3
Use of E&S Survey Data

As is true with all information resources, any assessment of the value of the E&S survey depends on the purposes for which the data from the survey are used. As discussed in Chapter 2, the E&S survey is the sole source of national school-level data about a number of issues related to equality of access to opportunity to learn. For some issues, it is the only available source of information; for many other issues, it is the only source of information that is current, disaggregated, and can be linked to specific schools and school districts. Yet officials of the Office for Civil Rights (OCR) of the U.S. Department of Education, which administers the survey, have stated that the E&S survey is underutilized, not only by researchers and the general public, but also within OCR itself.1 OCR officials say they would like to see the survey data used more extensively. In this chapter we examine how E&S survey data have been used to enforce civil rights laws, to promote public involvement in efforts to ensure that schools provide equal access to highquality education, and as a resource for education researchers.

USE IN ENFORCEMENT

Internal OCR Use

With a budget of $71.2 million (in fiscal 2000), the OCR employs 750 fulltime staff members located at the headquarters in Washington, DC, and in 12 regional offices throughout the

1  

There is little published information on how OCR uses E&S survey data. Information on OCR’s use of the survey is derived primarily from conversations and interviews with OCR officials and others who are knowledgeable about the survey and its uses.



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3 Use of E&S Survey Data As is true with all information resources, any assessment of the value of the E&S survey depends on the purposes for which the data from the survey are used. As discussed in Chapter 2, the E&S survey is the sole source of national school-level data about a number of issues related to equality of access to opportunity to learn. For some issues, it is the only available source of information; for many other issues, it is the only source of information that is current, disaggregated, and can be linked to specific schools and school districts. Yet officials of the Office for Civil Rights (OCR) of the U.S. Department of Education, which administers the survey, have stated that the E&S survey is underutilized, not only by researchers and the general public, but also within OCR itself.1 OCR officials say they would like to see the survey data used more extensively. In this chapter we examine how E&S survey data have been used to enforce civil rights laws, to promote public involvement in efforts to ensure that schools provide equal access to highquality education, and as a resource for education researchers. USE IN ENFORCEMENT Internal OCR Use With a budget of $71.2 million (in fiscal 2000), the OCR employs 750 fulltime staff members located at the headquarters in Washington, DC, and in 12 regional offices throughout the 1   There is little published information on how OCR uses E&S survey data. Information on OCR’s use of the survey is derived primarily from conversations and interviews with OCR officials and others who are knowledgeable about the survey and its uses.

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United States. OCR is responsible for ensuring compliance with civil rights laws in higher education, in addition to elementary and secondary education (although the E&S survey and this report cover only the latter). More than two-thirds of the approximately 5,000 complaints it fields each year involve elementary and secondary schools (U.S. Department of Education, Office for Civil Rights, 2000a). Since 1999, survey data have been available to OCR staff either over its private Internet-based network or on compact disks in a format that enables users to compile descriptive statistics and to combine data from different schools and districts. Although some lawyers in the regional offices often use E&S data in their work, most OCR staff seldom, if ever, use them. One reason for this lack of use is that OCR staff have not been provided with technical assistance or professional development on how to access and manipulate the data or on how the survey data could be used in enforcement activities (Peter McCabe, former director, E&S survey, personal communication, 2002). Historically, OCR has been primarily interested in the collection of E&S survey data as records rather than in the analysis or dissemination of findings. The data, collected and certified by superintendents and principals or their designees, sometimes have been used by OCR officials as background information as they investigate complaints. Except for a brief period in the late 1970s and early 1980s when books containing descriptive statistics for all surveyed districts and schools were produced (e.g., U.S. Department of Health Education and Welfare, Office for Civil Rights, 1978), the only access to E&S data that OCR staff had was in the form of paper copies of all the compliance reports (i.e., the E&S survey forms) submitted by individual schools and districts. The reports were shipped to each of the 12 regional offices in cardboard boxes. In this format, the data could be used as background information while investigating complaints involving individual schools and districts, but for little else. OCR has not routinely analyzed or even compiled the data, although the data from each administration of the survey have been recorded and stored in a computer-readable format for every administration of the survey since 1968. The most common use of the survey data by OCR is to identify schools and districts where discrimination may be occurring. As noted by OCR attorney Richard Foster (personal communication, October 2001), “If the data can get us closer to where discrimination is really occurring, then our enforcement work becomes more effective.” Compliance reviews are selected partly on the

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basis of E&S survey data, as well as from information provided by parents, education groups, media, community organizations, and the public. Compliance reviews are OCR-initiated investigations of state and local education agencies. The issues of concern and locations are selected on the basis of OCR’s enforcement priorities and informed by data from the E&S survey. Compliance reviews are described as proactive efforts to address civil rights issues and generally involve practices that affect many more students than is typically the case when OCR responds to individual complaints (U.S. Department of Education, Office for Civil Rights, 2000a; Glennon, 2002, p. 213). In 2000, 47 compliance reviews were initiated on the following topics2: ensuring that nondiscriminatory practices are followed in the placement of minority students in special education and in the provision of access to gifted and talented programs; ensuring that English-language learners are afforded access to special language services in order to benefit from a school district’s educational program; ensuring that students are not subject to a racially hostile environment; ensuring nondiscriminatory student disciplinary policies and practices; and ensuring equal opportunity for male and female students to participate in athletic programs. That year, the largest number of compliance reviews was focused on the appropriate identification and placement of minority students in special education— collectively known as MINSPED (Glennon, 2002).3 MINSPED compliance reviews are briefly discussed below to illustrate the role that E&S survey data have played in OCR enforcement activities. Between 1993 and June of 2001, OCR initiated 167 MINSPED compliance reviews—most between 1995 and 2000. Schools and districts selected for MINSPED compliance reviews were identified primarily on the basis of statistics from the E&S survey—especially that of 1994. Nearly all of these 2   The number of compliance reviews conducted varies substantially from year to year in accordance with changes in the Department of Education’s administrative priorities. According to OCR staff, no compliance reviews were initiated in 2002. 3   Theresa Glennon’s account of the MINSPED initiative is one of very few recent published accounts of OCR enforcement activities.

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compliance reviews resulted in voluntary agreements in which school districts agreed to put in place a number of measures to “reduce the misuse of special education for students of color” (Glennon, 2002, p. 199). Most of these agreements focused only on procedures for the appropriate referral, evaluation, and placement of minority students to special education programs. As Glennon (2002, p. 205) notes: This single-issue focus may be helpful in some instances, but it could also undermine OCR’s ability to direct school districts toward more comprehensive reforms in both general and special education—reforms that may be necessary to resolve the overrepresentation problem, given the evidence that multiple factors contribute to this problem. This point also has been made by Hehir (2002), Losen and Orfield (2002a), and the Committee on Minority Representation in Special Education (National Research Council, 2002b) in regard to OCR enforcement in the area of special education. Halpern (1995) has expressed similar views on the limitations of addressing pervasive racial disparities in education solely through civil rights enforcement efforts, as narrowly construed. However, some agreements transcended a narrow focus on ensuring that the students’ rights under the laws governing special education are strictly enforced. Some also addressed deficiencies in other school programs that may contribute to the observed racial disparities in special education. On occasion, the agreements that OCR negotiated with districts also addressed racial disparities in disciplinary practices, resource inequalities, achievement gaps on high-stakes tests, underrepresentation in gifted and talented programs, and overrepresentation in low-track courses of study (Glennon, 2002). Glennon cites a 1999 report from OCR’s Chicago regional office on its MINSPED compliance reviews as an example of how OCR’s enforcement efforts can produce more comprehensive approaches to addressing the problem of inequality of opportunities to learn. The Chicago office reported that its enforcement efforts were more effective when they “included an emphasis on improving the ability of a school district’s reading programs to serve its diverse student populations” (Glennon, 2002, p. 206).4 4   As noted by the Committee on Preventing Reading Difficulties in Young Children (National Research Council, 1999b), more than 2 million children have been diagnosed with reading disabilities and are enrolled in special education for that reason. Students identified as reading disabled constitute approximately 80 percent of all children receiving special education services (see also National Research Council, 2002b).

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Although she recognized the promise of some of the agreements that were negotiated as a result of MINSPED compliance reviews, Glennon (2002) noted that OCR does not publicize the agreements nor has the office evaluated their effectiveness. She also observed that none of the agreements included numerical requirements for change. However, even if the agreements included quantitative goals, OCR’s data system is not prepared to monitor compliance because in most years the E&S survey is not administered to all schools, and no data are available for schools not included in the survey. Assuming that a school district is targeted for a compliance review in part on the basis of E&S survey data, there is no guarantee that that district will be included in the next administration of the survey.5 Nevertheless, OCR claims that carefully targeted “compliance reviews nearly always result in recipients (of federal financial assistance) making policy or program changes that benefit large numbers of students— unlike complaints where remedies may benefit only the complaining party” (U.S. Department of Education Office for Civil Rights, 1999). Increased use of E&S survey data for enforcement by the OCR is contingent on factors related to the administration of the survey, as well as OCR’s enforcement policies and priorities. OCR would need to provide technical assistance to its staff in the 12 regional offices on how to access and manipulate the data. Also, professional development related to the potential uses of survey data in education civil rights enforcement would be needed. The extent to which OCR chooses a proactive enforcement strategy by engaging in compliance reviews affects the probability that OCR staff will use E&S data, and the number of compliance reviews initiated since 2000 has decreased markedly. E&S survey data could also be used to monitor the nonbinding partnership agreements, which have become the predominant OCR strategy to promote compliance with the civil rights laws (U.S. Department of Education Office for Civil Rights, 2000a). These agreements typically do not have numerical goals (Glennon, 2002), and E&S survey data have not been used to monitor outcomes (personal communication, Rebecca Fitch and Peter McCabe, Office for Civil Rights, 2002). Because OCR does not publicize the agreements it negotiates, there is no way of knowing what changes occur as a result of its enforcement activities. If OCR agree 5   Despite this limitation, the Office for Civil Rights planned to integrate data from the E&S survey into its Case Information System (CIS II) in early 2003 (Peter McCabe, personal communication, 2002).

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ments were made public and included quantitative goals, the E&S survey could be an important resource not only for monitoring compliance, but also for measuring the outcomes of OCR enforcement efforts. For this to occur, the school districts with which OCR has negotiated partnership agreements would have to be routinely included among sampled districts in each administration of the survey. Litigation Exactly how often E&S survey data have been used by the public in litigation over students’ civil rights is unknown, but civil rights advocates estimate that E&S survey data have informed dozens, and possibly hundreds, of lawsuits over the years. The lawsuits have addressed issues of equitable access to public education for minority children and youth, those whose first language is not English, and children with disabilities. An important example of the use of E&S data in litigation occurred in the 1974 Lau decision of the U.S. Supreme Court; the data had been used extensively by the U.S. Commission on Civil Rights in a series of reports on the education of Mexican Americans (see Sotomayor, 1974). The reports were cited by the Supreme Court as an important basis for the recognition of the constitutional rights of Hispanic students (Lau v. Nichols, 414 U.S. 563, 1974). However, except for issues related to special education, litigation of education civil rights issues has become increasingly rare in recent years (Ryan, 2002; Paul Weckstein, director, Center for Education Law, personal communication, October 2002). For example, in the 1960s, the federal government provided funding to the Harvard Center for Law and Education to conduct analyses of education civil rights issues and to bring litigation to protect students’ rights. Federal funding supporting education civil rights litigation did not continue into the 1970s, although foundation support for such organizations as the NAACP Legal Defense Fund and the Mexican-American Legal Defense and Education Fund, which still include litigation among their civil rights advocacy activities, has continued to varying degrees. In addition to the withdrawal of federal funding, education civil rights litigation was affected by court rulings that have made it more difficult to bring class action lawsuits. Courts have been increasingly reluctant to accept plaintiffs’ claims based on the disparate impact clause of Title VI (Ryan, 2002). Although there are many educational policies and practices that have a racially disparate impact, Title VI disparate impact claims have been raised primarily in challenges to testing, tracking, and funding decisions that have a racially disparate impact (Ryan,

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2002). The first step of proving a racially disparate impact is usually not difficult. For example, plaintiffs making disparate impact claims related to highstakes testing must first show that the use of a test has a disparate adverse impact on a protected group. Evidence of statistical disparities, such as those often found in analyses of E&S survey data, typically is sufficient. Once the plaintiffs meet this evidentiary burden, however, defendants have the opportunity to demonstrate that the practice contested (e.g., a test) is an educational necessity—that it serves “the legitimate educational goals of the institution” (see GI Forum, 87 F. Supp 2d at 679, citing Cureton v. NCAA, 37 F. Supp. 2d 687, 697 [ED Pa. 1999]). Despite rather specific and stringent professional standards for fair and appropriate testing (American Educational Research Association, 1999; National Research Council 1999b), courts generally defer to school leaders’ claims about the educational necessity of testing and other challenged practices (Ryan, 2002). Thus, data documenting disparate impacts of various educational practices that can be derived from the E&S survey are relevant but generally have not been decisive.6 Finally, it should be noted that in 2001, the Supreme Court ruled in Alexander v. Sandoval that private litigants may no longer rely on Title VI’s implementing regulations in cases presented in a formal court of law, although they may continue to file complaints based on Title VI with the OCR (Losen and Welner, 2002). Except for a brief period during the late 1970s and early 1980s (U.S. Department of Health, Education and Welfare, 1978), the OCR has never published or broadly disseminated findings from the E&S survey. Data were made available on request to the public. Generally, requests for data have been for topics covered by the E&S survey for specific schools and school districts. There is no record of the number of requests for E&S data over the years, but it appears that E&S data were frequently requested and often used in school civil rights litigation during the 1970s and into the 1980s (Halpern, 1995). By the 1990s, however, the E&S survey had become close to invisible to most outside of the Department of Education, except for a small number of researchers and education advocates. 6   For a more complete discussion of criteria by which disparate impact claims concerning highstakes testing have been made, see National Research Council (1999c). For further discussion of litigation regarding racial disparities in special education, see Losen and Welner (2002).

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In 1996, OCR received about 15 requests per month for E&S survey data. The survey was so little used that in 1996, Norma Cantu, the Department of Education’s assistant secretary for civil rights, had tentatively decided to terminate it. However, after extensive discussions that included education advocacy organizations, she reversed her decision, and OCR made a commitment to update the content and improve the administration of the survey “to make it more useful” (Peter McCabe, Office for Civil Rights, personal communication, 2002). Among the administrative objectives was to reduce the amount of time required to make the data available from 18 months to 6 months and to make the data more readily available to the public. Another strategy to make the data more useful was to administer the survey in all school districts in the United States for only the second time in the history of the survey. This was done in 2000 to coincide with the administration of the census. OCR officials hoped that researchers would link E&S school data with neighborhood population data corresponding to school attendance boundaries, as well as to other datasets. It was hoped that researchers would then conduct analyses that would provide incisive and comprehensive overviews of the current state of education civil rights issues in the United States and how various school and nonschool factors interact in affecting equality of access to educational opportunities. By the spring of 2002, the number of requests to OCR for E&S survey data had more than doubled, to approximately 35 per month. More than half of these requests were coming from the press. Education advocacy groups, such as the National Coalition of Advocates for Students and its local affiliates, increasingly were informing the press about the existence of E&S survey data that were pertinent to local school problems that were receiving attention. Although demand for E&S data was increasing, OCR was still far from achieving the kind of visibility and access to the data that it desired. Informing the public about students’ rights is viewed by OCR as an important part of its mission and an essential tool for ensuring equal access to educational opportunities (Richard Foster, Office for Civil Rights, personal communication, October 2001). To this end, OCR maintains a very detailed website (www.ed.gov/offices/ocr) describing the mission of OCR, the civil rights laws it enforces, and examples of how enforcement of those laws affects students’ opportunities to learn. In the summer of 2002, OCR made E&S survey data, including data for individual schools and districts, avail

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able to the public on its website. In August 2000, during its third month of operation, the civil rights data page on the OCR website was accessed 1,858 times (Bernadette Adams-Yates, Office for Civil Rights, personal communication, 2002). No information has as yet become available on how these data are being used. (Although OCR’s efforts have made the data much more accessible, the software involved could be improved, a point we discuss in Chapter 4.) PUBLIC USE Another important use of E&S survey data is to promote informed democratic involvement in public education. To this end, education advocacy organizations such as the National Coalition of Advocates for Students (NCAS) use E&S survey data to inform and mobilize citizens’ involvement in their schools. Long before the E&S survey data became available over the Internet, organizations such as NCAS obtained the data from OCR to produce publications that inform parents and families about the level of access available to their children in local public schools (see Carmona, Wheelock, and First, 1998; National Coalition of Advocates for Students, 1998). In fact, NCAS, its affiliates, and other child advocacy organizations have been the primary consumers of OCR survey data over the years. Their publications include data-based education advocacy reports that contain qualitative and quantitative information about student achievement and school exclusion and how they relate to each other. These reports also compare the school experiences of minority children with those of their white peers. Advocacy groups have also provided the data to the press, who often write about the implications—including unintended negative consequences—of local school reforms. For example, NCAS has given priority to teaching local education writers how to access E&S data and use survey findings to inform substantive stories about local public schools. In September of 2002, NCAS mailed press kits to more than 600 members of the Education Writers Association that included Internet addresses for 2000 E&S district and school-level survey data. The writers were encouraged to contact NCAS and its member organizations to discuss the implications of these data. Similar efforts are made by other advocacy organizations, such as the Applied Research Center (see Gordon, 1998; Gordon, Della Piana, and Keleher, 2000; Johnson, Boyden and Pitz, 2002; ).

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An example of how widespread reporting of disaggregated data from the E&S survey has influenced school policies comes from Florida in the 1980s. When Florida media, using E&S survey data, reported that many Florida school districts routinely administered corporal punishment to 20 percent of their black students each year, a number of districts changed their disciplinary practices, and the frequency with which corporal punishment was used dramatically decreased (Joan First, director, NCAS, personal communication, 2002). RESEARCH USE Until recently, E&S survey data rarely have been used for academic research. A few researchers have used the data to analyze issues related to school desegregation (see, e.g., Farley, 1975, 1976, 1978; Farley, Richard, and Wurdock, 1980; Welch, 1987; Farley and Taeuber, 1974; Orfield, 1977, 1978, 1986, 1996; Orfield and Yun, 1999). The data also have been used to discuss racial disparities in special and gifted education (see, e.g., Harry and Anderson, 1995; Ford, 1998; MacMillan and Reschly, 1998; Oswald et al., 1999; National Research Council, 2002b). Recently, a number of publications associated with the Civil Rights Project at Harvard University also have used E&S survey data (see, e.g., Losen and Orfield, 2002a, 2002b; The Advancement Project and The Civil Rights Project, 2000; Orfield, 2001b). Because the OCR until recently has not publicized the survey nor disseminated even basic findings, many researchers have been unaware that the survey data exist. Some researchers who have been aware of the survey have had difficulty gaining access to the data in a format that allows for the use of a full range of analytical strategies. When access has been obtained, technical documentation has been sparse (see Chapter 4).