The Achievement Gap and Disparate Impact Discrimination in Washington Schools

• Publication year: 2013

Washington Law ReviewVolume 36, No.4, SUMMER 2013

COMMENTS

The Achievement Gap and Disparate Impact Discrimination in Washington Schools

Sarah Albertson(fn*)

I. INTRODUCTION

In today's public schools, students designated as "white" and "Asian" consistently outperform students from other ethnic groups in test scores and graduation rates.(fn1) These disparities, commonly called "the achievement gap," are a symptom of greater issues, or "opportunity gaps."(fn2) In fact, commissioned studies on the achievement gap in Washington public schools show that the gap is the result of, in part, policies that are neutral on their face but have a disproportionate effect on communities and students of color.(fn3) These gaps are evidenced in several areas, including performance on standardized tests, classroom assessments, tardiness and absences, access to key courses, advanced placement courses, and higher education; and attainments of high school diplomas and GEDs, college degrees, and academic honors.(fn4)

These problems are not unique to Washington State-they have deep roots in our nation's history.(fn5) Efforts to address the achievement gap and inequities increased with Brown v. Board of Education(fn6) and the passage of the Elementary and Secondary Education Act in 1965 (the current reauthorization of this Act is the No child Left Behind Act of 2001), which was a far-reaching attempt to obtain equal access to education and educational resources.(fn7) But gaps persist.

Washington has recently taken a further step to address the achievement gap and racial discrimination in schools. In 2010, the Washington legislature passed the Equal Education opportunity Law (EEoL), HB 3026, in response to the recommendations in commissioned achievement gap studies.(fn8) Now codified as Washington's Revised Code 28A.642, the EEOL states the following:Discrimination in Washington public schools on the basis of race, creed, religion, color, national origin, honorably discharged veteran or military status, sexual orientation including gender expression or identity, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability is prohibited.(fn9) The EEOL is an expansion of Washington's existing public school antidiscrimination law, which had only prohibited discrimination on the basis of sex,(fn10) and was intended to model the sex equality law.(fn11) The EEOL also authorizes the Office of the Superintendent of Public Instruction (OSPI) to enforce this law through regulations.(fn12)

This Comment argues that the OSPI's promulgated regulations to enforce the EEOL cannot effectively carry out the intent of the EEOL because they do not expressly prohibit disparate impact discrimination. Because legislators intended the EEOL to close the achievement gap, which results from race-neutral policies, an explicit prohibition of disparate impact discrimination is necessary to seriously address these deeply rooted problems.

Part II of this Comment explains the theory of disparate impact discrimination and its influence on the achievement gap.(fn13) Part III examines the scope and purpose of the EEOL and the OSPI regulations in the Washington Administrative Code.(fn14) Part IV argues that the OSPI regulations are insufficient to improve the achievement gap because if the law does not explicitly prohibit disparate impact discrimination, then aggrieved persons may be barred from relief because alternate claims- such as disparate treatment and equal protection-are much more difficult to prove.(fn15) Also, a lack of clarity in the OSPI regulations may result in a limitation on aggrieved persons' right to a private right of action.(fn16) Part V argues that OSPI should amend the regulations to clearly prohibit policies and procedures that result in discrimination in order to adequately reach achievement gap claims.(fn17)

II. THEORIES OF DISCRIMINATION AND THE ACHIEVEMENT GAP

The achievement gap is not a reflection on students' ability to learn, but rather on the inadequacies of our education system. We have come a long way since Brown v. Board of Education,(fn18) but the legacy of racism in our schools still needs addressing. Section A introduces the laws put in place to stop racial discrimination in schools and explains how Washington's achievement gap problem should be addressed under the doctrine of disparate impact discrimination. Section B then explains how the achievement gap evidences proof of discrimination in the school setting.

A. Early Federal and Washington State Laws Prohibiting Discrimination in Schools

Title vI of the Civil Rights Act of 1964 provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."(fn19) The purpose of Title VI is to ensure that public funds are not spent in a way that encourages, subsidizes, or results in racial discrimination.(fn20) To that end, Title VI authorizes and directs federal agencies to enact rules and regulations that are consistent with achievement of the statute's objectives.(fn21) Most federal agencies adopt regulations that prohibit the recipients of federal funds from using criteria or methods in the administration of their programs that have the effect of subjecting individuals to discrimination based on race, color, or national origin.(fn22) Public school systems are included in Title vI's definition of "program or activity."(fn23)

While Title vI does not expressly state what discrimination consists of, courts have held that Title vI claims may be proven under two theories: intentional discrimination (disparate treatment) and disparate impact (disparate effects). under the theory of intentional discrimination, the recipient, in violation of the statute, engages in intentional discrimination based on race, color, or national origin.(fn24) under the theory of disparate impact, no proof of intent is required if a recipient, in violation of agency regulations, uses a neutral procedure or practice that has a disproportionate adverse effect on a group protected by Title VI.(fn25)

In Title VI cases, courts have followed Title Vll's standard of proof for disparate impact.(fn26) The Supreme Court first adopted the disparate impact theory in the context of employment and Title vII in Griggs v. Duke Power Co.(fn27) At issue in Griggs was an employer's requirement that employees seeking jobs or promotions have a high school diploma and pass an intelligence test. While these requirements were applied equally to Caucasian and African-American persons seeking jobs and promotions, the requirement resulted in an adverse impact for African-American applicants, who had long received inferior education in segregated schools.(fn28) The Court found that the employer's requirements invalidated the Civil Rights Act of 1964 and held that the Act prohibited "not only overt discrimination but also practices that are fair in form, but discriminatory in operation."(fn29) Even where the practice is neutral in terms of intent, it is prohibited unless justified by a business necessity related to job performance.(fn30)

After establishing the disparate impact theory in Griggs, Congress codified the theory in Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, and national origin.(fn31) To establish a prima facie case of disparate impact discrimination under Title VII, "a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that 'any given requirement [has] a manifest relationship to the employment in question,' in order to avoid a finding of discrimination."(fn32) In the education context, the defendant must show that the policy or procedure in question has a manifest relationship to the education in question.(fn33)

Before the passage of the EEOL, the Washington state civil rights law that prohibited discrimination in public schools was the Washington Law Against Discrimination (WLAD).(fn34) WLAD generally recognizes "the right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal."(fn35) Educational institutions are recognized within the statute and regulations as a place of public accommodation, and thus, are prohibited from discriminating on the basis of any of the protected classes.(fn36)

Individuals claiming discrimination under the WLAD can file a complaint with the Washington State Human Rights Commission (HRC), created by the WLAD.(fn37) The HRC acts as a neutral fact finder and investigates complaints. Upon a finding of reasonable cause to believe that an unfair practice has been or is being committed, the HRC must endeavor to eliminate the unfair practice.(fn38) Alternatively, in lieu of the HRC complaint process, a complainant can file a civil suit against the alleged wrongdoer.(fn39) While the WLAD provided an avenue for complaints of discrimination, prior to the enactment of the EEoL, there was no state agency with...