Baseball Crank
Covering the Front and Back Pages of the Newspaper
August 31, 2006
LAW: Is Requiring Basic Competence by Teachers Racially Discriminatory?

If you are tempted to wonder at why our public schools operate at such a disadvantage, two recent decisions by the United States Court of Appeals for the Second Circuit help illustrate the problem. In the first, Gulino v. New York State Education Department (2d Cir. Aug. 17, 2006), the Second Circuit reinstated a race discrimination suit against the New York State Education Department based on the theory that a test of "basic college-level content" that asks applicants to get just two-thirds of the questions right is racially discriminatory because it has a "disparate impact" on African-American and Latino teachers. The test, developed in response to a 1988 task force report on problems with teacher quality, is described at pages 11-13 of the opinion.

There are two immediate things that rub me the wrong way about this notion. First of all, isn't it racial bigotry to assume that lower pass rates for African-American and Latino teachers are because they are African-American and Latino, and therefore likely to persist indefinitely into the future? This isn't the 1870s, when it was reasonable and realistic to assume that black people were illiterate sharecroppers. If there are higher fail rates, that presumably is because African-American and Latino applicants are suffering from some intervening problem not caused by skills testing - i.e., bad schools in their own neighborhoods.

And second, why are those schools bad? In part because lawsuits like this one force the state to keep hiring teachers who lack basic competence in their subject matter. And where do you think those incompetent teachers end up teaching? There's your real disparate impact.

Instead of recognizing and deferring to the common-sense judgment that a test of basic educational competence is related to the job of being a teacher, the Second Circuit (relying, it must be said in the court's defense, in substantial part on Supreme Court precedents) sets a demanding test of empirical expert evidence before a public school can "validate" a test's relatedness to job performance. (The validation standard is discussed at pp. 36-48 of the opinion). The ridiculousness of this is exacerbated by the difficulty of finding an objective measure of teacher job performance. Nowhere in this process are schools allowed to excercise common sense in figuring out what makes a good teacher.

The second decision came yesterday in Guiles v. Marineau (2d Cir. Aug. 30, 2006), in which the Second Circuit rejected a school's effort to prevent a student from wearing a T-shirt with obnoxious political content:

The front of the shirt, at the top, has large print that reads "George W. Bush," below it is the text, "Chicken-Hawk-In-Chief." Directly below these words is a large picture of the President's face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oil rigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the "chicken wing" of the President nearest the cocaine, there is a straw. In the other "wing" the President is holding a martini glass with an olive in it. Directly below all these depictions is printed, "1st Chicken Hawk Wing," and below that is text reading "World Domination Tour." The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a "Crook," "Cocaine Addict," "AWOL, Draft Dodger," and "Lying Drunk Driver." The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor.

Slip op. at 3-4. The court, noting the Supreme Court precedents granting free speech rights to public school students in their attire but permitting some limitations on those rights in the case of "plainly offensive" speech, concluded:

While what is plainly offensive is not susceptible to precise definition, we hold that the images depicted on Guiles's T-shirt are not plainly offensive as a matter of law.

Id. at 16. On the law, this was probably correct, and of course I don't think this sort of concentrated moonbattery, silly as it is, should be illegal. But I fail to see what interest of society is served by letting school kids wear shirts with any sort of message to school. (I went to schools with uniforms and, in high school, a dress code that had no room for T-shirts). Granted, this particular incident came to a head on a class trip, but why schools should end up being embroiled in these sorts of controversies at all is beyond me.

Posted by Baseball Crank at 8:01 AM | Law 2006-08 | Comments (8) | TrackBack (0)

Letting kids wear political shirts to school is not a problem, particularly if it triggers discussion about current events. I don't recall a single conversation in high school during the 1980's about current events. If kids today are prone to read the newspaper and attend anti-war rallies, then that's a good thing. Schools are not prisons; that's why they sometimes have to become embroiled in these controversies.

As for the decision, hey, a plaintiff's lawyer cannot ask for a better panel. Its a thorough and scholarly decision and the court had no choice but to reach the result.

Posted by: steve at August 31, 2006 10:13 AM

I have no problem with the political aspects of the shirt, but isn't there a law against wearing anything that may promote drug use in schools? I think the image of the lines of cocaine might violate this.

Posted by: Jim Collins at August 31, 2006 12:16 PM

The fact that the shirt might promote or glorify drug asnd alcohol use was once of the school board's defenses.

it was rejected.

Posted by: Frank at August 31, 2006 12:35 PM

Interesting that the comments are more on the tshirts than the issue I think is more important: the court decision that sounds really racist to me.

I am totally against the No Child Left Behind Act, if only that it is legislating what a good school district already does, and what a poor one can't do anyway.

Public schools actually started not to educate the teeming masses of kids, but (and this is sadly true) was a place to put lots of kids with many parents dying in the newly growing cities, leaving packs of kids Oliver Twist like to run wild. In the so called good districts, schools educate kids in things that those parents consider important for their futures. In lousy districts, where parental involvment is much less (and this is dmeonstrably true), the schools focus much more on continuing to teach the 3R basics that is not reinforced at home. You want better schools? Make better parents, and don't let them assume teachers are babysitters. Then maybe we wouldn't have to get rid of tenure (sort of a reverse reserve clause). Although tenure is also ridiculous.

Posted by: Daryl Rosenblatt at August 31, 2006 12:36 PM

I'm with you Daryl (and Crank). I guess the court did what the precedents require, but that decision is pure sh*t for the students.

Tragic, really.

Posted by: Mike at August 31, 2006 12:46 PM

"Disparate impact" is a bizarre Constitutional theory straight from Marxist literature. Actually, I'm not even sure Marx was that strict: "From each according to his ability, to each according to his need" at least allowed for some variation in production and distribution based on varying ability.

Yet calling this a "racist" decision will excite nobody -- though perhaps technically "racist" (whatever that means these days), nothing that helps blacks or Hispanics can ever be "racist." What's frustrating to me is the assumption of group-to-group perfect equality, where if a proportional number of every racial demographic in America isn't "represented" everywhere else, that's evidence of white oppression and evil. I'm surprised the normally sober 2nd Circuit buys in. And has anyone stopped to wonder if the scores aren't lower because of inherent differences, a la The Bell Curve? Controversial, sure, but if those are the facts - and the data's piled awful high - then the difference is explained, and there is therefore no need to lower the bar for the rest of population.

Posted by: David Wilson at August 31, 2006 2:36 PM

I think "inherent differences" is more easily explained as cultural differences. I think of the old example, fill in "Cup and ____"
A. Table
B. Saucer
C. Chair
D. Door

The natural tendency is to say saucer (B) but if you either are not in a culture that uses saucers, or can't afford saucers, then you would say table.

It happened to me. I grew up in a small junior 4 apt in the Bronx, shared a room with my older sister. The room was really some kind of "formal" dining room, it had no closet, and a door was put in. My first semester in architecture school, we had to design a house. Since I never realized that in the US most bedrooms in houses (and apartments too, for the more fortunate) had closets, I only put one in the master bedroom. By that argument, I failed a test as well.

The stupid idea of leveling the playing field should mean everyone should get a shot at it, no guarantees involved. Public schools should be an extension of what we, as a society, decides it needs for its future growth and security. Maybe we should start teching Arabic in the classroom, for sure we should be teaching industiral arts again. Insurance companies have destroyed enough of our needs. I can say that we clearly have a need for machinists, plumbers and the like. We are churning out too many lawers and MBAs. A great entrepeneur has no real need for one, and 4 AM on a sunday, you are happy to see your plumber, not your lawyer.

Posted by: Daryl Rosenblatt at August 31, 2006 3:10 PM

I wish I owned a silk screen shop right about now. I could make a pretty penny printing up t-shirts with anything the kids want on them, just so long as there is a political message there too. I bet the Confederate Flag shirts would just fly off the counter.

Posted by: Jim Collins at August 31, 2006 4:53 PM
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