Tuesday, March 27, 2012


There has never been any confusion about the difference between being "enrolled" in school and "attending" school. Never. Unless you count a recent Kentucky Court of Appeals opinion which is under review by the Kentucky Supreme Court. I can't explain the Appeals Court's confusion except to guess that it is related to some form of judicial activism; the kind that couldn't care less about what the law actually says.

As a school principal, I enrolled thousands of school children over two and a half decades. And students attended school after they enrolled. They aren't the same thing. Some days students were absent, but we didn't clear out their desks, because they were still enrolled. In order to keep school attendance up during the last century, districts even hired truant officers (DPPs) to chase the enrolled kids out of the pool halls and into the schools so that they were in attendance.

In fact, if I had turned in an attendance report that claimed 100% attendance based on the total number of students enrolled at the school, I would have been charged with fraud. 

KRS 159.070 reads, "Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children in the public school nearest their home." We know that the legislature meant what they wrote in 1990 because the Kentucky Supreme Court had just evacuated all Kentucky school laws when it declared the entire system to be unconstitutional in Rose v Council for Better Education. In the midst of a declared emergency, the legislature reviewed the old law, and amended the statute.

Judge Kelly Thompson
But Kentucky Appeals Court Judges Kelly Thompson and Michael Caperton don't like busing and argued emotionally that the state's efforts to use buses to desegregate the schools, was a "social experiment."

"Busing creates the impediment of distance among parent, child, and school and, therefore, increases the difficulty of family involvement," Thompson wrote, as though he was running for the state house. (Video of the Court of Appeals arguments) (14-minute Video segment of Attorney Brian Leet during oral argument)

This from the 25 August 2011 Herald-Leader:

Ky. judge pushes for neighborhood schools

 A Kentucky appeals court judge called Wednesday for the state's largest school district to end the "social experiment" of busing students for desegregation purposes and revert to neighborhood schools, stepping into what has become a high-profile political issue.
Judge Kelly Thompson said Jefferson County Public Schools should "get out of the courtroom" and abandon any plans that include having students ride school buses across the county.
"I'd like to ask that you concentrate on neighborhood schools and get out of the courtroom," Thompson said at the end of two hours of oral arguments over how the Louisville-based school district assigns students to schools. "You've got more litigation than any school district in the country." ...
The central legal issue is whether Kentucky's law, which says parents may "enroll" a student at the school closest to their home, also entitles that student to attend the same school.
Sheila Hiestand, one attorney for the parents challenging the student assignment plan, told the judges that there's no practical difference between "enroll" and "attend" when it comes to the law.
Judge Thomas Caperton questioned the wisdom of taking students from areas of the city noted for low academic achievement and sending them across town: "Rather than hire a teacher ... it's better to put them on a bus and ride them around for a few hours."

Read more here: http://www.kentucky.com/2011/08/25/1856815/ky-judge-pushes-for-neighborhood.html#storylink=cpy

But Thompson and Caperton's ideological view of the school business could, if upheld, kick-start a string of unanticipated consequences that would likely cost Kentucky schools far more than the already substantial costs associated with transporting students.

The most immediate concern would be the near total loss of economies of scale due to the dispersion of very expensive special education services mandated to approximately 100,000 Kentucky students under federal law. The federal courts have previously ruled that parents of special needs students have no right to their child being educated in the school nearest their home. Districts must provide special education program accessibility, but not in every school in the district. This allows districts to manage service delivery for a more efficient operation. Where the Rose decision had required an efficient system of schools, Judges Thompson and Caperton would waste millions of dollars "legislating" their ideological preference.

Viewed historically, the Court of Appeals interpretation could be seen as simply one more volley in a long-running battle over how students in Louisville are assigned to schools.

The latest such volley came last Tuesday from Sen Dan Seum in the Kentucky Senate.

This from the Courier-Journal:

Kentucky Senate passes anti-busing bill 
aimed at Jefferson County 
The Senate passed a bill Tuesday that would allow parents to circumvent Jefferson County’s controversial student-assignment plan — though the measure is expected to stall in the House amid criticism that it would undermine decades of desegregation efforts.

Senate Bill 9, approved by a vote of 21-15, would allow parents to enroll their children in the school nearest their home, undermining the district’s student assignment plan in which students are bused to other neighborhoods in the interest of diversity.

All Republicans present voted for the bill, as did the chamber’s one independent, while all Democrats opposed it.

Sen. Dan Seum, R-Fairdale, the bill’s sponsor, conceded that the measure has little chance of passing the Democratic-controlled House, particularly with little more than a week left in the session.

But Seum said Tuesday’s debate on the Senate floor helps keep a spotlight on the issue as the Kentucky Supreme Court prepares to hear arguments this spring on a legal challenge to the plan...
The district’s student-assignment plan has generated consternation among some parents over longer bus rides, which can be as much as two hours per day for some students.
Jefferson County parents filed suit for the right to send their children to neighborhood schools, and they prevailed before the Kentucky Court of Appeals — the case the Supreme Court is about to hear. But the district and others contend that undermining the busing policy would reset the clock on integration...
[Sen. Gerald Neal, D-Louisville] sought to draw attention to the issue of local control by proposing an amendment that applies the bill statewide. But Republicans defused the point by supporting the change — on grounds that it would not change current law — and the amendment passed on a unanimous vote...
Critics have continued to call for a return to neighborhood schools, arguing that busing has failed to improve achievement while burdening students.
Jefferson County has received support in the suit from the Kentucky School Boards Association and Fayette County public schools — groups that have filed briefs in the case.
The Louisville League of Women Voters and the Jefferson County Teachers Association has also voiced support for the student-assignment plan.
When Seum proposed the same legislation in 2010, it drew a response from State Sen. Tim Shaughnessy who filed a bill that would require the state to pay the costs — possibly hundreds of millions of dollars — that would result from the neighborhood schools proposal. Senate President David Williams called Shaughnessy's bill "a cheap political trick," something Williams knows a thing or two about.

A "Neighborhood Schools Law" will 
resegregate Kentucky's public school districts 
wherever segregated housing patterns 
exist within the larger community. 

It is vital that citizens understand this: The public schools eat what the public feeds them. 

Whatever exists in the larger society will be visited upon the schools, in some measure that is roughly proportionate to its scale in the community. Where there is great poverty in the community, needy students arrive at school, and such schools typically struggle to meet high standards. Where the community values and supports education, the schools tend to flourish. And where there are segregated housing patterns within a large city, it is impossible for school districts to desegregate without busing, until those housing patterns shift.

In Jefferson County, busing has been a concern to some citizens since Day One.

Since people tend to view the Kentucky schools in terms of their own neighborhood school experience, a "neighborhood schools law" might not raise an eyebrow in most parts of Kentucky, the 8th whitest state in America. But in large communities it would surely reverse decades of social progress.

Viewed historically, the neo-conservative brand of social engineering represented by Senate Bill 9 is suspect. 

Following Brown v Board of Ed, the government had a compelling interest in assuring that public schools (an arm of the government) were not continuing their past discriminatory practices (as were required by state legislatures during the Jim Crow era). Conservatives wanted the courts to stay out of local business (arguing states' rights, while attempting to maintain the status quo). Through the 60s and into the 70s Jefferson and Fayette Counties lacked a non-discriminatory system, so the courts granted plaintiffs relief, requiring school districts to come up with student assignment plans that promoted racially diverse student populations. Civil rights advocates were arguing against states' rights at the time, asking the court to monitor such plans - and they did. The Jefferson County Public Schools were desegregated by court order until 2000.

After its release from the order, JCPS implemented an enrollment plan to maintain substantial racial diversity within the schools. Students were given a choice of schools, but not all schools could accommodate all applicants. In those cases, student enrollment was decided on the basis of several factors, including place of residence, school capacity, as well as race. However, no school was allowed to have an enrollment of black students less than 15% or greater than 50% of its student population. When Crystal Meredith's son, a white child, was denied entry into his neighborhood school based on his race, it set off a challenge to several decades worth of student assignment plans.
In 2007, a divided (5-4) US Supreme Court struck down public schools' consideration of race when assigning students to schools, holding that the policies did not survive the applicable "searching standard of review," which required the school districts to demonstrate that the use of individual racial classifications in the assignment plan is 'narrowly tailored' to achieve a 'compelling' government interest."

I suppose that since the Jefferson County plan worked, and the state was no longer preventing blacks from being educated with whites, the Roberts court figured protections against discriminatory segregation wasn't needed anymore. Civil rights leaders turned 180 degrees arguing that the court should stay out of local affairs.


So now, if enacted, Senate Bill 9 would apply state-wide, including in Fayette County where segregated housing patterns would guarantee a resegregation of the Fayette County public schools.

To illustrate the point, KSN&C sat down with FCPS Attendance Analyst Bob Joice to look at the current distribution of students by race according to the district's 2011 data. I have an old map of the district that I had created when I was still with the FCPS Equity Council, somewhere around 2001 or so, which I use from time to time when I teach. I revisited that map most recently on Thursday. I cannot reproduce it here, but in many sections of the county racial divisions were readily apparent. Looking at Bob's new data, segregated housing patterns still exist - but to my eye - to a lesser degree than a decade ago. It was the first thing Bob pointed out to me. Some progress is being made under the existing conditions in Fayette County.

The map below shows the distribution of Fayette County students by race; where the white dots (which when overlapped due to population density appear gray) show the actual location of homes where white children reside; and similarly, Yellow for Asian student homes; Gold for "Two or more races" (a category we did not even track a decade ago; Red for Hispanic; and Blue for African American or Black.

As I would say to my students:   Tell me what you see.
Compared to my 2001 map, the clustering (segregation) of the African American population on the north side of town still exists but there appears to have been some inroads made on the south side of town outside of Man O War Blvd. A growing cluster of Asian students has appeared in the west. Hispanic students seem to be more distributed across the county rather than clustered in the western Cardinal Valley area as they were a decade ago.

To anticipate the impact of a "neighborhood schools law" (SB9) on the Fayette County schools, let's do a visual thought experiment. What if one were to mentally draw circles on the map above to represent a radius of about a one mile from a given school? (On my laptop screen those circles would appear to be about the size of a nickle; larger for larger monitors.) Visualize rows and columns of circles and notice what colors are captured by those shapes. It's pretty easy to see how the segregated housing patterns get reflected directly into the schools.

But it's not quite that simple. Schools aren't necessarily where we imagine them to be. In reality, where schools are actually located is based on historical building patterns - where a school was needed at the time it was built. So any new "neighborhood schools law" would be superimposed on top of existing schools and they are not evenly distributed. It can get to be a mess pretty quickly as one might imagine from the map below which uses the location of existing schools for our experiment. It's actually a pretty good example of why school board members hate to deal with redistricting. It is nothing short of a major pain in the rear.
In practice, school attendance areas follow roads and neighborhoods like this example from Fayette County. It doesn't take a genius to see how the neighborhood schools law would wreak havoc on the Fayette County Board of Education.

The Racist History of Neighborhood School Laws 

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts famously wrote. Those who believe that America, in the era of Obama, is post-racial, are likely to agree with Roberts. But those who believe that America is not yet post-racial, are likely to view the ruling suspiciously, particularly since neighborhood school laws were used in the past to maintain segregated systems.

The history of neighborhood school laws has a sinister underside that gets completely lost when one only focuses on their own neighborhood school in 2012. Last fall, Indiana University researcher Hope Rias reported to the Organization of Educational Historians that the racist history of neighborhood school laws is perhaps best illustrated by the St Louis experience. In 1970, at roughly the same time Louisville was coming under a court order and struggling with busing, St Louis decided to deal with student assignment by holding students in neighborhood schools.

Like virtually every other city in America, segregated housing patterns existed in St Louis. Under the neighborhood schools plan, two thirds of all St Louis black students attended schools where 75% or more of the students were black. St Louis blacks tended to live in the north end of the city while the southern suburbs were overwhelmingly white. The downtown area was fairly well integrated. So, unless one lived in downtown St Louis, they were very likely to live in a segregated neighborhood, amid housing patterns that kept blacks with blacks, and whites with whites.

St Louis did not have explicit school attendance laws for black children because the segregated housing allowed whites to use neighborhood schools to keep the races apart. Over a decade, city officials redrew the lines whenever a sufficient number of blacks became rich enough to move into the better neighborhoods of the suburbs. By that means, black children remained in black schools.

Rias found that "As black families started to make a little bit more money...and move toward the suburbs, the city would redraw the district lines, starting with that black neighborhood...all the way to the suburban neighborhood and circle the three houses were where black people lived, so that they technically had to go to that black school down in the city proper."

St Louis was a latecomer when it came to court orders forcing desegregation. Busing in St Louis under the neighborhood approach meant busing white kids from overcrowded white schools to other white schools.

This from The Courier-Journal:
Misbegotten bill
The Kentucky Senate has passed the so-called “neighborhood schools” bill, and that is as far as this misbegotten piece of legislation should go.

The partisan ploy, hatched during the failed gubernatorial campaign of Senate President David Williams and sponsored by Fairdale Republican Sen. Danny Seum, is an assault on local control of public schools.

Beyond that, it is a thinly veiled effort to undercut the student assignment plan. Virtually all observers suggest that it is could have the effect of resegregating Louisville’s public schools.

There is no public groundswell for this meddlesome bill. In fact, when given a chance to request reassignment for their children recently, elementary school parents overwhelmingly stuck with their assigned school rather than seek transfers.

Sen. Seum’s career has been marked by repeated efforts to lower the quality of life in his home county (remember, he was the bitter foe of mandatory auto emission inspections). Our student assignment plan has created diverse and popular public schools. Let the Senate stick to bungling its redistricting plan and leave our public schools alone.
The only way to achieve the twin goals of educational excellence and equity is to assure that every Kentucky neighborhood has an excellent school. Anything short sells some students short.We will never get there if the Court of Appeals is allowed to legislate massive waste and duplication into the system: inefficiencies which threaten
  • magnet schools
  • specialized programs
  • alternative programs
  • special education programs 
  • vocational programs
  • technical schools
  • English language learners

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