1
Introduction

Since the mid-1990s, local and state education agencies increasingly have emphasized the need to hold students, educators, and schools accountable for meeting high academic standards. With the passage of the No Child Left Behind Act in 2001, the need for accountability was confirmed again in federal law, as was the federal government’s commitment to ensuring equitable access to essential learning opportunities.

Historically, the Office for Civil Rights (OCR) of the U.S. Department of Education is the federal agency that has been charged with ensuring that all students—especially those in protected classes, as defined in civil rights laws by race, ethnicity, gender, religion, national origin, language, and disability (see below)—have equitable access to learning opportunities. In addition to monitoring complaints from students, parents, and other interested parties, the principal instrument that OCR has used to identify possible inadequacy of learning opportunities and resources is the Elementary and Secondary School Civil Rights Compliance Report, commonly known as the E&S survey.

The E&S survey was first administered in 1968.1 In the 35 years since then, profound changes have taken place in the nation and in its schools. For example, in 1968, only 16 percent of the U.S. population consisted of racial or ethnic minorities; by 2000, the percentage of minorities in the U.S. population had nearly doubled to 31 percent (U.S. Census Bureau, 2000), and nearly 4 in 10 school-age children were racial or ethnic minorities (National Center for Education Statistics, 2001). Not only has the minority population grown but it

1  

OCR administered a less elaborate survey that was the precursor to the E&S survey in 1967 (see Orfield, 1969).



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1 Introduction Since the mid-1990s, local and state education agencies increasingly have emphasized the need to hold students, educators, and schools accountable for meeting high academic standards. With the passage of the No Child Left Behind Act in 2001, the need for accountability was confirmed again in federal law, as was the federal government’s commitment to ensuring equitable access to essential learning opportunities. Historically, the Office for Civil Rights (OCR) of the U.S. Department of Education is the federal agency that has been charged with ensuring that all students—especially those in protected classes, as defined in civil rights laws by race, ethnicity, gender, religion, national origin, language, and disability (see below)—have equitable access to learning opportunities. In addition to monitoring complaints from students, parents, and other interested parties, the principal instrument that OCR has used to identify possible inadequacy of learning opportunities and resources is the Elementary and Secondary School Civil Rights Compliance Report, commonly known as the E&S survey. The E&S survey was first administered in 1968.1 In the 35 years since then, profound changes have taken place in the nation and in its schools. For example, in 1968, only 16 percent of the U.S. population consisted of racial or ethnic minorities; by 2000, the percentage of minorities in the U.S. population had nearly doubled to 31 percent (U.S. Census Bureau, 2000), and nearly 4 in 10 school-age children were racial or ethnic minorities (National Center for Education Statistics, 2001). Not only has the minority population grown but it 1   OCR administered a less elaborate survey that was the precursor to the E&S survey in 1967 (see Orfield, 1969).

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has become much more diverse and geographically dispersed. In the 1960s, the struggle for civil rights primarily was focused on segregation and other forms of discrimination against blacks— particularly in the South. By 2000, nearly 60 percent of the country’s minority population was Hispanic, Asian, and American Indian. Concerns about students’ civil rights had also expanded to include a broader range of issues, including equal learning opportunities for students with limited English capabilities, female students, and students with disabilities. This report examines the continued relevance and adequacy of the E&S survey as a tool for enforcement of civil rights laws in education, for monitoring equality of access to learning opportunities, and for research of other current issues of educational policy and practice. It provides recommendations on how the survey’s design, data collection, and analysis can be improved to enhance the survey’s value. THE COMMITTEE AND ITS WORK In 2002, the OCR, with the support of the Office of English Language Acquisition, asked the National Academies to undertake a study to examine how the E&S survey could more effectively measure student access to learning opportunities and how the resulting data might be made more accessible and useful both to those concerned with the protection of students’ civil rights and to the conduct of research. To this end, the National Academies’ Center for Education and Committee on National Statistics collaborated in the formation of the Committee on Improving Measures of Access to Equal Educational Opportunity to study the E&S survey and its uses. The committee’s charge was to oversee an evaluation of the E&S survey to determine whether it can be used to identify significant trends in the area of access to equal educational opportunity for all students and inform the work of the OCR and the Department of Justice; commission papers analyzing several issues covered by the survey, data permitting; comment on how the E&S survey methodology can be improved and/or augmented to provide new data and enhance its analytical and evaluative potential; and identify ways in which the E&S data can be linked with other datasets to provide a fuller context for analyzing issues related to

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access to equal educational opportunity. In order to address these issues, the committee met three times and commissioned five papers that are based on E&S survey data. The committee’s primary objective in commissioning these papers was to learn about the adequacy of the data for purposes of research, and the papers provide part of the evidentiary foundation for this report. Several committee members collaborated in the research and writing of these papers. Because of the short amount of time available, the committee decided that it would rely on the commissioned papers for the preliminary analyses of issues. The committee encouraged the authors to continue to pursue their research independently and, if warranted, separately publish more fully developed analyses. Synopses of the commissioned papers are provided in Appendix A. The committee also oversaw a basic analysis of data from the 2000 E&S survey. The 2000 survey is particularly noteworthy because, for only the second time in its 35-year history, it included data from virtually all public elementary and secondary schools in the United States, rather than from a sample of them. Selected findings from this analysis are presented in Appendix B; highlights of this material also are presented in Chapter 2. In addition to commissioning papers and overseeing a basic analysis of the data, the committee carefully examined and discussed the survey and each of the issues it addresses.2 The committee also heard from officials from the OCR concerning technical matters related to survey design, administration, and analysis, as well as the uses of the survey for purposes of enforcement and to inform department policies and procedures. The committee and its staff reviewed technical documentation for the survey provided by the department as well as available publications that are based on survey findings. The committee also interviewed individuals who have been involved with or are knowledgeable about how the E&S survey has been used at different points in its history. The committee’s 10 members brought to bear on these issues a wealth of experience and expertise representing a variety of perspectives, including researchers in the fields of education, sociology, economics, public policy, and political science; officials 2   The issues addressed by E&S survey items are reviewed in Chapter 2. The 2000 survey itself, including instructions and definitions, is provided in Appendix C. A more detailed examination of the complementarity of E&S survey items with data available from other Department of Education datasets is provided in Appendix D.

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from state and local education agencies; and the leader of a national student advocacy organization. This report reflects the committee’s consensus views on the survey’s strengths and weaknesses and on changes that would make the survey a more valuable information resource for civil rights enforcement, education research, and other efforts to ensure equitable access to learning opportunities. It is important to note that there are very few publications that discuss the E&S survey and surprisingly few published analyses of E&S data that have been produced either by the Department of Education or by independent researchers. Given these circumstances, the report is based primarily on the committee’s own evaluation of the survey, analysis of interviews we conducted, and our experience with and findings of the papers we commissioned. In Chapter 2 we review the features of the E&S survey that make it an important information resource for ensuring equal access to high-quality education. In Chapter 3 we discuss how the survey has been used by the OCR, by education advocates, and by education researchers, as well as possible new uses for it. In Chapter 4 we suggest changes that would make the E&S survey a more valuable information resource for OCR’s civil rights enforcement efforts, for parents who seek to ensure that their children’s schools provide them with the kinds of educational services to which they are entitled, and for researchers interested in investigating more complex issues than those for which data from the E&S survey traditionally have been employed. Chapter 4 also discusses strategies for increasing the utilization of the survey by the public and by researchers. In Chapter 5 we conclude with a summary of our conclusions, our recommendations, and a discussion of promising new uses of E&S survey data. CIVIL RIGHTS LAWS AND THE E&S SURVEY The Survey’s Origins: Title VI and School Desegregation A civil right can be defined as an enforceable right or privilege, which if interfered with by another, gives rise to an action or injury. The framework for defining the civil rights of Americans is laid out in the U.S. Constitution and Bill of Rights, the Thirteenth and Fourteenth Amendments, and in various laws that have been enacted over the years. One of the earliest and most important of these laws for the enforcement of civil rights in schools is the Civil Rights Act of 1964. Title VI of that act became a powerful tool used by the OCR to

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desegregate schools. The OCR initially developed the E&S survey exclusively to support that objective. School desegregation has been described as the cornerstone of the modern civil rights movement (Taylor, 1971; Edley, 2002, p. 126), and it was one of a handful of social issues that defined much of the latter half of the 20th century in the United States. Indeed, the period from the late 1950s into the 1970s is increasingly referred to as the civil rights era (DeFrancis, 1998; Gregg and Leinhardt, 2002) and is the subject of many history courses being taught in colleges around the country. The origins of civil rights enforcement related to education are rooted in the Supreme Court’s 1954 decision in Brown v. Board of Education. The Supreme Court ruled in that case that segregating students by race in different schools was a violation of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Informed by research and testimony on the role of segregation in maintaining the South’s Jim Crow system of allocating privilege on the basis of race (Myrdal, 1944; Clark, 1963; Kluger, 1976; see also National Research Council, 1989), the Supreme Court ruled “separate educational facilities are inherently unequal” (347 U.S. 495, 1954). Despite the forceful language of the Brown v. Board of Education ruling, progress in implementing the ruling was slow, and partly in response, Congress passed the Civil Rights Act of 1964 (Orfield, 1969; Halpern, 1995; Ferguson and Mehta, 2002). Title VI of that act provided the OCR and its predecessor agency, the Equal Educational Opportunity Program, with the statutory authority and a powerful administrative tool for school desegregation. OCR’s efforts to enforce Title VI played a pivotal role in fostering the substantial progress that was made toward school desegregation in the late 1960s and early 1970s (Orfield, 1969; Rabkin, 1980; Halpern, 1995; Glennon, 2002). OCR used the E&S survey to provide quantitative documentation of ongoing problems with segregation throughout the country and to monitor the progress of districts under court-ordered desegregation plans and of districts with which OCR had negotiated desegregation consent agreements (U.S. Commission on Civil Rights, 1969; Orfield, 1969). Title VI states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (PL 88-352 Title VI, Section 601). Title VI provides OCR and other federal agencies with the authority to

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deny federal funding to state and local government entities, including school districts that discriminate on the basis of race, color, or national origin.3 Language specifying OCR’s authority under Title VI to collect information (i.e., through the E&S survey) that is needed for the law’s implementation appears in the Code of Federal Regulations.4 Prior to the creation of the E&S survey, the federal government did not systematically collect racial data in education. Many school districts either did not collect the data or refused to make them available. The E&S survey made it possible for the first time to precisely monitor patterns and trends in segregation and, later, other civil rights issues related to race and ethnicity—a capability that is necessary, although not sufficient by itself, to civil rights enforcement (Orfield, 2001a, 2001b).5 Federal court rulings on desegregation have always relied on judicial findings of violations that produced illegal segregation. During the 1960s 3   Prior to 1965, even this important regulatory tool would not have been very effective because the federal government provided very little funding to local school districts. This changed, however, in 1965, with the enactment of legislation that created two important federally funded programs—Head Start, the early childhood education program, and Chapter I (Title I) of the 1965 Elementary and Secondary Education Act, which provided federal financial aid to lowincome schools (Orfield, 1969, p. 45; Halpern, 1995, pp. 45–46). 4   Information is collected in the E&S survey pursuant to 34 C.F.R. Section 100.6(b) of the Department of Education regulations implementing Title VI of the Civil Rights Act of 1964. “Each recipient shall keep such records and submit to the responsible Department official or his designee timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible Department official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. For example, recipients should have available for the Department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of and participants in federally-assisted programs. . . . Each recipient shall permit access by the responsible Department official or his designee during normal business hours to such of its books, records, accounts and other sources of information, and its facilities as it may be pertinent to ascertain compliance with this part.” Requirements also are incorporated by reference in department regulations implementing Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973. 5   Title VI also led to the creation of an OCR-administered survey on the racial and ethnic composition of colleges and universities. Responsibility for the collection of these data later was transferred to the National Center for Education Statistics’ Integrated Postsecondary Education System and its fall enrollment and completion surveys (see http://nces.ed.gov/Ipeds). Also, responsibility for the collection of data on the racial and ethnic composition of elementary and secondary teachers and administrators that were initially collected through the E&S survey later was transferred to the Equal Employment Opportunity Commission, which collects this information at the district level through its EEO-5 survey (see (http://www.mimdms.com/EEO5.html).

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and early 1970s, violations were very easy to show in cases that addressed school segregation in 17 southern and border states where segregation was required or authorized by law. Elsewhere, with some exceptions, school segregation was determined to be “de facto”—i.e., the product of segregated neighborhoods (Orfield, 1969, 1978). However, the Supreme Court ruled in the 1973 Keyes case that, in school settings outside the South, an entire school district could be presumed to be illegally segregated once the plaintiffs had proved that there were acts of intentional discrimination that affected a significant portion of the district. The Keyes decision extended remedies both to school districts outside the South and to Hispanics, whose segregation had not been addressed in Brown v. Board and related decisions (Orfield, 1978). Only a year later, progress in desegregating schools was slowed when a closely divided Supreme Court decided in the 1974 Milliken v. Bradley case that urban desegregation plans could not include suburban districts except in very exceptional circumstances. The Court’s ruling in Milliken v. Bradley substantially ended major desegregation efforts in many of the largest metropolitan areas, except those with countywide districts that primarily were located in the South and the West, such as Louisville, Kentucky (Orfield, 1996; Rebell, 2002). Then, in 1977, Congress passed an amendment to the 1964 Civil Rights Act that prohibited OCR from requiring school districts to use busing as a strategy to desegregate schools; this further reduced OCR’s ability to carry out its original mandate to desegregate schools by enforcing Title VI (Halpern, 1995, pp. 154–160). Finally, the 1981 termination of the Emergency School Aid Act, which was used to implement the provisions of the federal desegregation aid program, further curtailed OCR’s effectiveness in promoting desegregation (Orfield, 2000). Together, these events greatly diminished OCR’s role in promoting school desegregation. Nevertheless, OCR has continued to use the E&S survey to monitor the racial and ethnic composition of schools in hundreds of districts with which it previously had entered into settlements as well as in other districts that have remained under court-ordered desegregation plans. Other Title VI Enforcement Issues Although desegregation is no longer a focus of OCR civil rights enforcement activities, the E&S survey continues to play a role in OCR’s enforcement of Title VI. With information routinely gathered from the E&S survey, OCRinitiated compliance reviews, and complaints submitted by parents and other concerned parties, OCR monitors

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for and acts on a wide variety of possible violations of civil rights under Title VI (U.S. Department of Education, Office for Civil Rights, 1999), including: disciplinary policies and practices, ability grouping, access to language services by English-language learners,6 interdistrict student transfers, student assignment policies, including to gifted and talented programs, racial harassment, and academic grading. Other Civil Rights Laws and the Evolution of the E&S Survey Section 504 In addition to Title VI, OCR also is responsible for ensuring equal educational opportunity and protecting students’ civil rights based on other laws. Chief among these is Section 504 of the Rehabilitation Act of 19737 that bars discrimination on the basis of disability. With the support of information derived from the E&S survey, OCR addresses the following issues pertaining to students with disabilities: teaching students in the least restrictive environment consistent with their educational needs, suspensions and expulsion of students with disabilities, appropriate special education services, academic adjustments and modifications, and auxiliary aids for students with impaired sensory, manual, or speaking skills. Title IX OCR also monitors and addresses issues related to gender equity under the authority of Title IX of the Education Amendments of 1972,8 including: 6   After the Supreme Court’s ruling in Lau v. Nichols in 1973, ensuring the education civil rights of language minority students was added to OCR’s Title VI enforcement responsibilities. 7   Section 504 of the Rehabilitation Act of 1973 requires that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (see http://www.ed.gov/offices/OCR/docs/placpub.html). 8   Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (see http://www.ed.gov/offices/OCR/dox/tix_dis.html).

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equal opportunity in interscholastic sports, treatment of students who are pregnant, and access to and placement in various school programs. See Appendix C for the specific items on the E&S survey that address issues covered by Title VI, Section 504, and Title IX. OCR AND EDUCATION AS A CIVIL RIGHT IN THE 21ST CENTURY The mission of the Office for Civil Rights is to ensure equal access to a high quality education for all students through the vigorous enforcement of civil rights. (U.S. Department of Education, Office for Civil Rights, 2000a, p. 1) Current efforts to ensure equal access to learning opportunities and resources are not as visible to the public as efforts to end segregation in the civil rights era. Nevertheless, equal access to a high-quality education remains an essential civil right under both federal and state laws (Rebell, 2002).9 OCR received 4,897 civil rights complaints in 2000. Advocates for students’ civil rights report that persons filing complaints sometimes use E&S data when filing complaints. A majority, 55 percent, involved students with disabilities under Section 504 (U.S. Department of Education, Office for Civil Rights, 2000a); 18 percent of complaints (870) alleged discrimination on the basis of race or national origin (Title VI); allegations of sex discrimination under Title IX accounted for 8 percent (396) of complaints; and 11 percent (539) of complaints alleged discrimination under multiple laws, such as the inappropriate assignment of minority students to special education (both Title VI and Section 504). In 2000, OCR reports that 2,000 school districts and institutions of higher education changed their policies, procedures, or practices to comply with federal civil rights laws as a result of OCR intervention (U.S. Department of Education, Office for Civil Rights, 2000a). Data from the E&S survey also can be used by parents and other citizens, who may pursue grievances against their local schools independently of OCR. 9   The mission statement of the Office for Civil Rights refers to ensuring “equal access to a high quality education” through the enforcement of civil rights laws such as Title VI (U.S. Department of Education, Office for Civil Rights, 2000a). In addition, nearly all state constitutions cite the state’s responsibility to establish a system of “free and common schools” to provide students with “a thorough and efficient education,” “an adequate public education,” or an “ample education” (Rebell, 2002, p. 232).

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These data concerning OCR enforcement activities, as well as information presented in Chapter 2 and in Appendixes A and B of this report, suggest that violations of students’ civil rights are not uncommon and that major disparities in access to various kinds of learning opportunities remain. The E&S survey is the only vehicle now available to identify many of these disparities. OCR reports that it uses the survey data, in conjunction with citizen complaints and other information, to decide whether potential problems in specific schools and school districts may require further investigation. As is discussed below, others also use E&S survey data to identify disparities in access to learning opportunities and resources. The consequences for students’ inability to have access to a high-quality education may be as serious as they were during the civil rights era because of the dwindling number of well-paying jobs requiring little education (see Moses and Cobb, 2001). For example, as recently as 1979, male college graduates earned only 29 percent more than male high school graduates and 57 percent more than male dropouts. By 1999, the earnings advantage of male college graduates over their high school graduate and dropout counterparts had increased to 68 percent and 147 percent, respectively. The real wages of male workers with only a high school education or less have fallen steadily in the past 20 years (Council of Economic Advisers, 2000, pp. 135–136).10 Students attending predominantly minority, high-poverty schools are particularly at risk of not getting the kind of education that will prepare them for the 21st century workforce. These students, on average, are much less likely than others to graduate from high school (Neild and Balfanz, 2001; Roderick and Engel, 2001), and they have substantially lower test scores (Lippman et al., 1996; Puma et al., 1997; Balfanz et al., 2002). Based in part on an analysis of data from the E&S survey, Orfield (2001b) found that in schools in which 50–60 percent of the students are black or Hispanic, on average, at least 60 percent of the student population are poor. In schools in which at least 80 percent of the students are black or Hispanic, on average, 80–90 percent of the students are poor (Orfield, 2001b). Although it is methodologically difficult to differentiate the effects on learning outcomes of poverty and other factors associated with students’ neighbor 10   Real wages of female high school graduates and dropouts have dropped much less than those for their male counterparts because such women historically have been much less likely to hold well-paying jobs (see National Research Council, 2002a, p. 16).

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hoods and families from those of schools (see Halpern-Felsher et al., 1997), data from the E&S survey and other sources (see Darling-Hammond, 1997; Adelman, 1999; National Research Council, 1999a; Farkas, 2002) provide evidence that students in high-poverty, segregated schools have less access to learning opportunities and resources than other students (see also Chapter 2 and Appendix B). Some of the resources and learning opportunities to which students are guaranteed are stipulated by law (e.g., educating students with disabilities in the least restrictive environment consistent with their needs). For most issues, however, the courts and education civil rights laws provide more general guidance on the meaning of equal access to learning opportunities and resources. The emergence of new educational policies and practices and ongoing research on their educational effects and possible civil rights implications periodically have led to the appearance and disappearance of various items on the E&S survey. The E&S survey produces important information about disparities among students of different backgrounds that may suggest unequal access to learning opportunities and resources. Data from the E&S survey can be used to help identify schools that may be denying students equal access to educational opportunities and resources, as defined by the civil rights laws on which the survey is based. School administrators are required by law to maintain and accurately provide the information elicited by the survey to support the enforcement of the civil rights laws. By themselves, statistical disparities associated with race, ethnicity, language, gender, and disability status identified through the E&S survey, such as those presented in Chapter 2 and Appendix B, do not necessarily prove that discrimination has occurred or that students’ civil rights have been violated. Statistical associations among variables on the E&S survey can reflect possible violations of the law that should be addressed by OCR, the unintended negative consequences of educational policies and practices, the indirect effects of discrimination in housing or employment, other forms of social inequality, or the combined effects of all of the above. Data from the E&S survey could be linked with other datasets in ways that could address questions of causality (see Appendixes A and D). However, the hierarchical structure of the survey itself is a powerful resource for pinpointing the specific schools and districts where problems may be occurring. The fact that E&S data are required to be submitted from such a large sample of schools, many of which are surveyed every two years, can

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provide a degree of specificity to the analysis of salient issues that would not otherwise be possible from voluntary surveys administered to a much smaller sample of schools. Whatever the cause or causes, evidence of disparities among groups of students is information that is useful not only for civil rights enforcement, but also for informing efforts to achieve the twin goals of educational excellence and equity, as articulated in the No Child Left Behind Act. The E&S survey’s capacity to provide disaggregated information about the distribution of various kinds of disparities for categories of students identified in civil rights laws, and to do so for specific, identifiable schools and districts, is a useful starting point for more comprehensive analyses of the underlying causes of inequality. This information is important not only for civil rights enforcement by OCR, but also for use by parents and other concerned citizens with civil rights concerns or who seek to improve educational opportunities and outcomes for children.