There Are Wild Swings in School Desegregation Data. The Feds Can’t Explain Why

Federal oversight of school desegregation goes back to the civil rights era—it predates the existence of the U.S. Department of Education itself. And cases involving the issue remain controversial to this day.

But the volume of such cases—at least as reported by school districts—appears to have fluctuated dramatically in recent years: The number of districts reporting they were party to such orders or plans nearly doubled from the 2013-14 Civil Rights Data Collection to the 2015-16 collection that was released by the Education Department last month.

That’s in sharp contrast to the dramatic, 86 percent drop between the 2011-12 collection and the 2013-14 collection in the number of districts reporting they had desegregation orders or plans.

But it’s not clear that anyone—including federal education officials—can provide a clear answer as to why those numbers have changed in the department’s biennial report.

Desegregation orders or plans can involve a variety of factors at the school district level, including those involving racial isolation of schools, the diversity of school faculty members, and classroom conditions and resources.

Many of these orders have been on the books since the 1960s and 1970s, after the Elementary and Secondary Education Act was passed but before the Education Department began operations in 1980. They can be the result of a court mandate, although districts that are the subject of complaints can also enter into voluntary agreements with the office for civil rights under the Civil Rights Act of 1964, or with other agencies.

According to the most-recent three reports from the Civil Rights Data Collection:

• For the 2011-12 school year, more than 1,200 districts reported they were subject to a desegregation order or had a desegregation plan.
• For the 2013-14 year, only 171 districts reported this.
• For the 2015-16 year (the data just released), 334 districts reported such orders or plans.

And a closer look at the data shows a trend that’s hard to reconcile with the recent history of these orders or cases. The 2015-16 data collection reports that 137 districts reported they were subject to a desegregation order or plan in 2015-16, but not in 2011-12 or 2013-14, even though the general landscape and recent history of desegregation orders makes the phenomenon hard to explain.

‘Cannot Be Directly Compared’

So what changed from 2011-12 to 2013-14, and then from 2013-14 to 2015-16? One answer: the definition for desegregation orders and plans that districts use in deciding whether to check that box. But it’s unclear whether that definition was changed in a substantive way that could account for the striking rise and fall in the number of reported cases.

Here is the definition in the CRDC from 2011-12: “A desegregation plan either ordered by a court or entered into with the Office for Civil Rights under Title VI of the Civil Rights Act of 1964.”

The new definition—nearly 150 words long—went into effect for 2013-14 and expanded the scope to include any order or plan that involves other federal or state agencies, and it specifies what such an order or plan addresses.

An Education Department spokesman in an email said the definition was changed “to provide both clarity and additional detail” and that the department did not consider the change “a ‘new’ data element” because it did not alter the underlying type of data being collected. The change was meant to capture desegregation orders or voluntary agreements outside of just the courts or the federal office for civil rights. For that reason, the department spokesman said, the CRDC asked school districts “to report different information than previously requested by the CRDC” about the issue.

At the same time, the spokesman said that, “Due to the change in definition, the data submitted for the 2011-12 CRDC cannot be directly compared to the data submitted for the 2013-14 and 2015-16 collections. The department has not conducted any across-time analyses.”

The spokesman also said, “The Department of Education takes no position on why numbers go down, up, or remain stable. The data is self-reported and self-certified by school district superintendents or their designees.”

Asked who made the change, which occurred under the Obama administration, the spokesman would only say that it was “senior leaders with OCR.”

Frequency of Districts Reporting Desegregation Orders or Voluntary Plans

Over the last three Civil Rights Data Collections, the majority of districts reporting that they were in desegregation orders or plans did so only once. Fewer districts reported they were in them for all three years, and still fewer reported being in them for two years.

Source: Education Week Research Center analysis of civil rights data, 2018.

The Department of Justice also has a list of cases involving school districts that have been the subject of legal complaints regarding the educational opportunities they provide on the basis of race. But only 65 cases are listed—the Justice Department is not necessarily a plaintiff in all school desegregation cases—and they are not all in the same place in the process.

Wayne County schools in Mississippi, for example, are under a consent order in a case dating back to 1970, while Wicomico County schools in Maryland reached a settlement agreement with the Justice Department early in 2017 that lasts until 2019.

The Education Department spokesman said it is unlikely “that the Department of Justice would have the complete numbers of desegregation orders fitting into all categories described by the CRDC question (i.e. state agencies and state officials).”

‘Dramatic Change’

It’s possible districts back in 2013-14 might have gotten tripped up by things like the newer definition’s reference to the Department of Health, Education, and Welfare—a predecessor to the Education Department—said Zoe Savitsky, the deputy legal director for children’s rights at the Southern Poverty Law Center, who was a lawyer in the educational opportunities section of the civil rights division of the U.S. Department of Justice during the 2011-12 school year. (The Department of Health, Education, and Welfare included an office for civil rights that monitored desegregation.)

But ultimately, she said, “I am not sure, looking at these definitions, how this could account for the dramatic change” for 2013-14, when the numbers plunged.

Share of Districts in Desegregation Orders or Voluntary Plans by Year

The U.S. Department of Education reports civil rights data every other year. During the last three reports, more than three-quarters of the school districts that said they had desegregation orders or plans in place did so only for the 2011-12 report. Nearly 10 percent of districts only reported that status for 2015-16.

Source: Education Week Research Center analysis of Civil Rights Data, 2018.

Savitsky estimated that there are roughly 300 to 350 active desegregation court orders on the books. Groups like the NAACP Legal Defense and Educational Fund also act as plaintiffs, in addition to the Justice Department. Still, that estimate does not cover voluntary desegregation agreements with federal or state agencies. It is very rare, she noted, for the Education Department to refer a desegregation case to the Justice Department.

As a general rule, Savitsky said, many of the court desegregation orders have been on the books for decades. And there hasn’t been a surge in the number of districts submitting to court-ordered desegregation plans or voluntary agreements with the office for civil rights, said Daniel Losen, the director of the Center for Civil Rights Remedies at the University of California, Los Angeles. Losen also said he saw nothing in the change in definitions from 2011-12 to 2013-14 that would account for the dramatic drop or the subsequent increase.

“It could be an error. It could be a lack of clarity that was provided to districts. ... Maybe there was confusion about what the definition change meant or didn’t mean. Maybe that got clarified the second time around,” he said. As far as he can tell, Losen said, “there hasn’t been some doubling of desegregation cases.”

Outside Information

In May 2014, Education Week reported that there were more than 1,200 local education agencies—including districts and charter schools—that were covered by a desegregation order or plan. Those districts educated about 7.7 million students at the time.

And in December 2014, Nikole Hannah-Jones and Yue Qiu at ProPublica published a database reporting hundreds of open court desegregation orders and voluntary orders, with some districts covered by more than one order. However, Hannah-Jones noted at the time that the recordkeeping of the court desegregation orders was in “disarray.”

Hannah-Jones also pointed out that the second Bush administration worked to significantly curtail court desegregation orders. But that drop-off during the 2000s does not cover the drop-off that took place between the 2011-12 and the 2013-14 CRDC collections under the Obama administration. Then there’s districts’ awareness of the issue itself: One lawyer for a Mississippi district under a desegregation order told Hannah-Jones that he had never read the order and didn’t know if it was still in effect.

The Indian River County district in Florida reported that it was under a desegregation order or plan for 2015-16 but not for the previous two years. However, last year, the district filed to lift parts of a desegregation order that stretched back roughly 50 years. Asked for comment about its reporting for 2011-12 and 2013-14 data collections, Indian River district spokeswoman Cristen McMillan responded in an email that, “We cannot comment on open litigation.”

Simply put, civil rights data can get messy. “There are a lot of concerns with the quality of the CRDC,” said Savitsky.

No Recollection of Changes

If anything, the new definition for 2013-14 should have led more districts to tell the department they had desegregation orders or plans, not fewer, said one Obama administration official.

Seth Galanter, a former principal deputy assistant secretary for human rights in the OCR, said he had no recollection of a change being made, why the definition was changed, or who initiated it.

But he rejected the idea that the newer definition would lead to a big dip in the number of districts reporting they were subject to desegregation orders or plans, or lead to a subsequent increase.

“It’s better, because it captures a broader range of schools that are under an obligation to someone, be it a court, a federal agency, or a state agency, to desegregate,” Galanter said of the newer definition. For that reason, he said, it was “troubling” that the number of districts that believed they had to say they were under desegregation orders or plans plunged from 2011-12 to 2013-14.

For the 2015-16 data collection, Galanter said, districts would have been notified if their answer to the question about desegregation orders or plans was different from what it was for 2013-14.

In what he termed a “soft defense” of school systems, Galanter noted that district leaders often delegate the job of providing information for the data collection to lower-level staff, leading to potential problems in the information that’s entered.

But aside from this broader challenge districts face, Galanter added, “Not being able to accurately identify every school district that has not fully met its desegregation obligations denies the federal government the opportunity to monitor those districts.”

Galanter also said, “The odd pattern of significant shrinkage in affirmative responses followed by a doubling of responses warrants close review by OCR.”

’Those Things Are Still Going On’

Unlike other statistics released on issues such as discipline and school safety at individual schools, the CRDC is not the sole source of information about desegregation cases—there are federal court records, for example.

Still, there’s an element of irony about the big fluctuations in these civil rights data with respect to the past administration. That’s because one of the priorities for Obama education officials was highlighting the benefits of integration and the potential harm of racially isolated schools.

That was particularly true under U.S. Secretary of Education John B. King Jr., whose tenure lasted a little less than a year. (King was not working at the department when the definition regarding desegregation orders and plans was changed for the 2013-14 collection.)

In 2016, for example, the Government Accountability Office reported that racial as well as economic isolation in schools was increasing—in effect, the analysis found that a major resegregation of American schools was underway. A few weeks before that report came out, King spoke to reporters about the positive power integration has for schools.

Through a spokeswoman, King declined to comment on the recent statistics about desegregation orders.

Losen expressed skepticism about the gap between what districts were telling the Education Department and the reality in those districts around the country.

“What they’re basically saying is: Those things are still going on, we’re just not reporting it that way any more,” Losen said.