1 Equal Opportunities Presented to: Board of Education of Hinsdale Township High School District No. 8 6 Presented by: Stanley B. Eisenham m er and Pam ela E. Sim aga Hodges, Loizzi, Eisenham m er, Rodick & Kohn LLP May 28 , 20 20
2 Agenda 1. Purpose 2. The Answers 3. Laws that govern equity in education a. Federal rules b. State rules 4. Application to Hinsdale 5. The Answers 6. Other Ideas
3 Purpose for Presentation • Some community members raised concerns that the difference in student enrollment between the two high schools creates unequal educational opportunities at Hinsdale South. • HLERK was asked to present on law relating to equal educational opportunities and how law should be applied in this District.
4 The Answers • The students of Hinsdale South High School are not denied equal education opportunities. • District 86 is compliant with school equity rules. • Let’s talk about why and the rules that apply.
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7 Laws that Govern Equity in Education • The U.S. Constitution ▫ Equal Protection Clause (14 th Amendment) “No state shall make or enforce any law which shall . . . deny to any person . . . the equal protection of the laws.” Brow n v. Board of Education, Topeka, KS : separate is inherently unequal.
8 Laws that Govern Equity in Education • Title VI ▫ Applies to recipients of federal funding. ▫ Prohibits intentional discrimination and neutral policies that have a disparate adverse impact on race, color, or national origin. ▫ 2014 OCR “Dear Colleague” letter states that school districts that receive federal funding must allocate educational resources in a non- discriminatory manner.
9 Laws that Govern Equity in Education • State Law: Illinois School Code ▫ Section 10-20.12 of the School Code Empowers local school boards “to secure for all [students] the rights and opportunity to an equal education in such schools.”
10 Laws that Govern Equity in Education • State Law: ISBE Rule ▫ ISBE Rule – Section 1.240 “(a) All students within a school district must be provided equal opportunities in all education programs and services provided by the system (see Section 10-20.12 of the School Code).” (b) Prohibits exclusion, segregation, or discrimination against any student on the basis of specific protected classes.
11 Laws that Govern Equity in Education • Read law together ▫ Constitution/ Federal law ▫ OCR guidelines ▫ Section 1.240 • Section 1.240 ▫ Ensures that students of protected classes receive equal opportunities for success. ▫ Not that schools are required to provide same classes or activities.
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13 EPC: Key School Cases • Brow n v. Board of Education of Topeka (U.S. 1954) ▫ Separate is inherently unequal. • Rodriguez v. San Antonio Ind. Sch. Dist . (U.S. 1973) ▫ Parents of low-income students objected to the property tax-based school funding system in Texas. ▫ Court ruled that a certain quality of education is not a fundamental right under the Constitution. ▫ Funding system was deemed constitutional.
14 EPC: Applies Here • The Board of Education is a form of government and it must follow the EPC. • The Board divides students into two schools. • There are differences between the two schools.
15 EPC: Rules for Review • Rational Basis Review: A law or government policy may discriminate or distinguish between people or groups as long as there is a rational purpose for it. • Heightened Scrutiny Review ▫ Applies if the law intentionally distinguishes between races or sex, or impacts a fundamental right. ▫ Review— Reason must be compelling or important. Must be a necessary policy/ law to achieve the purpose.
16 R uth B ader G insburg
17 EPC: What test do you apply? • Depends upon whether division involves a suspect class or a fundamental right. • Suspect classes: race, sex* • Fundamental rights: voting, religion, speech, parentage, education*, others ▫ Education is only fundamental if fully deprived, like policy denying undocumented students an education ( Plyler v. Doe )
18 EPC: What test do you apply? • Although the difference between rational basis and strict scrutiny appears clear, it is not as clear when applied. • Difference between Brow n and Rodriguez. • One is race-based and the other involves neither race nor a fundamental right.
19 EPC: What test do you apply? • Ex: Closing houses of worship during an epidemic. ▫ Exercise of religion is a fundamental right, but protecting people’s health is a compelling purpose. ▫ There is no compelling reason to distinguish between churches and liquor stores. ▫ Then again, if based on gatherings of 10 people or less, then the division is not based on religion and only needs a rational purpose.
20 Application to District 8 6 • District is divided into two schools. ▫ Hinsdale South has more students of color. • No evidence that the attendance boundaries were drawn to separate students by race. • No evidence that boundaries were set up, changed, or gerrymandered to filter students of color to Hinsdale South.
21 Application to District 8 6 • What about the elimination of the buffer zone? ▫ OCR found little, if any, impact on students of color.
22 If the Board wanted to fix the im balance, can it? • It would be difficult. Parents Involved v. Seattle Sch. Dist. (U.S. 2007) ▫ School districts implemented plans to help racially balance schools. ▫ Student race would be considered when placing students in over-enrolled schools. ▫ Parents challenged the desegregation plan under the EPC because it used race. ▫ SCOTUS applied strict scrutiny and decided that the plan was not narrowly tailored to achieve the compelling state interest of avoiding racial isolation and promoting diversity.
23 If the Board wanted to fix this im balance, can it? • It would be difficult. Parents Involved v. Seattle Sch. Dist. (U.S. 2007) ▫ Very split decision with a plurality opinion, rather than a majority. ▫ Justice Kennedy was the deciding vote. He agreed that promoting diversity is a compelling state interest, but he sided with conservatives to say it wasn’t a necessary means. ▫ He has retired and has been replaced by Justice Kavanaugh.
24 Do the Boundaries Pass Rational Review? • Yes, because it is rational to base school boundaries on factors such as: 1. Geographic proximity 2. Transportation routes 3. Neighborhood boundaries 4. Natural boundaries 5. Feeder boundaries 6. School capacity
25 Do the Boundaries Pass Rational Review? • Yes, because it is rational to base school boundaries on factors such as: 7. Current number of students in a neighborhood 8. Projected growth of neighborhoods 9. Socioeconomic status 10.Composition of neighborhood housing 11. Neighborhood – enrollment boundaries based on students attending the local, neighborhood school.
26 Do the Differences Between Schools Pass the EPC? No evidence that the differences are race-based. Apply rational review.
27 Do the Differences Between Schools Pass the EPC? ▫ Are the differences between schools rational? Yes. ▫ There is no evidence that a bigger school is better than a smaller school. ▫ There are reasons to prefer smaller schools. Class size Chances of making a cut sport or activity
28 Do the Differences Between Schools Pass the EPC? • Differences in course offerings, facilities, or extracurricular activities between Hinsdale South and Hinsdale Central can be rationally explained by: ▫ Size of the school (large, medium, or small) ▫ Size of school building and type of facilities ▫ Interests shown on student surveys
29 Do the Differences Pass the EPC? • Yes. Differences between Central and South are minimal. • Compare to Sw eatt v. Painter (U.S. 1950) ▫ Black applicant to U of Texas law school showed that U of T and state school offered to blacks were substantially unequal. Prestigious faculty vs. no independent faculty 850 students vs. 23 65,000 volumes in library vs. 10,000 volumes and no librarian.
30 Are There Equal Opportunities Between the Two Schools? • The students of Hinsdale South High School are not denied equal education opportunities. • District 86 is compliant with school equity rules.
31 The Proof is in the Pudding • Differences between South and Central do not result in unequal opportunities based upon state metrics. • Teacher retention ▫ South- 90% ▫ Central- 93%
32 The Proof is in the Pudding • Differences between South and Central do not result in unequal opportunities based upon state metrics. • Both schools have statistically similar rates of early college coursework and postsecondary enrollment. ▫ Early College Coursework: HS- 53%; HC- 56% ▫ Postsecondary enrollment: HS- 90%; HC- 91% ▫ Need for college remediation: HS- 28%; HC- 24%
33 The Board has Worked to Im prove the Pudding • The Board has attempted to ameliorate differences. ▫ Sports/ activities picked and maintained on the basis of students’ interest. ▫ Students take classes at either building, if their building doesn’t have the class.
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