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State Mandates, Equity Law: On a Collision Course?

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Alfred D. Tutela, superintendent of the Cleveland Public Schools, has an ambitious agenda for improving the quality of the education provided in his district.

His wish list includes major expansions in the district's reading programs, dramatic reductions in the ratio of pupils to guidance counselors, the conversion of all high schools to theme or magnet schools, and implementation of a "promotional gates" testing system.

Such measures have become more or less accepted as tools in the effort to reform the nation's urban school districts. But in Cleveland they go by a different name: desegregation.

NEWS ANALYSIS

As desegregation-related programs, such improvements become subject to a federal court order that requires the state of Ohio to fund 50 percent of the district's desegregation expenses.

Thus, if state officials agree with Mr. Tutela's contention that his proposals will "lead to better and more complete implementation of the court's orders," they will be required to pay half of the programs' costs.

In the past decade, school-desegregation remedies have broadened beyond merely mixing students of different races to encompass all kinds of programs designed to compensate for the educational deficiencies of segregation. As a result, many states that have been found to have intentionally promoted segregation, have, like Ohio, been forced to pay millions toward educational reforms that would not have been funded in the absence of legal pressure.

"Some of these cases have become vehicles for reforms that go beyond anything that the state had previously been ready to enter into," notes William Taylor, a prominent desegregation lawyer.

With federal courts demonstrating a willingness to order ever more extensive educational remedies--and to force states to contribute funding for them--civil-rights activists and school officials are pondering whether they can press the strategy even further.

These activists also see an emerging link between states' school-reform mandates and desegregation law. By setting or raising standards for public education, the states may be opening themselves to a new round of equity litigation based upon the disproportionate impact that these reforms have on minority students.

Busing 'No Magic Solution'

Civil-rights activists have long been frustrated by the shortage of resources available to eliminate the lingering vestiges of "separate but equal" schooling. Busing blacks and other minorities to racially integrated schools is not enough, they say.

Explains Patricia A. Brannan, a desegregation lawyer with a leading Washington firm: "A lot of black kids have been in racially isolated environments their entire lives. There's no magic solution on the day they walk into an integrated school that the educational vestiges of segregation are going to disappear."

Civil-rights activists say that no federal court has yet fully addressed what it means to completely eliminate racial discrimination "root and branch," as the U.S. Supreme Court ordered more than 30 years ago.

Some even argue that such indicators as the existence of higher levels of poverty among minorities and the continuation of segregated housing patterns are evidence that society has not adequately compensated them for decades of segregated--or nonexistent--schooling.

Activists take heart from the growing willingness of school districts--bolstered by the promise of court-ordered state funding--to cooperate in formulating comprehensive desegregation plans that break new ground in correcting systemwide educational deficiencies.

A study of desegregation costs in four large Northern cities during 1979 and 1980 found that, "at the remedial phase, decisions about what to put into a court order, and what to leave out, were based in part on the potential for securing funds," notes David L. Colton, a co-author of the study who is currently dean of the college of education at the University of New Mexico.

"In the cities we studied, the courts--urged by the plaintiffs and defendants alike--often were willing partners in the effort to shift public attention from restrictive 'racial balance' plans to broad-based 'school improvement' plans," Mr. Colton states in testimony prepared for a recent court hearing in Cleveland.

State Role Expanding

More recent developments have provided evidence that states will be playing a greater role in future desegregation remedies.

In both the Kansas City, Mo., and St. Louis desegregation cases, federal judges have pointed to the state's comparative rating of school districts as one justification for order4ing unprecedented educational-improvement plans in those cities.

In the Kansas City case, Judge Russell Clark said the goal of a multi-million-dollar school-improvement plan he approved is to bring the city's schools up to a level of "suburban compatibility."

The state of Wisconsin agreed last year to provide $30 million over six years to address educational inequities in Milwaukee as part of a settlement that staves off the potentially higher costs of a court-ordered plan. In turn, school officials in Milwaukee agreed to develop a five-year plan to improve educational offerings for all students in the district.

Citing the threat of litigation, officials in both Minnesota and Connecticut have proposed new funding for desegregation efforts. Last year, Minnesota lawmakers for the first time provided $11.6 million for desegregation efforts in Duluth, Minneapolis, and St. Paul.

That amount is expected to be increased this year; in addition, the state board of education last month endorsed a new proposal that would establish a $3-million program of incentives for districts that develop voluntary, cross-district desegregation plans.

Connecticut's commission on racial equality, in recommending last month that the state board of education be given greater authority to encourage or force cross-district desegregation, noted that "any state that does not address the existence of segregated schools is potentially vulnerable to legal action."

Because state officials have generally resisted any involvement with school-district desegregation planning, they have often found themselves paying for a plan they have had little or no role in shaping.

Officials in Ohio, after being found liable for part of the costs for extensive mandatory desegregation plans in Cleveland, Columbus, and Dayton, seemed to have learned their lesson when Cincinnati's turn came.

State officials there faced the "interesting political problem whether or not to push for mandatory busing, which would be less costly," says Mr. Taylor, who was involved in the case. "But they ultimately opted to kick more money into the kitty" to enable the district to implement a voluntary plan based on the extensive use of magnet schools.

New Standards, New Liability?

Activists say state-level reforms may also expose educational deficiencies that remain despite, in some cases, more than 30 years of desegregation litigation.

The effects of those reforms on desegregation litigation could be felt in various ways, though little impact is yet apparent.

The increased data collection and competency testing required by some state reform plans have already served to highlight the disparities in educational achievements among different racial groups.

In addition, states are often--for the first time--explicitly defining what it means to provide students with an adequate education. Some set specific guidelines in areas such as class sizes and curriculum offerings that predominantly minority districts may not have the resources to meet.

Thus, as happened in the Missouri cases, "when [desegregation plaintiffs] are looking around for a remedy--when they and the courts are trying to determine what an adequate education is--they can use what the state itself says an adequate education is," explains James S. Liebman, professor of education law at Columbia University.

Experts from around the nation gathered last year at Columbia's law school to discuss such implications of the state-level reform movement.

The experts agreed that states that have already been found liable for segregation are likely to be the first target for any new lawsuits by districts charging that they lack the resources to meet state reform standards.

According to the Supreme Court, such states have an "affirmative duty" to ensure that minorities are not discriminated against in their education systems.

Thus, states that enact higher standards for student achievement without funding programs that enable minorities to meet the increased requirements may be violating their legal duty not to take any future action that has the effect of disadvantaging minorities.

'Reasonable Grounds'

"If you can show that state officials could have reasonably forseen that their reforms would have a disproportionate impact on minorities, and that the impact has been compounded by historical segregation, I would think you would have established reasonable gounds for your argument," says Gary Orfield, a professor of political science at the University of Chicago who is currently studying the effects of school reforms on minority pupils.

"The closer you are to [the existing case law in desegregation], the stronger your case is," he adds. "The further away you get, the more problematic establishing a case becomes."

Some theorists, however, argue that even states that have not been found liable for segregation may be subject to lawsuits that would enable districts to recover some of the costs of meeting higher educational standards.

"I think there may be a way at this issue outside of the desegregation area, although it's not nearly so simple," says Mr. Liebman.

Such cases may draw upon the experience of educational-malpractice or school-finance cases, many of which foundered because the quality of education called for in many state constitutions is only vaguely defined, and courts have been generally unwilling to set specific standards, explains Mr. Liebman.

"The idea now," he says, "is that the states themselves have defined a 'standard of care'--they have identified the attributes of a minimally adequate education--in a way that is more specific and higher than existed at the time most of the unsuccessful educational-malpractice and finance-equity cases were decided."

These arguments are not merely hypothetical. Lawsuits based on them are currently being contemplated in school districts in at least five states, says Mr. Liebman.

State Resistance

State officials, faced with competing demands for funding from all school districts in a state as well as from other state agencies, are understandably unwilling to give certain districts additional money merely because a court orders them to.

State officials in Virginia and Tennessee have successfully fought legal claims for desegregation expenses filed by school officials in Richmond and Nashville, respectively. (See Edel10lucation Week, Feb. 3, 1988.)

In Missouri, officials are spending hundreds of thousands of dollars to fight such court orders in the Kansas City and St. Louis cases.

And since 1982, when Ohio was ordered to assume half of the costs of desegregation in Cleveland, state and local officials have engaged in a series of skirmishes over the issue of what programs can legitimately be claimed to aid the desegregation process.

"Essentially, it was a case of a school district seeking to increase its revenues, and a state seeking to limit the cost of a program for which it was partly responsible," says Leonard B. Stevens, director of Cleveland's court-ordered office on school monitoring and community relations.

The remedial orders issued by U.S. District Judge Frank J. Battisti in the Cleveland case are unique in that they establish specific outcomes for the desegregation plan but leave the choice of the means to achieve them up to local officials.

In addition, Judge Battisti has granted state officials the unusual authority to amend the desegregation plan without seeking court approval.

Under a settlement approved in December by Judge Battisti, state and local officials must now sit down every six months and decide what programs are to be funded under the rubric of desegregation.

In the past, district officials were free to implement programs of their own choosing, leaving the state no role in planning or cost control because the money had already been spent by the time the bills were presented.

To resolve old disputes, the state agreed to make a one-time payment of $16.9 million to the Cleveland schools, and to increase its monthly payments to the district by $400,000, to $1.9 million.

Mr. Tutela now faces the task of convincing state officials that his ambitious agenda is also needed to satisfy the court's guidelines.

"Our job is to remedy the school district 'root and branch,' and we think our agenda would achieve the court's goals," he says.

"Of course, you don't ever get everything you think is necessary," he adds. "But there's no question that the court has been the key agent in educational change in this school district."

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