a political science degree from the University of Hawaii (Hilo campus), where he edited the student newspaper, the Vulcan News, his senior year. He is on Twitter: @chrisreed99.

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