Education Week - May 7, 2014 - 30

Affirmative-Action Ruling May Have Modest K-12 Impact
By Mark Walsh
The U.S. Supreme Court's highly
anticipated decision upholding a
Michigan ballot initiative that bars
race-based preferences in admissions
at the state's universities may
have only a modest impact on K-12
schools, several legal experts say.
The April 22 ruling was one more
indication, however, that a majority
of the justices are, at best, impatient
with the continuing ways in which
educational institutions use race in
student selection.
"Whether this case ends up being
a big deal or not depends on how
state legislatures react," said James
E. Ryan, the dean of the Harvard
Graduate School of Education and a
scholar on education law. "If you keep
putting the pieces together, it does
seem that from the court's perspective,
we're on the slow path to eliminating
race-based affirmative action."
Fractured Court
The Supreme Court ruled 6-2 in
Schuette v. Coalition to Defend Affirmative
Action (Case No. 12-682) to uphold
the 2006 ballot measure known
as Proposal 2. The Michigan measure
also bars racial preferences in K-12
public schools and other areas of state
government, but the case before the
high court concerned only the prohibition
of such preferences in college
admissions.
1/2 col V.
The court was deeply fractured,
though, and no opinion commanded
a majority.
"This case is not about how the debate
about racial preferences should
be resolved," Justice Anthony M.
Kennedy said in a plurality opinion
that was joined by Chief Justice
John G. Roberts Jr. and Justice
Samuel A. Alito Jr. "It is about who
may resolve it. There is no authority
in the Constitution of the United
States or in this court's precedents
for the judiciary to set aside Michigan
laws that commit this policy determination
to the voters."
Justices Antonin Scalia, Clarence
Thomas, and Stephen G. Breyer wrote
or joined opinions concurring in the
judgment.
Strong Dissent
Justice Sonia Sotomayor wrote a
strong dissent that was joined by Justice
Ruth Bader Ginsburg, parts of
which Justice Sotomayor read from
the bench.
"Short of amending the state constitution,
a Herculean task, racial minorities
in Michigan are deprived of even
an opportunity to convince Michigan's
public colleges and universities to consider
race in their admissions plans
when other attempts to achieve racial
diversity have proved unworkable,
and those institutions are unnecessarily
hobbled in their pursuit of a
diverse student body," she said.
Justice Elena Kagan did not participate
in the case, presumably because
she had worked on it while serving as
U.S. solicitor general.
The full U.S. Court of Appeals for
the 6th Circuit, in Cincinnati, had
said in an 8-7 ruling in 2012 that the
Michigan measure violated the 14th
Amendment equal-protection rights
of racial minorities in the state by
making it harder for them to achieve
a political goal, namely, the adoption of
a race-conscious admissions policy by
the state board of regents.
The 6th Circuit court's ruling was
based on a legal theory known as the
"political restructuring" doctrine. The
appellate-court majority said Michigan's
Proposal 2 violated the equalprotection
clause as interpreted by
two Supreme Court decisions about
ballot initiatives. In Hunter v. Erickson,
the high court in 1969 invalidated
an Akron, Ohio, ballot measure that
had overturned a local fair-housing
ordinance. In Washington v. Seattle
School District No. 1, the court in 1982
struck down a referendum that barred
busing for school desegregation.
The appeals court said race-conscious
admissions policies mainly
benefit racial minorities. It said that
Proposal 2 brought about a significant
change in the ordinary political
process and that it was an unconstitutional
racial classification.
In his plurality opinion for the Supreme
Court, Justice Kennedy said
Michigan voters "acted in concert and
statewide to seek consensus and adopt
a policy on a difficult subject against a
historical background of race in America
that has been a source of tragedy
and persisting injustice."
Justice Scalia said he would go further
than the plurality by overruling
Washington v. Seattle School District
No. 1 and Hunter v. Erickson.
Justice Breyer said the SeattleHunter
political-process doctrine did
not easily fit the Michigan situation,
because university boards had delegated
authority to faculty committees
to decide whether to have raceconscious
admissions policies.
Proposal 2 permissibly "took decisionmaking
authority away from
"
Whether this case ends
up being a big deal or
not depends on how
state legislatures
react."
JAMES E. RYAN
Harvard Graduate School of Education
these unelected actors and placed it in
the hands of the voters," he said.
Meanwhile, in her dissent, Justice
Sotomayor delivered a pointed answer
to Chief Justice Roberts' well-known
statement from the 2007 case of Parents
Involved in Community Schools v.
Seattle School District.
In that case, in which the court
sharply limited the ways school districts
could voluntarily take race
into account in assigning students
to schools, the chief justice had said:
"The way to stop discrimination on the
basis of race is to stop discriminating
on the basis of race."
Justice Sotomayor, who was not on
the court in 2007, said this in her dissent
in the most recent case: "The way
to stop discrimination on the basis of
race is to speak openly and candidly
on the subject of race, and to apply the
Constitution with eyes open to the unfortunate
effects of centuries of racial
discrimination."
Varied Reactions
Kristi L. Bowman, a law professor
at Michigan State University in
East Lansing and an expert on education
law, said the decision's implications
for the larger debate on the
use of race in education are tenuous.
"We don't read this case and know
how it's going to apply to K-12
schools, and that is made even more
complicated by how fractured the
decision is," she said.
Edward Blum, the founder and
director of the Project on Fair Representation,
a Washington organization
that is challenging race-based
government action in various forms,
said that while the Schuette decision
was complex and not directly about
racial preferences, "it dramatically
reinvigorated the debate that the
nation is having about the fairness
and constitutionality of race-based
affirmation action."
Mr. Blum's group is behind the
challenge to race preferences in admissions
at the University of Texas
at Austin, which is pending before
a federal appeals court after the
Supreme Court last year ordered
greater scrutiny of the university's
program.
And Mr. Blum is actively seeking
litigants who could challenge the
use of race in admissions at Harvard
University, the University of North
Carolina at Chapel Hill, and the University
of Wisconsin-Madison.
A GUIDE TO PD
RESOURCES FOR
YOUR PROFESSIONAL
LEARNING
TOPICS INCLUDE:
Common Core
Assessment
Classroom Management
STEM
+
+
+
+
+
+
Special Education
and more!
pddirectory.
edweek.org
CALENDAR OF EVENTS
& PROFESSIONAL DEVELOPMENT DIRECTORY
SPRING 2014
Education WEEk
CUL TIV A TIN G
leadership
State-Level Tensions Beset Tests Tied to Common Core
CONTINUED FROM PAGE 27
like in terms of format and content
and alignment and quality," Mr. Polikoff
said.
Process and a Pawn
In South Carolina, Barry Bolen, the
chairman of the state school board,
argued that he would be satisfied
with dropping the Smarter Balanced
tests if the state could keep the common
core.
In early April, the state board and
Mr. Zais engaged in a tussle over the
standards.
Mr. Zais' department told school
districts April 3 to halt field-testing
on the common-core-aligned assessments,
only to have the board reaffirm
its commitment to the tests in
an April 9 vote.
Saying that the state should
enter a competitive marketplace for
common-core tests, Mr. Zais then
announced April 14 he was unilaterally
withdrawing the state from the
Smarter Balanced consortium to seek
a new test, an action that Mr. Bolen
has contested.
Smarter Balanced tests became a
30 | EDUCATION WEEK | May 7, 2014 | www.edweek.org
pawn in a fight led by common-core
opponents like Mr. Zais, a Republican,
and gop state lawmakers responding
to political pressure from
tea party activists, Mr. Bolen argued.
The fight itself, however, left teachers
and schools
up in the air
about which
direction their
state would
head, he said,
without opponents
to
Smarter Balanced
presenting
distinct
alternatives.
"This isn't
MICK ZAIS,
South Carolina
schools' chief,
favors testing
flexibility.
really about
the Smarter
Balanced. This
is about the
process and the tactics and the way
this whole thing has gone down," Mr.
Bolen said.
An Issue of Commonality
Even among the remaining members
of both consortia, some states
won't use parcc and Smarter Balanced
tests for all the relevant
grade levels. Wisconsin, for example,
will only use Smarter Balanced
tests in grades 3-8, while relying on
act tests in high school. Missouri
plans to use Smarter Balanced only
for the 5th and 8th grades.
Regardless of which states will
use certain tests for certain grades,
the broad use of consortia tests
would not in any way ensure strong
implementation of the common core
itself, or that good curricula and resources
will be developed to build
a bridge for students between the
standards and the tests, said Dennis
Van Roekel, the president of the
3 million-member National Education
Association.
"We don't need a high-stakes standardized
test to do that," he said.
In contrast to Mr. Van Roekel's argument,
a proliferation of commoncore
assessments in states, strongly
aligned or not, creates an "uncommonness"
that pushes the country
closer to the era of No Child Left Behind,
with more standards and tests
in use by states, said Tom Loveless,
a senior fellow in governance studies
at the Brookings Institution's Brown
Center on Education Policy.
"If we wind up with multiple
tests, and those tests are reporting
different percentages of kids proficient,
... it seems to me that's a huge
blow to the common-core advocates'
original argument," he said. "Tests
are always most popular before they
are given."
Jacqueline King, a spokeswoman
for Smarter
Balanced, said
that despite
the political
fe r v o r,
t he
BARRY BOLEN,
S.C. board
chairman, backs
the commoncore
standards.
consortium's
focus on fieldtesting-with
2
million students
so far
this spring-
combined with
broad, positive
feedback from
teachers, has
given the testing
group confidence.
"We
have to be vigilant, and we
are. We're in constant communication
with our states, because this is
just a political reality that we're living
in," Ms. King said.
Jeffrey Collins/AP
http://pddirectory.edweek.org http://pddirectory.edweek.org http://www.edweek.org
Education Week - May 7, 2014

Table of Contents for the Digital Edition of Education Week - May 7, 2014
