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Earmenter, Tom, Ed.Title I and Parent Participation. Inequality inEducation, Number 6.Harvard Univ., Cambridge, Mass. Center for Law andEducation.Cct 7035p.

EDRS Price MF-$0.2E BC -$1.85*Community Control, Community Involvement, *FederalLaws, legal Problems, legal Responsibility, *ParentParticipation, Political Attitudes, *PoliticalIssues, Resource Allocations, School Integration,Special EducaticnCenter For Law And Education, *Elementary SecondaryEducation Act Title I, Harvard University

In this special issue cf "Inequality in Educaticr",ESEA Title I and parent participation are the central themes. Theleading article describes Title I actions in Calais, Maine, andProvidence, Rhode Island. The problems in both these towns appear tobe quite different from those in large, industrial cities. Thecommunity which would benefit from Title I often seems apathetic anduninterested. The article raises the issue of the organization of the"invisible poor" of small towns, the question of education as anorganizing issue, and the suitability of litigation as a solution tocomplex policy issues. The other central essay concerns bureaucraticpolitics and poverty politics. It is concluded that Federal and Stategovernments have little control over Title I spending; local schooldistricts are virtually free to meet their own priorities. It issuggested that groups have more 'Lay about expenditure of federalfunds. In addition, this issue of the magazine includes a section cffeature reports on research, litigation, government action, andlegislation concerning education and the law. Such topics as schoolintegration, resource allocation, special education, equalprotection, community control, and student rights are discussed.(Author/J14)

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Special Issue: Title I and Parent Participation

U.S. DEPARTMENT OF HEALTH, EDUCATION& WELFARE

OFFICE OF EDUCATIONTHIS DOCUMENT HAS BEEN REPRODUCEDEXACTLY AS RECEIVED FROM THE PERSON ORORGANIZATION ORIGINATING IT POINTS OFVIEW OR OPINIONS STATED DO NOT NECES-SARILY REPRESENT OFFICIAL OFFICE OF EDU-CATION POSITION OR POLICY

INEQUALITY IN EDUCATIONNumber Six

Center for Law and EducationHarvard University

c7. POWER TO THE PEOPLE1LA THROUGH TITLE I? Maybe.

by Tom Parmentercp CALAIS, Maine "I spent a dozen years in Newcl York and I envisioned this place as Utopia, but

j when you get here, you find all the things youthought you were leaving in the city right here in adifferent form: violence, corruption, preju-dice." George S. Johnson, Esq., Pine Tree LegalAssistance.

PROVIDENCE, Rhode Island "Communityparticipation has been very successful in this state.

We've only had trouble with one committee, theone in Providence; it just seems to have sprung upfrom nowhere, making demands." State Title Iofficial.

Schools in both these cities are defendants inTitle I actions. School officials in both cities aretroubled, not only by being asked to defend incourt their use of federal funds, but also at seeinglocal poor people abandon silent acquiescence to

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the decisions of experts, i.e. themselves.Officialdom in general has become accustomedduring the past decade to the shock of beingdirectly confronted by their poor clientele withthe results of the decisions. This is all very newand very unpleasant to educators who, secure inthe belief that the complexities of educationprotected them from embarrassing questions, havesuddenly found themselves being asked some veryembarrassing questions indeed, such as: "What didyou do with our Title I money?"

But there is such a thing as expertise; there isat least expertise in talking to experts; and that ispart of the lawyer's expertise. Lawyers can servetheir communities in many ways, by helping withdivorces and wills, by representing demonstratorswho have been arrested, by advising on strategyfor building the community's power, by guidingthem through the maze of baffling regulations andmore baffling decisions in such complex areas aswelfare and education. But the very expertise thatmakes this help possible can, if it is not temperedwith deference to the wishes of the community ora strong urge to build the community's self-confidence, keep the community away from theaid available from lawyers.

Distaste for OutsidersAn examination of experiences in Calais and

Providence may make this problem clearer forlawyers who wish to help their communities, and,in particular, for those who are interested in

education as an organizing issue.

Perhaps the most striking similarity in thetwo towns is the horror with which school peopleregard any intrusion into their affairs, whether inthe form of a lawsuit, polite inquiry, a sit-in, ornothing more than a Title I Advisory Committeetrying to give some advice. Mrs. Patricia Overberg,chairman of the Providence Advisory Committee,is particularly proud of a court victory in one ofher first skirmishes over Title I, "Briggs is stillbitching about getting an injunction on his firstday as superintendent." In Calais, one of the sideeffects of the Title I suit was a growth of interestin a day-care center. A local school principal wasasked to serve on the board, but resisted strongly."He couldn't understand how we could beinterested in helping pre-schoolers if we werefighting the school board on Title I. And he's oneof the progressives," George Johnson, the attorney

2/INEQUALITY IN EDUCATION

bringing the suit, said. "I've been tagged as anenemy of education for suing the school board."

This distaste for being disturbed by outsiderssometimes boils over into hysteria. Richard Briggs,the Providence superintendent, wrote Mrs.Overberg threatening to call the police if she wasresponsible for another "invasion of my privacy."In this case, the invasion was a letter of inquiryaddressed to his home. Letters to his office hadgone unanswered. Brigg's letter with copies tovirtually every school employe and parentinvolved in any way with Title I went on tomake (or almost make) a more serious charge: "Ihave had all the threats from individuals inProvidence that I intend to take. My automobilehas been damaged, my children have sufferedverbal abuse over the telephone and my son hasbeen assaulted. If this is your idea of a typicalcommunity, I must disagree and indicate mystrong feeling that it suffers from a serioussickness." Nothing quite so serious has happenedin Calais, but a meeting of the state's CommunityAction Program directors on community partici-pation in Title I was seriously disrupted by stateeducation officials who managed to get themselvesinvited and then refused to leave without a votefrom the group.

The point here is fairly obvious. Even theslightest effort directed at making school officialsaccountable for their actions is likely to be inter-preted by them as an assault on themselves as wellas on the system they serve. It doesn't matterwhether their reactions stem from feelings of guilt,delusions of professional immunity, confusion ofidentity between themselves and their institutions,or genuine concern that divided authority will leadto a reduction in educational quality. Given theappropriate situation, the educationist's tendencyto get up tight can be a valuable asset to thecommunity. These overreactions should beexpected. When they come, the community canexploit, for ordinarily they are either insulting tothe community or likely to diminish the esteemwhich ordinary people ordinarily feel for expertauthority. Overberg was able to use the superin-tendent's innuendoes against the community towin the support, or at least the neutrality, of localpeople who otherwise would have been indifferentor opposed to her efforts to increase communityinvolvement in Title I. In Calais, Pine Tree LegalAssistan, - had been routinely advising its clients

to apply for free or reduced-price hot schoollunches when they were eligible. The schools,which had been charging the full rate to everyone,simply dropped the lunch program when too manypeople began asking for lower costs. This sort ofwhiff-of-grape, taste-of-the-lash response can, ofcourse, immobilize a community, but the amountof harsh community punishment the schools canmete out without becoming completely ineffectiveis limited, and the greater the community'sinterest, the lower these limits will be. And suchdrastic actions are useful themselves as organizingtools; they show the community where it stands inthe eyes of the schools and shows it the necessityof banding together for self-protection.

Title I, ESEA, has qualities that make itparticularly suited to the needs of communityorganizers. These are discussed in detail inInequality in Education, Number Five, and willsimply be alluded to here. The money isdesignated for poor people. Community partici-pation, while by no means mandated by the Actand certainly not actively promoted by those whoadminister the funds, is still an approvedcomponent of a well-run program. Further, theschools need the funds and will be reluctant togive them up, even in the face of communitypressure to spend them as they are supposed to bespent. Title I has had generally satisfactory effectson community organization both in Calais and inProvidence. In Calais, Pine Tree Legal Assistancewas looking for community organization andfound Title I; in Providence, one woman set out tofind Title I and ended up with communityorganization.

Ignored by Norman Rockwell

Calais, Maine, has wide tree-shaded streets, abandstand in the park, yellow stop signs, atwo-story, three-block downtown, and lots offreckle-faced, sandy-haired kids, but somehow youcan't see the 40 per cent of the people living belowthe poverty line, 30 per cent unemployment, theunaccredited high school, the people betweeneighteen and thirty-five who just aren't there anymore. If the Saturday Evening Post were still beingpublished, Norman Rockwell might make quite awarm and charming cover picture of classes beingheld in the gym while the band practices at theother end. He could do another, nostalgic andstrong, of Calais's poor people at work (if they canget it), digging clams, lobstering, chopping down

trees, stitching shirts, packing fish. NormanRockwell is painting covers for Ramparts thesedays, but the people who run Calais seem to figurethat if they hold the pose long enough he'll comeback to them.

Pine Tree Legal Assistance opened its officein Calais a year ago. It has two attorneys, onedealing with the legal problems of the Passama-quoddy, a state-owned-and-operated Indian tribe,the other, George Johnson, responsible forproblems of the white poor.

"I got my foot in the door in this com-munity with divorces and a lot of non-legal work. Istayed away from class actions and test cases for a

long time," Johnson says. "I concentrated onthings like Alcoholics Anonymous and free eye-glasses. People got to know that when they camehere we'd be around. Then I began looking aroundfor something that would help me organize thecommunity." His first try was welfare. He invitedan already organized welfare group from down-state to attempt to get the community interestedin a plan to raise welfare payments by 23 per cent,but in Calais people hide their "commodity" foodand don't like to have it known that they receiveAFDC payments. Welfare workers told people thatjoining an organization would mean a cut inpayments. An organization resulted, but not onewith staying power and not one that was inter-ested in anything beyond its narrow view ofwelfare.

An attempt to organize an overtly politicalrepresentation of the poor for the town meeting(which is still a politically viable phenomenon inthis part of the country) was even less successful.

In this issue

Power to the People through Title 1 1

Title I: Bureaucratic Politics andPoverty Politics 9

Notes and CommentaryIntegration 16Resource Allocation 18

Special Education 20Equal Protection 21

Community Control 22Student Rights 23Title 1 27

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No one was interested in getting together to pushfor a dental clinic. Proposals for a community-runday-care center met with apathy.

The first flicker of interest from thecommunity was in response to harsh enforcementof school rules, particularly the dress code. Winterdays can be thirty-below in Calais, but the dresscode prohibited slacks for girls. A group ofstudents began to be organized under the eye ofPine Tree with the hope that the restrictions couldbe eased. On one of those thirty-below mornings, aleader of the dress-code group was in a smallcrowd outside the high-school door. They hadarrived before the official school opening time,which they knew, but which a teacher hadexplained to them by yelling through the closeddoor. Coming to the door was a mistake, risingexpectations and all that. The students weren'tquite so full of the necessity of maintaining therule as the teacher was. They wanted to get warmand all they knew was that the teacher was in aposition to open the door. They began yelling inunison, "Open the door! Open the door!" Thedoor was opened, but only to identify the ring-leaders. The cold impelled the students inside thedoor and the teacher was brushed aside. She hadbecome by this time quite frightened. She seemedabout to burst into tears and one of the students,the dress-code agitator, tried to pat her on theback, to comfort her and apologize to her. Thatwas the last straw, unfortunately, and the teacherran to barricade herself in the principal's office.All participants in the storming of the doors weresuspended, several for long periods. The studentwho "attacked" the teacher was attending schoolon a contract his rural district had made withCalais to provide high school to its children, andwas banned permanently from the system. Thedress code was dropped, but not until appropriatetime had passed.

At about the same time, Johnson was takinga more direct role in school affairs. He had helpedreorganize the moribund Parent-Teachers Associa-tion and had seen it pass a resolution questioningthe lack of accreditation. Johnson had beguntalking about Title I at the meetings. Finally, whenthe school board refused to explain adequatelytheir spending of Title I funds, the PTA gotinterested enough in the way the schools werebeing run to put up a write-in candidate for thethree-member school board. A member of the city

4/INEQUALITY IN EDUCATION

council resigned to run against her, but wasunsuccessful. She won by a small margin, and afterriding out a court challenge by the other twoboard members, she was seated. The final resultwas disheartening, however. The other twomembers of the school board the personnelmanager from the shirt factory and a paper-millexecutive, two of the largest employers in thecounty usually manage to work things outbetween themselves before the school boardmeets. And since all three board members werenamed as defendents in a Title I action broughtshortly after the election, she felt betrayed by hersupporters and no longer trusts them, particularlyJohnson.

Title I Litigation

The Title I violations alleged are of the usualsort, stemming largely from the notion that adollar is a dollar and that strings can't andshouldn't be attached to money. A local schoolprincipal complains: "I can't see getting a lot ofmoney and building a building and filling it withequipment and then hanging a sign on the doorthat says, 'Poor Kids Only.' " And he really can'tsee it. The Calais school system is pressing thelimits of its taxing power; a town full of poorpeople is a poor town. It needs every dollar it canget. And the idea that being poor is a specialburden worthy of special consideration is alien.And the poor people in Calais don't really knowhow to explain it.

It wasn't easy to sell the idea of the suit tothe few poor people who had had their interest ineducation aroused. "People up here are incrediblynaive about their rights and very respectful of theirlocal government. You can go after the state orfederal government, or even business, but not thelocal government," Johnson said. "We had toconvince them we weren't looking to put anybodyup against the wall. They finally decided there wasnothing wrong with asking someone to conform tothe law."

In the course of building public support forthe suit, Pine Tree was challenged to help start aday-care center. "I was sort of pushed into daycare," Johnson said. "They said if I was reallyinterested in helping children and not just in beinga lawyer, I would help them start a day-carecenter. Well, we did, with a private donation of$2500 and a good deal of work. It will involve as

high a percentage of poor people in the staff andmanagement as possible. I'm trying to get out ofit. People have a tendency to ask questions andlook at me. I quit going to meetings once thissummer, but everything began to slow down andiose direction so I'm back to going to meetings fora while."

Community participation in Calais is likethat, it seems. Reviving the PTA was one start, butreally a middle-class start. Poor people don't liketo go to meetings; "They all wear gloves and hatsand veils like they were going to church," onemother said. The write-in election was a start, buta very limited one. The dress-code agitation, theTitle I suit, the day-care center, are all starts, butthey scare away almost as many people as theyattract. "Lots of people still think Pine Tree is partof the state welfare department, but we're alsoknown as the hippie lawyers," Johnson said. Hehas a beard.

If the suit succeeds, the Title I program willbe run with community participation for the firsttime, or it may be closed out. This year's appli-cation was one-third smaller than last year's. Ifcommunity participation in Title I succeeds, thereare other issues for the community to consider.

Discipline: "You can walk into any schoolaround here, even where there are eight or tenclasses going and literally hear a pin drop. Theyvalue quiet above all. One district fired the wife ofa Pine Tree attorney from a teaching job. 'Ipersonally feel that your philosophy of pupilcontrol leaves much to be desired,' the superin-tendent wrote her. All she was doing was lettingthem make a little noise and not bringing out theruler for every slight infraction. Now she's runningan alternative school, twenty kids and twoteachers."

Lunch: "They said they were dropping thehot-lunch program because the facilities wereinadequate. They were inadequate, almostcompletely inadequate, but until we startedpressing them on providing free or reduced-pricelunches for the kids who were supposed to getthem, they seemed to think the facilities wereadequate enough. But now, instead of just thepoor kids coming to school in the middle of winterwith a couple of sandwiches, every kid will bedoing it. Of course, they won't be able to punishkids by taking away their lunch privileges

anymore. Not that the privilege amounted tomuch. They used to have the hot food in the gymand then drink their milk in the hall waiting forthe bus to take them back to their school. All thekids in town were served at the high school. Theygave them twenty minutes to do it all in. But nowthey have nothing at all."

Quality: "The high school is one of twounaccredited high schools in New England, butsince only eight-ten kids a year go on to college,they don't seem to care, or maybe they just can'tpay for the facilities they need on the money theyget; I don't know. The vocational high school is nobetter. They offer boat building and autorepairing. Since you have to go somewhere else tobe a boat builder, there are no yards here, andsince you can be an auto mechanic anywhere andthere are already plenty here, they are justperpetuating the exodus of young people."

But for all that, community participation inCalais is a feeble thing, involving a sum total ofperhaps three or four dozen families in one way oranother. Most of the community participants haveto be regularly bolstered and encouraged byJohnson and community conservatism is endemic.Even so, Johnson says, "Schools were the onlything they were really willing to stand up and fightfor because they were emotionally involved. It'sthe children. We have a great deal of communityparticipation now relative to what was before,which was nothing. But militancy is an urbanthing, it seems."

Tough Talk in Providence

So it does seem. "When I was picked aschairman of the Title I advisory committee, Iknew nothing about politics and nothing abouteducation. I didn't even know what Title I was.The first thing they did was take me toWashington. They figured if they showed me agood time I'd be a good parent. They've neverdone it since for anybody except themselves."Nobody talks like that in Calais. The speaker isMrs. Patricia Overberg, Pat Overberg, chairman ofthe Title I Parents Advisory Committee ofProvidence, Rhode Island, and enemy of theeducational establishment. "There isn't anythingthey can do to shut me up. They tried giving me apicayune job, the kind they use to buy off poorcommunity people. I told 'em that I was acommercial artist and if I had to go back to work

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it wasn't going to be for a piddling $1.60 an hour.They told me, 'You can fight the system so muchbetter from within. You can change it if you workhere.' I told them what I thought of that.

"They pass out jobs that pay a little morethan welfare and give them that small smidgen ofindependence that they can't get on welfare andthen without their even knowing it they've soldout their community."

Pat Overberg is friendly and garrulous, self-confident, an enthusiastic fighter. She is poor butnot downtrodden. She has some college educationand a good trade. She is in this business becauseshe believes in it and because it suits her style.

She has been educated in fighting theschools by the schools themselves. "At my firstmeeting as a parent advisor I learned that Title Iwas for children from five to seventeen. Then atmy second meeting all they talked about wasspending Title I money on adult education. Therewas disagreement, but not over spending themoney on adults. I hopped up and said if there areonly supposed to be children in the Title I pro-gram, it seems to me you'd be breaking the law.That stopped the adult-education thing, but notone of those experts and professionals hadmentioned the law all day. That started methinking."

She returns to the theme often. "Adminis-trators and politicians are doing all this organizing,not us. If they were doing the jobs they wereelected and appointed to do, there wouldn't beany dissension, any rabble rousers, any left, anycommunity organizers." Not that she thinksadministrators and politicians will ever see it herway. "You have to have angry people to organize.If they're not angry, show 'em something to getangry about. You'll find something, Title I is

something to get angry about."Building on Paranoia

But for almost two years, she was the onlyperson in Providence who was angry about Title I,unless you count the school people who wereangry at her. For months at a time she was theonly parent at advisory committee meetings. Otherparents on the board were pars- professional schoolworkers. "One thing about paid personnel, if theydon't get paid for coming to a meeting, they don'tcome. Besides that, they worried about theprogram because it paid them and not about

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the kids. They were just as bad as the adminis-trators. I wanted parents who were interested inthe children."

She built a small poverty constituency in herfirst two years consisting of a handful of theappointed board members and a small group whoregularly attended board meetings. The group wasnever more than a dozen and that dozen requiredconstant service reminders of meetings, baby-sitters, rides or it would have fallen apart. It wasless a community than an expression of the limitsof Pat Overberg's energy. Sometimes no one cameto meetings. Sometimes no one seemed veryinterested. A combination of school-administratorparanoia, Robert's-Rules-of-Order paranoia on thepart of Overberg's group, and an imaginative bit ofregulation-reading tipped the balance and startedthe community going.

The administrative blunder: "The superin-tendent had a lot to do with getting the NationalWelfare Rights Organization and the ACLU on ourside. He said in public that if he had them on theboard they would influence us to have 'blackhippie communal pot parties' if you can believethat and six days later the NWRO marched onhis office and demanded and got six seats on theboard. And the ACLU has been a great help eversince."

Parliamentary procedure: "In March werecommended that the budget for the summerpsychological clinic be increased. In April weasked if the increase had gone through and theytold us we hadn't made the presentation correctly.It's one thing to be refused; it's another to noteven be listened to. Then they said we hadn't evenmade the motion, they were calling us a bunch ofliars, so we went and got an injunction on parentparticipation in Title I. Then they began to getworried about us. When we started asking wherethe money was being spent they decided weweren't official after two years of work. Theytried to abolish the committee, but we wouldn'tlet them. We did agree with their idea that thepresent committee was really a new committee,but all that meant was that I was still eligible to bechairman after two years of training that had beenmade null and void."

Regulation finding: "I started on this Title Ibusiness when I got here in February," said StanHolt, a Providence community organizer. "It

asudellet.

wasn't until we found that Title I money could bespent for clothing if children didn't have anyclothes that NWRO got interested. They had beenworking on the welfare department for clothes foryears. When they heard about the possibility of$48 for clothes they got interested. Then, after wewon, they found that only children already inTitle I programs could get the money, so mothersbegan saying that they wanted their kids in theTitle I programs, not for the remedial readingtraining, but because it was a line on that $48.Then, when they were told that the programs werefull they went down to the schools and saw thechildren of doctors and lawyers sitting in the poorpeople's seats, and then they started to get mad."

It was only at this point that a lawsuitbecame a possibility in Providence. Violations ofTitle I regulations and guidelines were widespread.They had been going on since the program wasbegun. A substantial amount of money had beenmisdirected or misapplied or at least spent withoutadequate controls or community participation, butit was not until there was a community and notjust a group of certifiably poor people that the suitmade sense. In Calais, the suit served as a catalystfor a latent community, but in a large urban areawith community organizations already busy withareas other than education, the filing of a suitwould have had no impact on the community.

Even if plaintiffs in such a suit won, and even ifadjustments had been made in the Title I programas a result, it is likely that the absence of com-munity interest would have meant that in a shorttime the schools would have been able to return tothe status quo without attracting the notice ofanyone, even the court that granted the "victory"in the first place. But the Providence communitywas interested in education, and, as such things go,very well informed about it. Thus, a suit might beexpected to work because the people were there tocapitalize on a victory or fight back if defeated.

Lawyers, however, are distinctly an adjunctto the Providence community, and not necessarilya welcome one. The community has always hadhelp from lawyers, but it is clear to all thatnothing would have been accomplished without alot of marching and shouting and sitting in. Butbeyond that, the community people really don'ttrust lawyers. "Lawyers make deals," wasOverberg's first comment on the subject. WhereGeorge Johnson has to beg and plead and keep hishand in much longer than he thinks he ought tojust to keep his fragile community going, in

Providence the lawyers are on permanent proba-tion.

Part of the difficulty sterns from the desireof community organizers to keep their people onthe move. "A suit is not something that poor

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people can do. All the action stops. A suit takesthe action out of the hands of the people,"Overberg said. Stan Holt presents a more complexview: "Legal action is simply a question ofstrategy. in the civil rights movement we sawmany good law suits go down the drain becausethey didn't have the people behind them. Thejudicial system is very political and unless youhave the people behind a suit, it doesn't do anygood to win. Lawyers are too fond of jumping tothe legal process before the people are motivated."In Providence, the Title I suit is merely part of thepressure being put on the school system. At thesame time, the poor community is moving aheadwith its organizing, with its marches, with itslobbying. The organization is growing self-confident. It has not stopped bowing to experteducators to start bowing to expert lawyers. TheProvidence group views its lawyers pretty muchthe way General Motors does, as an availablesource of advice and as practitioners of legaltechnology. It is only where legal action canperhaps stimulate community organization, as inCalais, that a suit without a sound base in thecommunity seems justified.

Beautiful ActionsFrom the point of view of an 'organized

community, however, the atmosphere of inactionthat lawyers seem to surround themselves withdoes not go well with the excitement of thegroup's "actions," its marches, sit-ins, pressconferences. "There's nothing that drives a

sophisticated enemy up the wall faster than 200people on his doorstep," Overberg said. "Not hisoffice, his home! While we're there, we leaflet theneighborhood to tell people what their neighborhas been doing. On one action we went on therewas a wedding going on in the neighborhood andeverybody was out on the lawn watching usmarch. The bride and groom and everyone else wastaking pictures. It was beautiful!" And it probablywas, but the pressures that shape public policy donot come from the neighbors, they come fromother people who occupy the same universe ofdiscourse as the bureaucrat being picketed. Andwhile it might be possible to picket all theindividuals responsible for the present operation ofTitle I in any community, and while an activecommunity organization will probably hit as manysuch people as it can, it remains true that a lawsuit can hit all of them, and affect their actions as

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much or more than direct action can, so long asthe community is behind the suit. Legal action isone useful kind of pressure that is at the com-munity's disposal, which makes its disinterest inlaw and lawyers disturbing. When challenged aboutthis, Overberg answered, "But we're changing therules of the game." That, of course, is one thingthat lawyers are very good at, rules, using themand changing them.

Of course, community work is still a

relatively new area for many lawyers and a certainamount of heavy-footedness is to be expected.Condescension is deadly. Strategy must, if at allpossible, flow from the needs of the community.As always, lawyers are legal agents, men on some-body else's vital business, attorneys. They willserve the law if they can, but they must serve theirclients. If they appear before the community asservants, then perhaps they will no longer be seenas men whose arid craft absorbs the community'sspirit. They must, if they can, make a case for thelaw with the communities they seek to serve. Ifthe people of Calais were prepared to leaveJohnson's side, to stand all night in the mayor'sfront yard, or chant slogans at the schoolsuperintendent's door, or, given the kind of placeit is, engage in some more decorous confrontation,their chances of winning in the end would bemuch greater. Unless they reach the point wherethey can find their own way to the free eyeglasses,and Alcoholics Anonymous, and Title I suits, theywill never be free of the forces that have held themdown. But it is to be hoped that at the same timethey will remember that there are prizes they canwin with lawyers that they cannot win withoutthem, that some obstacles can never be overrunwithout using every pressure available, that inareas like education, where injustice may liehidden in files and forms and parentheticalphrases, it might be useful to have a lawyer onhand. It is up to lawyers, hat in hand, to remindthem.

This article raises issues; it does not settlethem. Can community organizations presscomplex policy issues, in court or out? Can the"invisible poor" of small towns be organized? Iseducation a useful organizing issue? How can a"community lawyer" balance law reform andservice to his clients? We invite your comments onthese and related issues and on this article.

The Center for Law and Education

in

Title IBUREAUCRATIC POLITICSAND POVERTY POLITICS

Title 1 is barely fivefederal program beenso seriously wanting

by Jerome T. Murphyyears old, yet rarely has anyso often evaluated and foundin its first few years. It has

been the subject of wake after wake, but never yeta funeral. While the discussion of the program's"failure" continues, federal appropriations areincreased, new teachers are hired, and morechildren affected. I am not interested in being hostto another wake, but with focusing on Title I'sanatomy, in the hope that a better understandingof how it works, and why, can lead to improve-ment. It is my belief that understanding can bestbe achieved by viewing key administrators at thefederal, state, and local level as primarily politicalfigures rather than educators subject to thedemands of their constituencies and to theconstraints of their bureaucracies.

Federal and state officials presently havelittle influence over the use of the Title I fundsthey disburse, virtually all control lies at the locallevel, but some corrective action is possible,mainly through the development of countervailinglocal power on the part of the program's clients,the poor.

Title I's OriginsThe Elementary and Secondary Education

Act was passed in 1965, a time when many peoplein Washington believed in the possibility ofeliminating poverty. The notion underlying theAct was familiar and very American: Give poorchildren the opportunity to do well in school andthey will do well as adults. The Act, particularly inits first and most important title, expressed thepolitical atmosphere that prevailed during Presi-dent Johnson's "unconditional war" on poverty.Further, it reflected the influence of what DanielP. Moynihan has called "persons whose professionmight be justifiably described as knowing what ailssocieties and whose art is to get treatment under-way before the patient is especially aware ofanything noteworthy taking place . . . ."1

Of such people, the most important in thestory of ESEA was Francis Keppel, Commissionerof Education at the time the law was passed, and astrong advocate of concentrating resources ondisadvantaged children. Keppel, building on a bill

introduced the year before by Senator WayneMorse (D., Oregon) which included a politicallyappealing formula for concentrating funds oncities and rural areas at the same time, managed toshepherd ESEA through Congress without majoramendments.

It is important to understand that thereform was not a response to public pressure.Unlike the great national programs passed duringthe New Deal, Title I did not arise from publicdemand. The poor were unorganized and hadmade no demands for such legislation. Nor wasTitle I a natural outgrowth of tried and testedprograms at the local level. At the time it wasdeveloped, only three states had passed legislationspecifically geared to disadvantaged children, andthose laws funded only small pilot projects. Otherlocal efforts were new, few, and concentrated in alimited number of cities. Nor was Title I thecreature of the established 'educational organi-zations or educational administrators. The "oldguard" bureaucracy in the Office of Education(USOE) viewed its job as providing technicalassistance to the states and local schools whenrequested. They saw USOE more as a serviceorganization than a focal point for leadership orinitiative; the guiding principle was deference tothe states and the local schools, and they hadreservations about Title I. The attitude of theprofessionals who staff the state and local schoolsystems was little different. They were dismayedto learn that ESEA was not general aid. In anational survey of school administrators in May1966, approximately 70 percent stated that Title Ifunds should not be allocated on the basis ofpoverty.2 As far as the educational associations inWashington were concerned, their primary interestwas general support for on-going public schoolactivities. Although they accepted the povertytheme as a necessary compromise to achieve aidfor the public school system, their emphasis wason breaking barriers to federal aid, on the groundthat this would be a major step toward generalsupport at a later date. Furthermore, they werereluctant to oppose a strong President at theheight of his political power.

9

In sum, Title I was not a reflection ofpressure from the poor and had little supportamong educational administrators. Some urbanschool officials saw the need for categorical aid,but most support from within the profession wasbased on the notion that Title I was the first steptoward general aid. The main support for aid toschools in poverty areas came from reformers inthe Executive Branch.

Allocation of Responsibility

These reformers were faced with a formid-able problem in legislative draftsmanship. Theyfelt the need to increase federal leverage, givenUSOE's traditionally weak role in Americaneducation, but they recognized that federalcontrol of schools was a major issue when the billwas drafted. Every effort was made to avoid thisand other issues which for 100 years had pre-vented broad federal aid for education. The resultwas a complicated compromise which did little todisturb the balance of power in education. Itprovided influence for each level of government,but at the same time set limits. The formuladevised for Title I was unusual in that it by-passedthe states and localities in determining roughly onwhom the money should be spent. (This featuremade it politically acceptable since funds wereconcentrated in urban centers and poor ruralareas.) Funds were to be distributed among schooldistricts based on the relative incidence of poverty,and within districts in areas of high concentrationof poverty. But the formula grant system cutsboth ways: although it by-passes state and localgovernments, it establishes a fixed amount foreach state and locality, once the total federalappropriation is known. This absence of competi-tion for program funding combined with the localview that the money is rightfully theirs immenselyweakens the ability of federal officials to bargainwith state officials over improvements in programcontent or administration.

The USOE also by-passes the state depart-ments of education to establish "basic criteria"which must be met by local districts in operatingtheir Title I projects, but USOE has no controlover the projects. (It is worth noting that this basiccriteria authority was viewed as a threat to localcontrol of the schools and was the most hotlycontested provision during congressional debate.)The states have the responsibility for approvingprojects, but they must follow the basic federal

10/INEQUALITY IN EDUCATION

criteria in carrying out this responsibility. Localdistricts have access to earmarked funds andlatitude in designing projects, and are circum-scribed only to the degree that state supervisionand federal enforcement are effective. Thus, evenon paper, the local school districts had the greatestsay in how Title I funds were to be spent. Otherfactors, discussed below, also tended to favor localinterests over state and federal.

Federal EffortsThe reformers involved in the development

and passage of ESEA were for the most part notinvolved in its implementation. They went on toother legislation, leaving ESEA to the lower levelstaff of USOE. This staff had had virtually noimpact on the development of Title I and ingeneral would themselves have chosen moretraditional approaches or general aid. They did nothave experience with grants-in-aid of the size andscope of Title I, nor had they ever been called onto write basic, nationally applicable, criteriagoverning the approval of projects. Efforts weremade to bring in new staff to meet this responsi-bility, and USOE did change significantly.Nevertheless, the USOE old guard, if not alwayscontrolling policy, for the most part staffed theprogram and made the day-to-day decisions thatset the tone for federal operations.

Furthermore, USOE has not had enoughpeople to monitor the states effectively. Title I isadministered by the Division of CompensatoryEducation in the Bureau of Elementary andSecondary Education. In early 1970 the day-to-day monitoring that was done by USOE was doneby three area desk officers in the OperationsBranch. The area desk office for Massachusetts, afairly typical state, was also responsible for Title Iin 23 other states as well as Puerto Rico and theVirgin Islands. He had no assistants and spentmuch of his Title I time answering Congressionalmail. Two-thirds of his time was spent working onother projects of the Bureau of Elementary andSecondary Education which have nothing to dowith Title I.

MORE ON TITLE I, PAGE 27See Notes and Commentary section for newrules and regulations, court decisions, andlawsuits on Title I parent participation,clothing allowances, and standing to sue.

His role with respect to the states waspassive. He described his relationship with theMassachusetts Title I director as "very nice."4 Insix months, he had met with the Massachusettsdirector once and talked with him on the tele-phone half a dozen times. He saw his job astrouble-shooting, answering complaints andproviding service, and did not view himself as aprogram "monitor." He admitted that he didn'thave time to keep up with what was going on inhis states except through information provided bystate officials.

One important Title I official who has beenwith the program since its start succinctlydescribed the prevailing modus operandi:

"Title I is a service-oriented program withpredetermined amounts for the states. Thissets the framework where the states areentitled to the money. Other than makingsure states got their money and making sureit was spent, there was no role for the Officeof Education. I don't know anyone aroundhere who wants to monitor. The Office ofEducation is not investigation-oriented,never has been and never will be."5

USOE's Title I operation has not only beenunderstaffed and disinclined to monitor thr.)states,it also has virtually ignored the fairly compre-hensive reviews of state and local programsconducted by the HEW Audit Agency. Thesereports, designed to determine whether funds arebeing spent legally, are always passed on to theDivision of Compensatory Education for action.According to the Martin-McClure Study, Title I ofESEA: Is It Helping Poor Children?:

"The audit reports have brought to lightnumerous violations of law and have recom-mended that millions of dollars be recoveredby the Federal government. Yet in onlythree cases has the Office of Educationsought and received restitution of fundsillegally spent .. .. Even in the mostflagrant cases of unlawful use of themoney the two swimming pools in

Louisiana, for example the Office ofEducation failed to act."6The fundamental question is why has the

USOE not been aggressive in monitoring andfollowing up on the audits. The answer is not onlythat the staff is limited and unwilling to monitor;

an important part of the explanation is that it isone thing to try to persuade a state to followcertain criteria, but an altogether different thing toaccuse it of misusing funds which they view astheir money. While Congressmen abhor waste andnever tire of abusing bureaucrats who countenancewaste, there are general principles which do notnecessarily apply to individual cases, particularly ifthe alleged misuse occurs in their own districts.Top federal officials recognize the political natureof their jobs and know that they need Congres-sional support to survive, therefore they are notanxious to arouse Congressional wrath especiallywhen there is a high probability that they will notget the money back. USOE staff remembers wellKeppel's failure in his attempt to cut off Chicago'sTitle I funds for civil rights violations; MayorDaley simply took the President aside at a publicceremony and arranged for the funds to bereinstated.7

Rose-tinted glassesFurther, for the first few years, the pressure

to get the program moving quickly and to avoidcharges of federal control led to a naturaltendency to look at the sunny side. There wastremendous pressure from the upper reaches of theJohnson administration as well to generatestatistics on the number of schools involved, thenumber of children affected, and so forth, so thata successful program could be shown to the publicand Congress. Finally, USOE's behavior has in partbeen adapted to take advantage of its strategicallyweak bargaining position. It is virtually impossiblefor USOE to cut off funds which the states view astheir rightful entitlement under the law. The statesknow this and so does USOE. Thus, orders ordemands by USOE are bound to be ineffectivesince they cannot be backed up with action.Furthermore, demands might alienate the statesand result in loss of communication. Since USOE'sinfluence comes mostly from the power ofpersuasion, and since it presently relies almosttotally on the states for information about localprograms, it is absolutely essential that USOEmaintain cordial relations with the states. Underthese bargaining conditions, the states are in aposition to exact a price for their good will. As aresult, USOE will be willing to sanction (perhapscovertly) deviations from the statute in exchangefor open communications. Thus, the agency'sservice orientation and deference to local officialscan be understood in part as rational behavior,

11

designed to achieve the greatest possible influencefrom a weak bargaining position. USOE's problem,then, is not simply the lack of will or lack of staff,but lack of political muscle. And like otherpoliticians, most top federal administrators areunwilling to take many risks unless pushed.Certainly that is the case with the Federal Title Ioffice today.

An exemplary failureThe effects of political constraints on federal

efforts to exercise leadership can best be seen byfollowing USOE's attempts to use their authorityto write basic criteria to foster the establishmentof local community and parent advisory councils.Since the beginning of the program, USOEofficials have believed that the more parents wereinvolved in local Title I programs, the better theirchildren would do in school. This argument hasnot impressed the states; the history of USOE'seffort is a series of reversals.

The first set of basic criteria, issued byUSOE in Spring 1967, called for parent r artici-pation, but did not define the nature of thisparticipation beyond saying that it should be"appropriate."8 The second set of criteria, issuedin Spring 1968, called specifically for involvementof parents "in the early stages of program planningand in discussions concerning the needs ofchildren."9 On July 2, 1968, USOE issued aseparate memorandum on parental and com-munity involvement stating that "local advisorycommittees will need to be established."' °

It began to appear that USOE was serious. Itmight be appropriate to discuss parent involve-ment, but it was quite a different thing to call forformal committees which could be identified,counted, and perhaps even exert some influence.Many educators felt professionally threatened, andafter seventeen days of pressure from nationaleducation associations, local educators, andCongressmen, USOE issued a "clarifying memo-randum."' 1 In effect, this told the states to do asthey pleased about parental involvement. Mostwere pleased to do nothing, although someadvisory committees, often stacked with teacheraides and other paraprofessionals, continue tofunction. A few even function effectively.

In 1969 the Division of CompensatoryEducation was still unsatisfied. It convinced theNixon administration to amend the law to include

12/INEQUALITY IN EDUCATION

local advisory committees. The recommendationwas made and was adopted by the House Educa-tion and Labor Committee, but was droppedduring floor debate in the House because of strongopposition, particularly from Southerners. Theamended bill that was passed further confused thematter with unclear language on the extent ofUSOE's authority.'2 Six months after the passageof the law, USOE is still struggling against opposi-tion from educational associations to come outwith a guideline requiring local parental advisorycouncils. Given this confusion, those states dis-agreeing with the idea of advisory councils haveeven more reason to simply ignore it.13

The pattern is well established. Local andstate educators have also been able to exert theirinfluence to stop USOE from enforcing concen-tration of Title I funds, comparability, and limitson equipment expenditures. Guidelines emergingfrom USOE have been vague and ambiguous,allowing local educators plenty of room tomaneuver.

This, then, is the context in which USOEoperates. It lacks the staff and the inclination toengage in compliance activities, it is in a weakbargaining position with the states, and it is

stopped by Congress and organized interests whenit tries to exercise leadership.

Lacking significant prodding from the poor,federal Title I administrators treat the Congress,and state and local educators as the program'sconstituency. Until recently they have had noother.

State EffortsAll the problems with the administration of

Title I do not lie within USOE or between it andCongress. Important barriers to implementationare found at the state level, and in relationsbetween the federal, state, and local educationalauthorities. As noted above, I will takeMassachusetts as my example of state efforts atmonitoring the program.

One important problem is that many statedepartments of education, mirroring USOE, donot have a tradition of educational leadership, butrather grew out of the necessity of administeringvaried state education laws. One study in 1965described the Massachusetts Department as "aconglomerate historical institution trying earnestly

and valiantly to become an organization." Laterthat year the state legislature completelyreorganized the Department; the new and heavyresponsibilities for Title I were assumed just afterthis major rearrangement.

The reorganization of the Department, whileit rationalized functions, did not answer one of itsmajor needs, higher professional salaries.Professional staff are paid considerably less thaneducators with equivalent training and experiencein local school districts or USOE.

For several years the state Title I directorhas been attempting to increase his staff; he hasfour assistants at present. He has searched particu-larly for black professionals, but he has beenunable to find people black or white who areboth competent and willing to join the statedepartment of education. Further, even if all staffpositions were filled, it would be impossible forthe Department to monitor effectively the 430Title I projects in the state. Indeed, the staff couldnot even visit each project in the course of a year,much less understand what each is doing.

Friendly, si, persuasion, noThe state department is no more disposed to

compliance activities than USOE. The state Title Idirector14 believes that initiative and leadershipshould come from the local school districts. Heprefers to give technical assistance and service tolocal schools. He seeks to discourage any question-able practices through friendly persuasion, notfind cutoffs. To paraphrase one student offederalism,15 what usually happens is that stateand local educators, working in the same program,trained in the same schools, and active in the sameprofessional associations, think along the samelines and have relatively little trouble in reaching ameeting of minds.

Financial control is even worse. The HEWAudit Agency has checked the Massachusettsaccounts on two occasions. The federal auditorsfound that poor financial management hadallowed federal allotments totalling more than $1million to lapse for each of three years.16 InBoston, for instance, the HEW audit reported thatalthough the school committee had failed to use$263,000 of its allotment, the program directorsexplained failure to concentrate funds on eligiblechildren by saying that there was not enoughmoney to do so.

1 The explanation for this mix-up is simple:The state hardly audits at all. One man has the jobof auditing all local projects. Local districts aremerely required to submit a one-page financialstatement which breaks down Title I expendituresby educational categories, such as food, adminis-tration, and instruction, and divides expendituresinto salaries, contracted services, and otherexpenses. It is useless in determining compliancewith the law. It took until November 1968 for theDepartment to complete this rudimentaryprocedure for one-third of the 1967 projects. Inthe meantime, no auditing of 1968 expenditureshad taken place, according to the second HEWaudit.

The HEW auditors examined four districtsclosely and found inadequate time and attendancerecords, unsubstantiated overtime payments toteachers, inadequate accounting procedures, andunremitted unused funds totalling $1.5 million.One district was found to have made inaccuratefinancial reports. The Title I coordinator in thisdistrict informed me that he had found out aboutthe error because he met with the HEW auditorsafter they had finished examining his books. Hesaid he had never heard from the Department.While the state director expresses confidence thatfunds are not being misused, he admits that hecannot prove it.

Program evaluation is another problem area.Title I is relatively idiosyncratic among aidprograms in requiring local evaluation whicheducators know can be used against them in theestablishment of new priorities. Add to this thefact that few local educators are expert in evalua-tion and it is no wonder that there has beenresentment of this provision. After all, to theextent that evaluations do not disclose meaningfulinformation on results, local districts cannot bechallenged in their local priorities on the basis ofevidence of failure.

In one city,18 for instance, I found a localevaluation of a reading program that asserted thatfourth grade Title I children had gone from fivemonf c. behind non-Title I children at thebegin ng of the 1967-68 school year to fourmonths behind at the end of the year. This state-ment was indeed true and the gap was closing, butthe local evaluation failed to point out the reason.Non-Title I children had regressed two months

13

while the Title I group had only regressed onemonth.

It is not surprising that an independentreview of one state evaluation concluded, "Theanalysis in the state report is meaningless, then,because the data it collected could serve noconceivable evaluative purpose. Collecting thisinformation was, in the strict sense of the word,entirely futile . . . ."I 9 The state is hopeful ofimproving this situation but without an unforeseeninfusion of funds and professionals willing to workat state pay rates, nothing is likely to happen.

Even if the money and personnel wereavailable for all the relatively neglected areas ofmonitoring not only project auditing and evalua-tion but also significant state-local consulta-tion major obstacles to federally-initiatedreform would remain. The state is no more able toimpose its wishes on local school districts than thefederal government is able to dictate to the states.The absence of competition for Title I fundsweakens the state's bargaining position as it doesUSOE's. Districts receive fixed amounts byformula almost regardless of the quality of theirprograms. Few applications for funds have everbeen rejected by the state, and funds have neverbeen withheld. Also, there is a strong tradition oflocal control of the schools which the Title I

director characterized as " 'The Battle Hymn ofthe Republic' of New England educators."2°Without any counter-pressures from the local level,the states are bound to yield to the wishes of localeducators except in cases of blatant violations ofthe law. Because of these political factors andbecause of the serious personnel problem, stateshave little leverage on local districts. Like theircounterparts at the federal level, state Title I

officials reflect their weak bargaining position;they are reluctant to act as monitors andregulators.

Conclusion

What emerges from this discussion is clear:federal and state governments have little controlover Title I spending; local school districts arevirtually free to meet their own priorities. This isnot to say that local educators blatantly violatethe law, only that they are in control of thesituation and are able to stretch the law to meettheir needs, which are defined by their constit-uency.

14/INEQUALITY IN EDUCATION

Why has Title I been administered in thisway? To blame the problems solely on timidity,incompetence, "selling out," or on evil men is tobeg the question. I have identified a number ofcontributing factors: the reformers were not theimplementers; inadequate staff; a disinclination tomonitor; a law and tradition favoring local control;absence of pressure from the poor. Finally, ourfederal system of government encourages localintervention in the establishment of federalpriorities. As a result, those federal priorities notdiluted by Congressional intervention can beignored during the program's implementation.

Strengthen the poor

What can be done? There are no panaceasand no short cuts to a better program, but thereare several steps that can be taken to improve TitleI. For one thing, the program is obviously in needof better management at the federal and statelevel. This means people, competent peopletrained in the techniques of program management.But this is not as simple as it seems. After all it isno accident that salaries in the Massachusettsdepartment of education are not competitive. Theproblem is not money, it is politics. What betterway is there to keep the Department weak than tohave salaries so low that only the least competentapply. There are problems, of course, in improvingTitle I management but they are not insurmount-able. But in order for management changes tomake a difference they need to be accompanied bya shift in political power. It is the almost completepower of the local districts which must bechallenged, and it must be challenged at the locallevel. Creation of countervailing local forces iscalled for, in order to prod federal, state and localofficials to act more forcefully. Efforts to establishstrong local advisory councils could help producelocal responsiveness to the educational needs ofthe poor. Their demands for public accountabilityand a role in the development of programs canincrease the influence of the poor at the locallevel. But if strong local advisory councils are animportant first step, efforts are also needed at thestate and federal level. In Massachusetts, forexample, community groups have banded togetherto encourage the state department of education toissue strong guidelines governing local advisorycouncils. The effect of such pressure is toencourage local councils, but also to strengthenthe bargaining position of the state with local

school districts. Whether the community groupsget everything they want seems doubtful, but thestate's constituency has been broadened they nolonger will be totally beholden to the wishes oflocal public schoolmen.

Similarly, community groups should bandtogether on a nationwide basis, to bring pressureto bear on USOE and the Congress. Until recently,whenever USOE attempted to exert any influencethe only people they heard from were thespokesmen for public educators who, under-standably, were trying to protect their interests;typically USOE responds to this constituency. Inthe last few months, however, pressure has beencoming from such groups as the WashingtonResearch Project, the NAACP, and the Center forLaw and Education, and they have had somesuccess. Nevertheless, additional forces are neededto expand their efforts. Such pressure will have asignificant impact only if poor parents areorganized for national pressure. Furthermore, thechances of impact may be greatest at the federal

level. Federal officials share with poor parents thedistinction of being on the outside of our nation'sschool system. Assuming that some desire forreform remains in USOE it is not inconceivablethat they could join hands with the poor on someissues to put the squeeze on a recalcitrant publicschool system. For example, USOE and the poorprobably have a mutual interest in increasingpublic school accountability for Title I. To dateUSOE has never used its broad authority torequire good evaluation at the local level. Given astrong push by an effective lobby, USOE could bein a better bargaining position to impose thispriority on public school educators.

Clearly, building an effective grass-rootslobby is a difficult task filled with pitfalls; going"too far," for example, could backfire and resultin the replacement of Title I with general aid tothe schools. Nevertheless, risks need to be taken,and until countervailing community power growsat every level, Title I will continue to providefrustration and reports of failure.

FOOTNOTES

1. Moynihan, Daniel P., Maximum Feasibl ! Misunder-standing. New York: The Free Press, 196' , p. 23.

2. Bailey, Stephen K., and Edith K. Mosher, ESEA: TheOffice of Education Administers a Law. SyracuseUniversity Press, 1968, p. 306.

3. The area desk operation has grown considerably insize in recent months. In October 1970, there were 18area desk officers monitoring the states. This rapidgrowth reflects the growing concern with Title Iadministration. Although this increase in staff givesthe appearance of greater control of the program, it istoo early to assess its impact at the state and locallevel. This impression was confirmed in interviews atUSOE on October 6, 1970, and at the MassachusettsDepartment of Education on October 14, 1970.

4. Interview with Benjamin Rice, Midwest and EasternRegional Representative, Division of CompensatoryEducation, USOE, November 26, 1969.

5. Interviewee asked not to be identified, November 26,1969.

6. p. 97

7. Bailey and Mosher, op. cit., pp. 151-152. Theincident, as might be imagined, had considerableimpact on USOE's attitudes on enforcement.

8. Memorandum from John F. Hughes, Director,Division of Compensatory Education, USOE, to ChiefState School Officers, April 14, 1967.

9. Memorandum from Commissioner Harold Howe II,USOE, to Chief State School Officers, March 18,1968.

10. Memorandum from Commissioner Harold Howe II,USOE, to Chief State School Officers, July 2, 1968.

11. Memorandum from Commissioner Harold Howe II.

USOE, to Chief State School Officers, July 19, 1968:12. P.L. 91-230, April 13, 1970.13. Willis-Harrington Report on the Massachusetts Depart-

ment of Education, 1965.14. Interview with Robert L. Jeffrey, Senior Supervisor in

Education and Massachusetts Department ofEducation Title I Director, December 9, 1969. At asubsequent interview on October 14, 1970, heexpressed similar views.

15. Elazar, Daniel J., American Federalism: A View fromthe States. New York: Thomas Y. Crowell Company,1966, p. 149.

16. HEW Audit Agency, Report on Review of GrantsAwarded to the Commonwealth of MassachusettsUnder Title I, Elementary and Secondary EducationAct of 1965, January 23, 1969. This audit coversTitle I operations in 1966-68. The first audit coveredthe first year of operation, 1965-66.

17. During the last year, two additional auditors havebeen added to the Title I staff, but they do not spendall their time on Title I nor do they audit localprojects.

18. There is no need to single out one city in this shortarticle. Title I funds are allocated to most schooldistricts in the country and there is no reason tobelieve that this particular district was worse than anyother.

19. Cohen, David K., and Tyll R. Van Geel, "PublicEducation" in The State and the Poor, edited bySamuel H. Beer and Richard E. Barringer. Cambridge:Winthrop Publishers, Inc., 1970, p. 231.

20. Interview with Robert L. Jeffrey, op. cit., December9, 1969.

N.B. A substantially different version of this articleappears in the Harvard Educational Review, V. 41, No. 1.

15

NOTES AND COMMENTARYThis section of Inequality in Education featuresreports on research, litigation, government action,and legislation concerning education and the law.Readers are invited to suggest or submit materialfor inclusion in this section.

INTEGRATIONDetroitCIRCUIT COURT BANS STATE DELAY OFDESEGREGATION EFFORTS; DISTRICTORDERS HIGH SCHOOL INTEGRATION

On November 4 on remand, the Districtcourt heard arguments and granted plaintiffs'motion that the Detroit board of education submita plan for integration of the city's high schools forthe second semester of this school year. The planwas to be submitted by November 16. The hearingon the board's further obligations under thefourteenth amendment will be held December 8.Earlier details below.

Bradley et al v. Milliken, Civil Action No. 35257(D.C.E.D. Mich.), 6 Cir., October 13, 1970.

States may not move to overturn., desegre-gation efforts by local school boards, the SixthCircuit Court of Appeals has ruled. The courtfound unconstitutional the Michigan state legis-lature's rollback of the Detroit school board'svoluntary plan of desegregation.

The Detroit situation is complicated andturbulent. On April 7, 1970, the city school boardadopted a plan to desegregate 12 of its 22 highschools. At the same time, in conformity with amandate from the state legislature, the boardadopted a seven-region plan of decentralization.Each region had approximately the same racialcomposition. The desegregation plan was approvedby a vote of 4-2 despite considerable public resent-ment. Students were notified of their new schoolassignments the same month. The plan was utilizedbusing, but followed a general policy of sendingstudents to schools close to their homes and didnot, in fact, increase the proportion of childrenrequired to travel by bus to school. Busing,nonetheless, and its presumed attendant disruptionbecame the subject of public debate over the plan.

Combined efforts to rescind the desegre-gation plan and to recall the four board members

16/INEQUALITY IN EDUCATION

who had voted for it were successful. On July 7,the state legislature approved a bill changingDetroit's system of school administration,including changes in the school board's composi-tion; delaying the desegregation plan until the newboard could review it; ordering a return to the oldattendance zones for the fall term this year; andmandating a new eight-region decentralization planincluding an open-enrollment plan which favoredneighborhood attendance in the schools. The recallmovement was successful and on August 4 thefour board members were removed.

Neither the Circuit nor the District court hasruled on which, if either, decentralization plan ispreferable. The Circuit court did rule, however,that decentralization programs of any sort cannotbe used to justify segregation or delay integration.

Parents of black children attending theDetroit schools file suit August 18 seeking desegre-gation of the city's schools. Plaintiffs soughtpreliminary relief as to faculty and students as wellas construction policies; their motion also attackedthe constitutionality of the state legislature'sdesegregation rollback and a return to the April 7plan. The District court denied all. relief and didnot rule on the constitutionality of the rollback.Plaintiffs appealed, and on October 13, the SixthCircuit ruled. Both the delay of the April 7 planand the mandate for open enrollment with prioritygiven to those choosing schools close to theirhomes were found to violate the FourteenthAmendment.

The court noted that the board had acted onApril 7 "further to implement the mandate of theSupreme Court in Brown," and that many courtdecisions have held that state action "will not bepermitted to impede, delay, or frustrate pro-

ceedings to protect the rights guaranteed tomembers of all races under the FourteenthAmendment . . .. State action cannot be inter-posed to delay, obstruct, or nullify steps lawfullytaken for the purpose of protecting rightsguaranteed by the Fourteenth Amendment."

The state had attempted to justify the

legislature's rollback on the grounds thatimplementation of the eight-region decentrali-zation plan would require time, but the court didnot even consider the argument. As to the state's

assertion that the act was a valid exercise oflegislative power, the court noted that acts gener-ally lawful become unlawful when undertaken todeprive persons of constitutional rights.

The Sixth Circuit's opinion in the Detroitcase is in line with a number of other recentrulings in this area. The opinion cited several casesrelating to attempts by legislatures in southernstates to thwart disestablishment of dual schoolsystems [E.g., Griffin v. County Board of Educa-tion of Prince Edward County, 377 U.S. 218(1964)1 and northern and western attempts torescind fair housing ordinances (E.g., Reitman v.Mulkey, 387 U.S. 369 (1967)1. The Detroitopinion adds force to a number of holdingsdirectly related to de facto school segregation, inwhich state action to impede voluntary desegre-gation has been found unconstitutional. In Keyesv. School District No. One, Denver 303 F. Supp.279, 313 F. Supp. 61 (D.C. Colo.) the Districtcourt declared the recision of a previous board'svoluntary desegregation plan by a new board tohave been unconstitutional. In Lee v. NyquistF. Supp. (D.C.W.D. N.Y.) a three-judge courtheld New York's anti-busing provision unconstitu-tional. The general application of this principlewould mean that once a school board chooses todesegregate, its act would not be subject to anyrecision, delay, or obstruction by any other arm ofthe state.

On remand in the Detroit case, plaintiffs willmove to implement the April 7 plan by the secondsemester of school. Plaintiffs are represented byBruce Miller and Lucille Watts of the DetroitNAACP, Louis R. Lucas of the national NAACP,and Paul Dimond and J. Harold Flannery of theCenter for Law and Education.

LouisianaPAROCHIAL SCHOOL SYSTEM SUED ASSTATE-SUPPORTED INTEGRATION ESCAPE

Auzenne et al v. School Board of the RomanCatholic Diocese of Lafayette, Louisiana, CivilAction No. 15804 (W.D. La.).

This action seeks to bring about theimmediate desegregation of two parochial schoolsin Opelousas, La., which serve the same area in St.Landry civil parish. The all-black Holy Ghostschool is separated physically from the Academyof the Immaculate Conception (which has fiveblack children) only by an integrated Roman

Catholic cemetery. The public schools ofOpelousas were integrated under court order lastfall and the black plaintiffs contend thatcontinued operation of the dual Catholic systemconstitutes a government-supported out forsegregationist parents.

Plaintiffs argue that education in itself is apublic function and further that the substantialamounts of federal and state aid accepted by theseschools makes them liable to application of theequal protection clause of the fourteenthamendment. Defendants presently receive thebenefits of state and federal breakfast, lunch, andmilk programs; Title I programs; testing under theNational Defense Education Act; free schoolbooks and supplies from the state; freetransportation and public health services; as well astax benefits. They anticipate further aid in payingteachers' salaries under Louisiana's SecularEducational Services Act.

Plaintiffs also seek redress as beneficiaries ofassurances of desegregation made by thedefendants in agreements with the Department ofHealth, Education and Welfare. [See Bossier ParishSchool Board v. Lemon, 370 F. 2d 847 (5th Cir.1967, cert denied 388 U.S. 911 (1967)1, as well asunder their federal right to make a

non-discriminatory contract with the Academy[See Jones v. Mayer Co., 392 U.S. 409 (1968)1.Finally, plaintiffs are asking for application andextension of Green v. Kennedy 309 F. Supp. 1127(D.C.D.C. 1970). They seek not only a ruling thatfederal tax exemption for schools and segregationare incompatible, but also application of theprinciple that acceptance of the tax exemptioncreates an affirmative duty to desegregate thatcannot be eliminated merely by dropping the taxexemption.

Defendants have been granted a stay pending

LIBRARIES PLEASE NOTEBecause of unexpected expenses, in-

cluding the establishment of a library at theCenter for Law and Education and heavydemand for our litigation packets, we will beasking our library subscribers to pay $6.00for the coming year. In return, Inequality inEducation will regularize its publicationschedule and will provide single back issuesfree on request to libraries.

17

decisions by the United States Supreme Court in anumber of desegregation cases now before it aswell as the outcome of attacks on the state'sSecular Educational Services Act. Plaintiffs haveappealed the stay to the Fifth Circuit on thegrounds that the issues in this case are broadenough to be considered independent of the issuesin these other cases.

Plaintiffs' attorneys include the Rev. JosephCooney, S.J., of University Legal Services ofWashington, D.C., and Stuart Abelson and J.Harold Flannery of the Center for Law andEducation.

RESOURCEALLOCATION

Hobson v. Hansen IIRICH FAVORED IN D.C. SCHOOLS,COURT SAYS, ASKS EXPLANATION

Hobson v. Hansen, Civil Action N. 82-66(D.C.D.C.) September 1, 1970, motion for furtherrelief in Hobson v. Hansen, 269 F.Supp. 401(D.C.D.C. 1967), aff'd sub nom Smuck v. Hobson,408 F.2d 175 (D.C. Cir. 1969).

District Judge Skelley Wright ruledSeptember 1 that with respect to per pupilexpenditure, "the richest and whitest areas of[Washington, D.C.] are being substantially favoredover poorer and blacker areas." The court alsoordered the school system to show cause why itshould have more than five per cent variation inper pupil expenditures in the schools.

In his 1967 decision Judge Wright hadenjoined "discrimination on the basis of racial oreconomic status" in the operation of the Districtof Columbia school system. (at 517) The evidencethen revealed that per pupil expenditures had beensubstantially higher in predominantly whiteschools, located in the wealthiest neighborhoodsof the system, than in other schools. In the 1967opinion, the court held that "the minimum theConstitution will require and guarantee is that fortheir objectively measurable aspects these schoolsbe run on the basis of real equality, at least unlessany inequalities are adequately justified." (at 496)

In May 1970, plaintiffs filed a motion forenforcement of the 1967 decision, alleging thatdifferences in per pupil expenditures had widened,

18/INEQUALITY IN EDUCATION

and seeking an order requiring that per pupilexpenditures from regular funds (excluding ImpactAid and Title I ESEA funds) in each elementaryschool not deviate more than 5% from thesystemwide average, absent an "adequatejustification." "Adequate justification" wasexplicitly defined to include "compensatoryeducation for educationally deprived pupils . . ."[See Inequality in Education, Number Five, p.18.]

The school system filed an opposition to theplaintiff's motion and a motion to vacate thepermanent injunction based upon assertedcompliance with its terms. Subsequently, the courtrequired the system to file reports showing currentinformation, by school, on per pupil expendituresfrom regular and other sources of funds (forexample, Title I and Impact Aid), latest availableinformation on income levels of the various schoolareas and a calculation of the correlation betweenper pupil expenditures at the schools and theincome level of their neighborhoods.

In his September 1 opinion, Judge Wrightfound with respect to per pupil expendituresplaintiffs' contentions were correct. The systemhad argued that this resulted, in part, from the factthat some schools were under capacity whileothers were overcrowded. Concluding that suchdisparities "may be eliminated" the court orderedthe system to show why "busing of pupils fromlow-income area, overwhelmingly black,overcrowded schools . . . to high income area,whiter and underpopulated schools would noteliminate unnecessary differences in per pupilexpenditure" relating to the utilization factor.Data submitted by the schools indicated that therewere 12 overcrowded schools, and 17,000 emptyclassroom spaces in the system.

The court noted the system's arguments thatdifferences resulted, in part, from the presence ofa disproportionately large number of the mosthighly paid teachers at high expenditure schools;and that it would be unduly burdensome "to orderabsolutely equal distribution of highly-paidteachers .. .." Reiterating the conclusionexpressed in Hobson I that higher teacher salariesare in general an indicator of "teacher quality,"Judge Wright said that if reassignment wasinappropriate; "it would seem that the schoolswhich do not have their share of such teachersshould be compensated with a corresponding

benefit, as for example with special equipment orteaching assistants . . .." Accordingly, the courtordered the system to show why it "should notdevise a plan to equalize within a five per centvariation expenditures for teaching costs out ofregular funds among all ... elementary schools forthe 1971 fiscal year."*

The school board argued in its response to themotion that two recent cases Danchidge v. Williams,397 U.S. 471 (1970) (fixed maximum welfare paymentupheld) and McInnis v. Shapiro, 293 F. Supp. 327 (N.D.III., 1968), aff'd, sum nom. McInnis v. Ogilve, 394 U.S.322 (1969) (inter-district differences in per pupilexpenditures upheld) had in effect undermined therequirement of intra-district expenditure equality. Thecourt did not comment on this argument.

MICHIGAN SUPREME COURT OUTLAWSREQUIRED FEES IN "FREE SCHOOLS" CASEBond v. Public Schools of the Ann Arbor SchoolDistrict, 178 N.W. 2d 484 (Sup. Ct. Mich 1970)

The Supreme Court of Michigan has ruledthat schools cannot require students to pay feesfor books, supplies, and equipment, as well as forinterscholastic athletics, and general purposes, andstill conform to Article 8, Section 2 of the state'sconstitution (1963) which establishes "a system offree public elementary and secondary schools asdefined by law." The Supreme Court stated, "Thefirst rule a court should follow in ascertaining themeaning of words in a constitution is to give effectto the plain meaning of such words as understoodby the people who adopted it." In this case, thecourt ruled, free meant "without cost or charge."The court further ruled that the books andsupplies being charged for were "necessary to asystem of free public elementary and secondaryschools."

The suit was a class action brought byparents of children attending the Ann Arborschools. The trial court had enjoined the requiringof general fees and athletic fees, but had deniedrelief on fees for books, supplies, and equipment,and refused to order repayment of $140,000 ingeneral fees collected since the action was begun.The Michigan Supreme Court granted theremainder of the relief sought on appeal. Thecourt accepted the test used by the Idaho SupremeCourt in a similar case [Paulson v. MinidokaCounty School District, 463 P.2d. 935, 938(1970)] that included "necessary elements of anyschool's activity" under a state constitutionalguarantee of free schools, as well as the similar testadvanced by plaintiffs, which included anything

that was "an integial fundamental part of theelementary and secondary education."

The state supreme court ordered that the$140,000 in general fees that had been collectedbe distributed to the plaintiff class after attorney'sfees had been deducted and ordered notice by mailand newspaper advertisement of the decision.

INTEREST IN TAX VOTE NOT LIMITED TOTAXPAYERS, COLORADO COURT RULES

Pike et al v. School District No. 11 in El PasoCounty, No. 24657, Colorado Supreme Court,August 31, 1970.

The Colorado Supreme Court has affirmedthe results of a school tax referendum whichpermitted people who did not own property orpay taxes to vote. Plaintiffs in this action hadargued that the election results, which resulted inan increase in per pupil expenditures from $681 to$811 in the local schools, should be disregardedbecause the state law limited the franchise in suchelections to "the registered qualified taxpayingelectors of the district." The Colorado SupremeCourt ruled that the exclusion of those who paidno taxes was unconstitutional.

The Colorado court relied on three UnitedStates Supreme Court opinions to reach thisconclusion: Kramer v. Union Free School District[395 U.S. 621 (1969)] ; Cipriano v. City of Houma[395 U.S. 701 (1969)] ; and City of Phoenix v.Kolodziejski [399 U.S. 204 (1970)] .

The counsel for the board of School DistrictNo. 11 of El Paso County had relied on Kramerand Cipriano when he advised inclusion ofnon-taxpayers. [The trial court found that enoughsuch persons had voted to change the results of theelection.] The rule that emerged from these caseswas that limitations on the electorate had to bebased on compelling state interest and couldexclude those citizens who were "primarilyinterested" or "primarily affected" by the electionresults. Kolodziejski, which was decided while theColorado case was being argued, held thatproperty owners and nonproperty owners alikehave a sufficient interest in public facilities andservices of the city to make unconstitutional thelimitation of the franchise to property ownersalone and further that property taxes areordinarily passed on to tenants and that mostnonproperty owners are tenants.

19

The Colorado court struck the word"taxpaying" from the questioned law [1969 Perm.Supp., C.R.S. 1963, 128-38-21] wherever itappeared in an unconstitutional context. Joe A.Cannon and David Barnhizer of the Westside LegalServices Office of Colorado Springs intervened inthe case in behalf of the non-taxpaying class.

SPECIALEDUCATION

BostonSUIT SEEKS END TO SLIPSHOD TESTING,PLACEMENT IN "SPECIAL" PROGRAMSStewart et al v. Philips et al, Civil Action No.70-1199-F (D.C. Mass.).

The Boston school system is defendant in asuit designed, in effect, to put the system's testingdepartment in receivership. The suit seeks toeliminate faulty classifications which result inimproper placement of children in specialeducation classes for the mentally retarded andalso to add parent participation to theclassification process.

Boston places children in classes for thementally retarded on the basis of a score of 79 orbelow on a single IQ test. The test used in Bostonis standardized on the basis of a white,middle-class group, which plaintiffs maintainresults in lower scores for dissimilar groups. Scoreson the test, plaintiffs further maintain, result froma wide variety of causes including emotionaldisturbance, perceptual difficulties, difficulty inspeaking English, or cultural differences, none ofwhich have any bearing on a judgment that a childis retarded. Investigations of the child's medicalhistory, school record, and family background arenot sufficient to turn up such influencing factors.The suit also charges that Boston's testers lacktraining to give the tests or make the backgroundinvestigations.

The suit charges that wrongful placement ofa child in a class for the mentally retarded whenthat child is not mentally retarded results inirreparable harm. None of the seven namedplaintiffs are mentally retarded, according toindependent psychological evaluations. All havebeen placed in classes for the mentally retarded.The harm comes from the stigma of beingclassified mentally retarded, as well as from the

20/INEQUALITY IN EDUCATION

nature of the instruction given in the classes,which is repetitive from year to year and does notallow the mentally retarded child to make anyforward progress.

The suit also charges that "the manner inwhich retardation is measured by defendantsnecessarily causes race and poverty to becomesignificant determinants of placement."

Plaintiffs seek compensatory and punitivedamages for each member of each plaintiff class.The suit also asks that the court establish aCommission on Individual Educational Needswhich would include representatives of a numberof public and private organizations interested inspecial education as well as parents of Bostonschool children. The commission would, in theremedy sought by plaintiffs, oversee a testingprocedure designed to eliminate the faults of thepresent system. The proposed system includesrequirements that each child be given a battery oftests (described in the complaint) designed to

detect all sources of low IQ scores; that the test begiven under the supervision of a psychologistwhose qualifications for such work satisfy thestandards of the American PsychologicalAssociation; that parents be given notice, access toall documents, and a prior hearing with respect totheir children's placement in special classes; thatmedical examinations and medical histories beincluded in the classification routine; and thatuntil the Boston schools have demonstratedcompetence to conform to these and other condi-tions that might be set by the commission, thetesting shall be contracted out to local psycholo-gists and mental health clinics, with the selectionof a particular psychologist to be left to theparents. Finally, the suit seeks re-testing of allchildren now in special education classes with teststo conform to these standards. Any child who isfound to have been misclassified, the suit asks, isto be placed in a special transitional, or "catch-up," school so that he will be in better shape tocompete with children whose educations have notbeen allowed to lapse because of classificationerrors.

The suit is being brought by Michael Altman

and Will Osborn of the Boston Legal AssistanceProject; the Center for Law and Education is ofcounsel. Defendants in the suit are members of theBoston School Committee and state and localofficials with administrative responsibility forBoston's testing and teaching programs in specialeducat ion.

CLASS ACTION IN MILWAUKEE SEEKS ENDTO WAITING LIST FOR RETARDED CHILDREN

John Doe et al v. Board of School Directors of theCity of Milwaukee, Case No. 377770, (CivilDivision, Circ. Ct., Milwaukee Cty., Wisc.) April13, 1970.

A class action seeking to end the practice ofplacing mentally retarded children on a waiting listfor special education classes has been filed inMilwaukee. The plaintiff and 30 other identifiedmembers of the plaintiff class have already beenplaced in special education classes, but no date hasbeen set for trial on the issues.

The suit charges that placing retardedchildren on a waiting list and providing noeducational services for them violates the federaland state constitutions as well as state statutes.Both the state constitution and statutes assert aright to attend public schools. State statutes alsorequire Milwaukee, but not other Wisconsin cities,to provide special education classes.

Judge Max Raskin of the Circuit Court ofMilwaukee county issued a temporary injunctionApril 13, 1970, ordering the city schools to find aplace for the plaintiff. The remaining members ofthe plaintiff class who had been identified wereadmitted to special classes this fall, but the waitinglist is still being used for new applicants, some ofwhom are out of school more than a year beforebeing placed.

The attorneys in the case are Sarah JoanBales of Freedom through Equality, the local 0E0legal services project, and John Scripp, a formerproject staff attorney now in private practice.

EQUALPROTECTION

CHINESE? ENGLISH? EQUAL PROTECTION?IT'S ALL GREEK TO COURT; APPEAL TONINTH CIRCUIT PLANNED

Lau et al v. Nichols et al (D.C.N.D. Cal.) CivilAction No. C-70 627, decided May 26, 1970,appealed to 9 Cir.

Failure to provide adequate instruction inEnglish to children for whom it is not the nativelanguage is a denial of their rights to an educationand to an equal educational opportunity,according to a suit filed on behalf of Chinesechildren against the San Francisco Unified SchoolDistrict. Judge Lloyd H. Burke ruled in DistrictCourt May 26 that, "These Chinese-speakingstudents receiving the same education madeavailable on the same terms and conditions to theother tens of thousands of students in the SanFrancisco Unified School District are legallyreceiving all their rights to an education and toequal educational opportunities. Their specialneeds, however acute, do not accord them specialrights above those granted other students."

The opinion noted that both parties hadstipulated that some two-thirds of theChinese-speaking children in the district got nospecial instruction in English whatsoever, and thatof the remainder, more than half received less thanan hour a day's help and from teachers who didnot speak their language.

Plaintiffs had argued that a right to aneducation assumed a right to learn English sincevirtually all instruction is conducted in English andalso because various citizenship duties for whicheducation is training could not be fulfilled withoutfacility in English. As causes of action, theyasserted that denial of the opportunity to learnEnglish constituted depriving the plaintiff classesof an education and of equal protection, and thatit was discrimination on the basis of race andnational origin. The suit also sought to establishviolation of a number of state laws relating tocompensatory and bilingual education. Plaintiffsargued that they were seeking parity under statelaw with other children with learning difficulties,such as the physically and mentally handicapped,

to page 22

21

Realistic, detailed study of participationCOMMUNITY

CONTROLCommunity Control: the Black Demand forParticipation in Large American Cities. Alan A.Altshuler. Pegasus. 1970. 238 pages. $6.95hardcover; $2.75 paperback.

Alan Altshuler has taken on the considerabletask of setting forth a rationale for communitycontrol in urban neighborhoods. His concern iswith the allocation of power, and with thenecessity that blacks share in that allocation.Altshuler begins not with an ideology but with asense of political crisis that requires management,and an injustice that requires rectification. Thesestarting points quite different from those whoassume that black hegemony is necessary, andwork their way backward to theirrationale force Altshuler to be political in thebest sense. He is aware of the complexity of hissubject: of the conflict of interests among all theparties, black and white; of the possibility thatpower devolution may increase these conflicts. Hehas read widely; he has also (to judge from hispreface) talked widely as well, and thatcombination has yielded a book which seeks to berealistic in its assessment of possibilities, and notmerely right in its theoretics.

The book capably marshalls arguments andcounterarguments addressed to the notion ofcommunity control. Altshuler deals briefly withthe gamut of questions that have been posed indiscussions of schools, poverty programs, police,etc.: these ranging from the anti-libertarianpotential of community control to the possibilitythat such control would be a dead end for the

from page 21and, specifically, that they were seekingenforcement of §71 of the California EducationCode, which, in the language of the section,"encourages bilingual instruction in order todevelop a greater proficiency in English" andstates that such bilingual education is

"educationally advantageous to the pupils."

Relief sought included preliminary andpermanent injunctions against linguisticdiscrimination and requiring the provision ofbilingual instruction in English. Plaintiffs also

22/INEQUALITY IN EDUCATION

black community. He is, for the most part, fair inhis statement of the arguments, and abundantlyfootnotes other sources of information.

The book is probably best that is, mostuseful in attempting to specify the conflicts, andthe trade-offs, that would arise in setting up adistricted system of urban government. While hisadoption of the district of 50,000-75,000 peo-ple as appropriate is somewhat hasty and ar-bitrary, his examination of the allocation offunctions representation, finance, personnel,contracting is not. These sections should proveinvaluable to lawyers who find themselvesaddressing the specifics of sub-districting in thecontext of particular issues. Altshuler's extendeddiscussion of the needs and perceptions of theprofessionals, for example, bears directly on thekinds of accommodation that will be necessary ifdecentralized school systems are to be permittedto function.

There is little indication that communitycontrol will yield social harm, or even exacerbatesocial tensions. There is some indication that itwill increase the legitimacy of local government.There are hopes that it may improve the quality ofthe offering available to those neighborhoodswhose spokesmen are currently demanding it. Thisvery unpredictability suggests the need for cautionin moving from centralized to decentralizedbureaucracy; it also indicates the feasibility ofsome movement in that direction. To the extentthat Community Control sets forth the guidelinesfor such movement, and in so doing moves thediscussion from the ideological debating table,Altshuler has performed a much-needed service.

David L. Kirp

sought the establishment of a testing program toassess the English-language abilities of allChinese-speaking children in the system and ajudgment declaring that the policies objected towere in violation of the state and federalconstitutions and state laws.

Although the suit was dismissed by theDistrict Court, the school system has increased thebudget for teaching English as a second language.Plaintiffs, however, de not feel that the program isadequate to the needs of these children, nor is itbig enough to accommodate all the Chinese

children who need it.

The case is being handled by Edward H.Steinman and Charles J. Wong of the

Chinatown-North-Beach office of the San

Francisco Neighborhood Legal AssistanceFoundation. The appeal is now pending before the9th Circuit Court.

STUDENT RIGHTSPressPRIOR RESTRAINT ON STUDENT PRESSSTILL PERMITTED DESPITE DEVELOPMENTS

A number of recent federal court decisionslimit, but do not prohibit, prior restraint ofstudent publications. In none of the three casesreported here was the form of prior restraintengaged in by school authorities approved.

Rowe v. Campbell Union High School District,Civil Action No. 51060 (D.C.N.D. Cal.) September5,1970.

Zeltzer v. Campbell Union High School District,Civil Action No. 51501 (D.C.N.D. Cal.) September5,1970.

A California statute and a local school policyprohibiting distribution of printed matter onschool campuses without prior approval of formand content by school officials have been declaredunconstitutional by a three-judge panel.

The court ruled that the statute [Cal. Educ.C. §§9012-13] and the local policy statementwere impermissibly broad. The court stated thatdefendants' arguments that students wereimmature did not lead to the conclusion that allprinted matter should be prohibited, but only thatcertain, well-defined limitations are called for.Students in the cases had been threatened withsuspension.

The court, which based its ruling in largepart on Tinker, was moved to comment ondefendants' notions as to what constituteddisruption. The court stated that there were twokinds of disruption, which it termed intellectualand physical:

"The primary thrust of the former categoryis that students are entitled to an`unimpaired' education; that theadministration should have control over

virtually all of a student's intellectual experi-ences during the school hours in order toinsure the type of education it deems best;that the contrary, disagreeable, and impolitecontents of the student publications notauthorized by the school officials disruptthis 'controlled' situation. This concept of`disruption' is simply unacceptable underTinker."

"The other major contention in the 'intel-lectual' branch of the disruption argument isthat distribution of these papers, which areoften critical of the faculty and administra-tion, will impair the effectiveness of thecriticized parties by reducing students'respect and confidence in them. This conten-tion has been made and rejected in a numberof 'school' cases."

As for physical disruption, the court saidthat it was subject to "narrower, more particularregulation." The court stated that the time, place,and manner of distribution could be set by theschools and that obscenity and advocacy ofviolation of school rules could be subject to priorrestraint. The court asked the school board tosubmit within 90 days a proposed regulation ondistribution and dissemination of printed materialson the school grounds.

Eisner et al v. Stamford Board of Education, CivilAction No. 13220, (D.C. Conn.) July 2,1970.

Plaintiffs, students at Rippowam High

School, Stamford, Conn., were threatened withsuspension if they continued to distribute theirmimeographed underground newspaper at theschool. The school at that time had a rule against"using pupils for communications." This rule wasexpanded to prohibit any distribution on campuswithout prior approval by school officials ofcontent and manner of distribution. In grantingplaintiffs' motion for summary judgment, thecourt ruled that the regulation wasunconstitutional blanket prior restraint on freespeech. The court stated that prior restraintrequires strong justification because it is usuallyundesirable, but that in schools there might be"constitutionally valid" reasons for restricting free

23

speech. One such reason suggested by the courtwas to prevent disruption, but no disruptionoccurred in the Eisner situation. The court furtherstated that any school control over publicationsshould be limited by procedural safeguards, amongwhich it listed specification of the manner ofsubmission, the party to whom submission mustbe made, and the time within which a decisionmust be rendered. Such safeguard should alsoinclude an adversary proceeding for settlement ofdisputes and the right of appeal.

The court further remai::ed,

"The remedy for today's alienation anddisorder among the young is not less butmore free expression of ideas. In part, theFirst Amendment acts as a 'safety valve' andtends to decrease the resort to violence byfrustrated citizens. Student newspapers arevaluable educational tools and also serve toaid school administrators by providing themwith an insight into student thinking andstudent problems. They are valuablepeaceful channels of student protest whichshould be encouraged, not suppressed."

Risen= et al v. School Committee of Quincy,Civil Action No. 70-964-F, September 29, 1970.

The First Circuit Court of Appeals has issueda temporary restraining order stopping the Quincy,Massachusetts, board of education from enforcingrules on distribution of unapproved literature onschool grounds. The Appeals court also orderedthat plaintiff be permitted to proceed in formapauperis.

otA

A

.

24/INEQUALITY IN EDUCATION

The plaintiff is a Quincy schoolboy who wassuspended last spring for five days for distributingliterature on the April 15 Vietnam Moratorium oncampus. School officials employed a rule designedto prohibit advertising to stop Riseman'sdistributions. Riseman is attacking the school ruleon the grounds of vagueness, denial of free speech,denial of due process, and overbroadness.

Appeal was made on the denial of atemporary restraining order by the District courtin Boston. The Appeals court's order specificallystated, "Students shall have the right to engage inorderly and not substantially disruptivedistribution of such papers on the school grounds,provided that neither the distributors nor thedistributees are then engaged, or supposed to beengaged, in classes, study periods, or other schoolduties." The right to determine time, place, andmanner of distribution was left with schoolofficials. Michael Altman of the Boston LegalAssistance Project and Carolyn Peck of the Centerfor Law and Education are attorneys in the action.

STUDENT ADVOCACY CENTER IN DAYTON;EXPERIMENT IN EDUCATIONAL LITIGATION

A concerted effort to use the courts and thelegal approach to influence educational policy inthe public schools of a single city will be made bythe Center for the Study of Student Citizenship,Rights, and Responsibility in Dayton, Ohio. Thecenter, which is financed by the Office ofEconomic Opportunity and housed at CentralState University, will attempt to build a constitu-ency of consumers of education to whom thepublic schools will feel answerable.

In its initial year, the center proposes toengage in programs designed to increase the

SO KID. YOU 1HOUSNT YOUCOULD SNEAK A SMOKE.

a.IA

1

amount of information available to the public onthe operation of the schools and to encouragepeople to press their grievances against the pro-grams and policies of the schools. The center hasalready interested itself in dropouts, disciplinaryprocedures, relative availability of resources andservices, and special education.

The director of the center is Art Thomas,former education director of Dayton Model Cities.He was fired from the post after he led blackstudents out of a Dayton high school during racialdisturbances there. He is suing to protest thedismissal. Thomas is black, but the activities of thecenter are not limited to black students.

"Vague and confused"NO CONSTITUTIONAL RIGHT TO SIT OUTPLEDGE OF ALLEGIANCE IN HICKSVILLE

Richards v. Board of Education Union Free SchoolDistrict #17, Civil Action No. 70-C-625(E.D.N.Y.) July 10,1970.

Suspension of a student for refusal toparticipate in patriotic exercises has been upheldby Judge Anthony J. Travia of the federal Districtcourt for the eastern district of New York. Thejudge ruled, in dismissing an action brought by astudent at Hicksville Junior High, Hicksville, L.I.,that no grounds for a constitutional claim wereinvolved in a school rule that required him tostand silently or leave the room during therecitation of the Pledge of Allegiance and singingof the National Anthem.

Although the defendant did not testify incourt, the judge relied on the transcript of a schoolboard meeting at which he had presented his caseto reach the judgment that his refusal to stand wasbased on "vague and confused feelings." The judgequoted the following testimony in his opinion asindication of Richard's feelings:

"Well, I told them that I didn't feel thatthere is liberty and justice for all in thiscountry, so I felt that it is a non-existentthing, and I didn't feel that I was pledging toideals, I felt although I do believe in thoseideals I felt that I was pledging to a thingthat is written, or that is believed by manypeople, that is a fallacy."

The youth also told the board that the StarSpangled Banner was a "war-monger" song.

Richards had been suspended five days forinsubordination after he sat down during patrioticexercises. After distinguishing the case from casesin which children's religious beliefs were affrontedand after stating various state laws requiring"instruction in patriotism and citizenship," thecourt stated that the plaintiff's acts were notprotected under Tinker v. Des Moines [393 U.S.503 (1969)] because they were accompanied bydisruption. The Tinker case specifically does notprotect free speech in schools when it producesdisruption, although it also states that fear ofdisruption is not sufficient grounds for limitingfree speech.

According to Travia's opinion, thedisruption consisted of "unfriendly facial motionsof other students" attested to by the teacher, and"derogatory comments" made by other studentson two occasions. This, the teacher had testified,interrupted the taking of roll and otheradministrative work which had to be done by theteacher during the ten-minute homeroom period.The patriotic exercises took three minutes, he said,and even without other interruptions hefrequently is rushed to complete this work.

Tinker, however, also notes:

"Any departure from absolute regimentationmay cause trouble. Any variation from themajority's opinion may inspire fear. Anyword spoken ... that deviates from theviews of another person may start an argu-ment or cause a disturbance. But our Consti-tution says we must take this risk . . . ."

Tinker also states that it is disruption of theeducational process that is to be avoided.

The Richards opinion noted but did notdiscuss, Frain v. Baron [307 F. Supp. 27(E.D.N.Y. 1969)] , in which the factual situationwas strikingly similar. In Frain, New York Citystudents brought an action in the Eastern Districtobjecting to requirements that they leave the roomor stand silently during recitation of the Pledge ofAllegiance. These students objected to the samephrases in the Pledge on the same grounds with thesame justification. The Frain court stated that,"The policy of the New York City Board ofEducation is a sincere attempt to prevent disorderswhich may develop as the reaction of infuriatedmembers of the majority to the silent dissent

25

expressed by plaintiffs. The flaw in the policy isthat the constitution does not recognize fears of adisorderly reaction as ground for restrictingpeaceful expression of views."

The Frain decision, written by Judge OrrinG. Judd, issued a preliminary injunction haltingthe practice and asking for further argument.

An appeal is being entered in the Richardscase. The Center for Law and Education is ofcounsel. The plaintiff will argue on appeal that thedisruption cited in the Richards opinion was notsufficiently serious, even under the Tinkerexception, to warrant a five-day suspension. Nodisciplinary action was taken against those whodiffered publicly with Richards. The appeal willalso be directed toward the articulation of astandard on what constitutes behavior underTinker that "materially disrupts classwork orinvolves substantial disorder or invasion of therights of others." [393 U.S. 503,513] .

.14Y.einV.:464.v.:''ciV::SVP'SSV:

EDUCATION RIGHTS ATTORNEY

The Center for the Study of Student Citizen-ship, Rights, and Responsibilities [seeabove] is seeking an attorney to engage in awide variety of education litigation. Pleasewrite to Art Thomas, Director, 5309 East-port Avenue, Dayton, Ohio 45418 statingqualifications and requirements.

NOTES ON CONTRIBUTORSJerome T. Murphy, now a doctoral candi-date at the Harvard Graduate School ofEducation, was a member of the legislativestaffs of the Office of Education and theSecretary of Health, Education, and Welfarefrom 1964 through 1968. In 1968 and 1969he was associate staff director of theNational Advisory Council on the Educationof Disadvantaged Children. David L. Kirp isdirector of the Center for Law and Educa-tion. Tom Parmenter, bon vivant, is alsoeditor of Inequality in Education.

26/INEQUALITY IN EDUCATION

UNION TEACHERS BACK STUDENT RIGHTS

The annual convention of the AmericanFederation of Teachers adopted a resolution on"democratization of the schools" calling forgreater student freedom from school-imposedregimentation. The resolution, adopted August 19,1970, stated that students should have freedom ofspeech and expression, including freedom of dressand grooming, freedom to picket or petition, andfreedom to publish and distribute literature onschool grounds, as well as freedom of assemblyand association, including the right to organize atschool, all without "repression by administratorsor teachers."

SUPREME COURT LETS SCOVILLE STAND

On October 12, 1970, the Supreme Courtdenied a petition for certiorari by the defendantschool board in Scoville v. Board of Education ofJoliet Township High School District 204. TheAppeals Court decision, discussed in some detail inInequality in Education, Number Five, upholdsthe right of high school students to distribute"material critical of school policies and authori-ties" on school grounds.

INEQUALITY IN EDUCATIONNumber Six, November 13, 1970Center for Law and EducationPublisher38 Kirkland StreetCambridge, Massachusetts 02138

Co-Chairmen:Abram ChayesHarvard Law School

David CohenHarvard Graduate School of Education

Director: David Kirp

Editor: Tom Parmenter

Production and Circulation: Kathryn A. Wright

The Center for Law and Education is aninterdisciplinary research institute establishedby Harvard University and the United StatesOffice of Economic Opportunity to promotereform in education through research andaction on the legal implications of educationalpolicies, particularly those policies affectingequality of educational opportunity.Inequality in Education is distributed sixtimes a year.

Clothing; Comparability; Parents; Standing

TITLE IPARENTS OF EDUCATIONALLY DEPRIVEDMAY SUE ON TITLE I, COURT RULES

Colpitts et al v. Richardson et al, Civil Action No.1838 (D.C. Me. October 20, 1970).

In an important decision, a federal Districtcourt in Maine has held that parents of poor andeducationally disadvantaged children have standingto sue to enforce Title I of the Elementary andSecondary Education Act of 1965 [20 U.S.C. Sec.241a et seq] , and that federal courts have juris-diction over such an action.

This class action was brought by a parent ofeducationally deprived children in Calais, Maine onbehalf of her children and all other disadvantagedchildren in the Calais system. Plaintiffs contendthat although Title I was enacted by Congressspecifically to help local school districts meet thespecial educational needs of poor children, theCalais School Unit has used a substantial portionof Title I funds for general school purposes whichonly incidentally benefit the "target children"who are the sole beneficiaries of the Act. Thedefendants, the local, state and federal educationalofficials responsible for the administration of TitleI in Calais, have denied plaintiffs' allegations andalso moved to dismiss the action on the groundsthat the plaintiffs lack standing and the court lacksjurisdiction.

On October 20, 1970, at the conclusion of ahearing, Judge Edward T. Gignoux denied themotions to dismiss. Citing, inter alia, Flast v.Cohen [392 U.S. 83 (1968)] , Peoples v. U.S. [427F. 2d.561 (D.C. Cir. 1970)] , and Gomez v. Florida[417 F. 2d. 569 (5th Cir. 1969)] , the court heldthat parents of Title I "target" children havestanding to seek judicial enforcement of Title Isince such children are the intended beneficiariesof the Act. [20 U.S.C. Sec. 241a.] The court alsoagreed with plaintiffs' contention that the "rightto an education" secured to each plaintiff by TitleI is itself such a precious and important right thatthe court could not conclude "to a legal certainty"

that less than $10,000 was "in controversy" as toeach child. [St. Paul Mercury Indemnity Co. v.Red Cab Co., 303 U.S. 283, 288 (1938).] Sinceplaintiffs' claims arose under a federal statute, thecourt concluded that it had jurisdiction as againstall defendants under the "federal question" juris-diction statute [28 U.S.C. Sec. 1331(a).]

The Secretary of Health, Education andWelfare (HEW), the U.S. Commissioner of Educa-tion, and the Maine Commissioner of Educationalso pressed upon the court the contention thateven if there was standing and jurisdiction toenforce Title I against the local Calais defendants,the plaintiffs have no cause of action to enforceTitle I against them. But the court held thatinsofar as the complaint alleged that state andfederal officials have failed to perform statutoryduties to enforce Title I in Calais, and that suchfailure has adversely affected the rights of theplaintiffs, the complaint stated a cause of actionagainst state and federal as well as against localdefendants. The court expressly reserved opinion,however, as to what relief might be appropriateshould plaintiffs later succeed in proving theallegations of their complaint.

Plaintiffs are represented by George S.Johnson of Pine Tree Legal Assistance and MarkG. Yudof and Jeffrey W. Kobrick of the Center forLaw and Education. The Secretary of HEW andthe U.S. Commissioner of Education are repre-sented by Peter Mills, United States Attorney, andJohn B. Wlodkowski, Assistant United StatesAttorney. The Maine Commissioner of Educationis represented by Charles R. Larouche, AssistantAttorney General. Calais school officials are repre-sented by Francis A. Brown, of Calais.

COURT ORDERS PARENTAL PARTICIPATIONIN SAN JOSE'S TITLE I PROGRAMS

Sanchez et al v. Rafferty et al, Civil Action No.C-70 1633, 1970.

Plaintiffs in a Title I suit brought against theSan Jose, Cal., Unified School District have gaineda significant degree of parental participation incompensatory education through a consent decree.

27

The decree provides that the school districtenter into a contract with some agency responsiveto the needs of parents of disadvantaged childrenand to the communities from which they come.The agency's responsibility will be to effect"meaningful parent and community participationin the planning, operation, and appraisal of allTitle I programs in the district and the regulations,guidelines, and program guides promulgatedpursuant thereto."

The decree also included a minimum defini-tion of meaningful participation. The communityadvisory committee for Title I is to be composedof at least 75 per cent parents or communityrepresentatives. School employes who otherwisefit that description are to be counted as repre-senting the district. The committee is to partici-pate in all policy making for Title I, although finalapproval remains with the school board. Policydecisions of the community board cannot be madeunless 51 per cent of those present and voting areparents or community representatives. The districtis to supply comprehensive information on itsTitle I projects including education and trainingfor members of the advisory committee. Ifmembers of the committee request it, meetingswill be conducted in Spanish as well as English.Members of the committee are to be "permittedand encouraged" to visit the schools and discussthe programs with teachers and school officials.The school district will make an annual inde-pendent financial audit of the Title I program. Theadvisory committee is to prepare for the statesuperintendent and the U.S. Commissioner ofEducation an annual evaluation of the program;the school system is not to participate in theevaluation except by providing information asrequested; the advisory committee can seekoutside consultation if it wishes.

Plaintiffs were represented by StephenManley, Grace M. Kubota, William Dawson, JoelG. Schwartz, and James N. Ono of the Santa ClaraCounty Legal Services Project of San Jose.

28/INEQUALITY IN EDUCATION

CONTINUING SAGA OF COMPARABILITY;CONGRESS SETS NEW JULY 1972 DEADLINE

The U.S. Office of Education has once againissued regulations requiring that services offeredby a school district to Title I schools be compar-able with those offered in non-Title I schoolsbefore the effects of Title I are added in, but theexceptions to the rule may prove more importantthan the rule. The new requirements will not takeeffect until July 1972.

The regulations require that school systemssubmit financial data showing expenditures ofstate and local funds in Title I and non-Title Ischools showing teachers' salaries, salaries of otherinstructional personnel, costs of equipment andbooks, and the ratio of teachers and other instruc-tional personnel to children. If this data showsmore than 5 per cent variation between schoolsreceiving Title I funds and schools not receivingthem, USOE requires submission of a plan forcorrection of the discrepancies. This data and theplans are to be submitted by July 1971. Therequirements will be enforced through inter-vention and mediation by state education agenciesand USOE as well as by fund cutoffs.

The new regulations bear a close resem-blance to the memorandum on comparabilityissued by USOE last spring. [See Inequality inEducation, Numbers Three and Four, page 37.]This memorandum was quickly scotched byCongressional action moving the deadline to 1972.[See Inequality in Education, Number Five, page22.] But there are important differences.

First, there is the question of teachers'salaries, which are by far the most importantsource of differences in per pupil spending. Themost important source of differences in teachers'salaries is seniority pay, but the new regulationsexempt differences in per pupil costs due to differ-ences in seniority pay from the computation ofcomparability. Teacher seniority pay was includedin the spring memorandum. The new regulationdoes require that differences in teachers' pay dueto merit raises or special training should beincluded in calculating comparability.

The second significant aspect of the newguideline is that the relevant comparison is madebetween schools actually receiving Title I fundsand those not receiving such funds. Districts have

discretion to target funds to any school which hasa higher than average concentration of poorchildren. This means that districts will be able topick those schools in the eligible group with thehighest per pupil expenditures and then averagethe schools with low per pupil expenditures(which are eligible but not receiving Title I funds)with the non-eligible schools with high per pupilexpenditures. This will lead to two results:

Title I aid will not be going to the neediestschools;

The district will not be found in violation ofthe comparability requirements.

COMMUNITY PARTICIPATION SUPPORTEDIN THIRD CIRCUIT MODEL CITIES CASE

North City Area Wide Council, Inc., et al v.

Romney, No. 18,466, (3d Cir) July 14, 1970.

The Third Circuit Court of Appeals has givenstrong support to community participation in

federal programs in an opinion on administrationof the Model Cities program in Philadelphia. Inreaching its opinion, the court relied on require-ments in the Demonstration Cities Act [42U.S.C.A. §3301 et mg] of "widespread citizenparticipation" and on repeated policy statementson community involvement by the federal pro-gram administrators. The Department of Housingand Urban Development had objected toPhiladelphia's programs, according to the opinion,"because of insufficient involvement by the cityand too much reliance on AWC in both operationand evaluation of the program." AWC is the NorthCity Area Wide Council, a coalition of communityorganizations which had contracted with the cityto provide citizen participation. Philadelphiaresponded to HUD's request by substantiallyreducing AWC's role in the program. This changein the program was made unilaterally, withoutAWC's participation. The grant then came throughfrom HUD and the city began setting up a newcommunity group to replace AWC which refusedto continue its participation under the newcircumstances. AWC then brought a class actionseeking to stop the program until the legality ofthe changes was established. The District dismissedthe suit for lack of standing on the part of AWCand further held that neither the city nor HUDhad violated any acts or regulations.

The question Of standing was not pressed bythe government because of recent Supreme Courtdecisions [See Association of Data ProcessingService Organizations, Inc. v. Camp, 397 U.S. 150(1970); Barlow v. Collins, 397 U.S. 159 (1970)] .

The government did argue that the action was notreviewable because it was "agency action .. . com-mitted to agency discretion by law" [5 U.S.C.§701(a)(2)] . The court stated that this assertionwas incorrect and that the question concernedagency conformity to statutory requirements,which is reviewable.

The court ruled that both HUD and the cityhad violated the Demonstration Cities Act bymaking fundamental changes in the programwithout community participation:

"As noted above, the issue is not citizen vetoor even approval, but citizen participation,negotiations, and consultation in the majordecisions which are made for a particularModel Cities Program. While not everydecision regarding a Program may requirefull citizen participation, certainly decisionswhich change the basic strategy of the Pro-gram do require such participation."

Although the court stated that the com-munity participation requirements of the Demon-stration Cities Act were novel, they bear a strikingresemblance to the Title I regulation calling for"maximum practical involvement of parents ofeducationally deprived children in the area to beserved in the planning, development, operation,and appraisal of projects. .. ." [45 C.F.R. Sec.116.8(0] .

LAW & EDUCATION CENTERIN NEW HOME

The Center for Law and Education hasmoved to new quarters, providing us amplespace to house our enlarged staff ofattorneys. The new address is:

Center for Law and EducationHarvard University38 Kirkland Street

Cambridge, MA 02138.

Our phone number is 617-495-4666.

29

PROVIDENCE SUIT ALLEGES TYPICALRANGE OF URBAN TITLE I VIOLATIONS

Babbidge v. Richardson, Civil Action No. 4410(D.C.R.I.), filed September 11, 1970.

A lawsuit asserting a wide range of Title Iviolations, many of them typical of the sort foundin northern urban school systems, has been filedby a group of poor parents against the Providence,R.I., school board and against the federal and stateagencies and officials responsible for overseeingthe Providence programs.

Central issues raised by the suit are parentalinvolvement in the Title I process, use of Title Ifunds for the benefit of ineligible children, and useof Title I funds to purchase for poor children whatstate and local funds purchase for others.

The suit questions the spending of some $9million in Title I funds since the beginning of theprogram in 1965, both as a matter of contractbetween the three levels of government and as amatter of conformity to federal regulations, andguidelines which have the force of law.

In its first three years of Title I operations,Providence had no parental involvement in Title Iwhatsoever. In the fourth year, 1968, a committeewas appointed by Providence school officials.Many of the members of the committee wereProvidence school officials or parents employed bythe school system. By 1969, a more representativeparents' committee began to emerge from the poorcommunity.* This group began to press for morepower, including taking away the voting power ofall school department personnel and giving theparents' committee a veto over project applica-tions. A year after these community-based changesbegan, the parents' group voted to investigatecomplaints about the city's programs. Accordingto the complaint in the suit, they were afforded nocooperation and their suggestions were summarilydismissed. By April 1970 the committee had beendisbanded under pressure from the city superin-tendent of schools and a new committee, withoutveto power, was formed.

The suit alleges that only once have anyparents been permitted to make an adequateexamination of the city's Title I proposals. In thatinstance, in 1970 examination was permitted onlyafter two members of the committee filed suit instate court and obtained an injunction. Even so,

30/INEQUALITY IN EDUCATION

the committee did not receive copies of the 1970summer application until four days before it wasto be submitted to the state education departmentfor approval. The committee asked the state formore time, but the request was refused, althoughthe city did promise to deliver the 1970-71 appli-cation to the committee by June 15. The com-mittee received it July 27, just four days before itwas due to be submitted to the state department.Nor has other information on the Title I programbeen made available to parents, the suit charges.

The suit attacks the Providence concen-tration formula, which makes any child eligible forTitle I services, regardless of family wealth, wholives in a census tract with a proportion of poorchildren higher than that of the city as a whole.

Violations of the supplement-not-supplantstandard are also alleged in the suit. Title I funds,it is stated, are used to provide services forchildren in the eligible areas which are identicalwith services paid for elsewhere out of state andlocal funds. These suspect programs includeremedial reading services, special education classes,and guidance counselling.

A further basis for the suit is found inProgram Guide 44, Guideline 4.7, issued by theU.S. Office of Education, which requires that TitleI funds add 50 per cent to the state and localallocation per pupil. Providence adds only aboutone-quarter to its non-federal Title I expenditures,$200 in Title I funds and about $900 in state andlocal funds.

Remedial action sought in the suit includesinjunctions requiring conformance to the laws,regulations, guidelines, and assurances of the TitleI process on the part of local, state, and federalofficials, establishment of an information programon Title I for parents, affirmation of the power ofthe parents' advisory committee to take a signifi-cant part in the Title I process (including hearingcomplaints, preparing a general plan, and assistingin choosing personnel).

The suit also asks appointment of a masterto run the Title I programs in Providence untilthey are brought into conformance with the laws,and, finally, that illegally expended Title I fundsbe reallocated to lawful Title I projects.

Attorneys in the action include Cary J.Coen, Joseph F. Dugan, and Harold E. Krause Jr.,

of Rhode Island Legal Services; Mark G. Yudofand J. Harold Flannery of the Center for Law andEducation; and Michael B. Trister of theWashington Research Project of the SouthernCenter for Policy Studies.

MASSACHUSETTS STATE BOARD ADOPTSSTRONG PARENT INVOLVEMENT RULES

The Massachusetts state board of educationhas adopted guidelines for parent involvement inTitle I that go beyond the new federal guidelinesdiscussed elsewhere in this section. [page 32]

The Massachusetts guidelines were adoptedafter negotiations between the staff of EducationCommissioner Neil V. Sullivan and the Title I TaskForce, a coalition of 25 Community ActionPrograms with more than 20 other groups,including the Massachusetts Welfare RightsOrganization, the state Office of Economic Oppor-tunity, the Center for Law and Education, CapeCod and the Islands Legal Services, the BostonTitle I Enrichment Advisory Committee, and anumber of other community organizations.

The Massachusetts guidelines differ mostimportantly from the new federal guidelines inspecifying that advisory council members beelected (in elections established in cooperationwith local community organizations) and inincluding an appeals procedure in cases where theadvisory council and the local education agencydiffer.

The guidelines, which were adopted by theboard on October 27, before the federal rules werereleased, appear below. The board's recommenda-tions, which have no legal force, are omitted.

GUIDELINE I The local education agency(LEA) shall establish a Title I parent advisorycouncil or councils that represent parents of publicand non-public school children receiving Title Iservices and living in eligible attendance areas asdefined by Title I Regulations. In determining thesize and number of parent advisory councils theLEA shall ensure parent representation from eachschool receiving Title I services.

GUIDELINE II The local education agency shallprovide for a parent advisory council (councils)elected by the parents of public and non-publicschool children receiving Title I services and livingin eligible attendance areas, as identified inGUIDELINE I. The LEA shall, in formulating

v

elective procedures, involve local organizationswhich serve educationally disadvantaged childrenand their families.

GUIDELINE III The LEA shall provide parentadvisory councils with the means to supplyinformation concerning parents' and children'sviews about unmet educational needs in Title Iproject areas, recommend priorities among thechildren's educational needs and methods ofsatisfying those needs, and participate in theplanning and appraisal of Title I programs.

GUIDELINE IV The local education agencyshall develop and maintain an information,training and technical assistance program forparent advisory council members. Such informa-tion shall include copies of official applications,and other accessible government programs foreducationally deprived children and suchdocuments and records as are available to thegeneral public, as provided for by Public Law91-230, Section 110.

GUIDELINE V The local educational agencyshall submit a written description of its compli-ance with these Title I guidelines for parentinvolvement with each application for a Title Iproject to be funded after June 30, 1971. Suchdescription shall outline the procedure used toestablish parent advisory councils and includeassurance that each parent advisory council isrepresentative, describe the LEA's information,training and technical assistance program forparent advisory council members, and explain howthe parent advisory council or councils have beeninvolved in planning the proposed project.

GUIDELINE VI If a parent advisory council'swritten comments about the completed Title Iproposal raise substantial doubt concerning theeffectiveness of the project, the LEA and theparent advisory council may be required to furnishadditional information before a final determina-tion is made by the SEA. The LEA or the parentadvisory council chairman shall have the right ofappeal to the Commissioner of Educationregarding the implementation of any Guidelinecited herein.

31

MODELING IN FRONT OF 3-WAY MIRROR,USOE TRIES ON CLOTHING GUIDELINES

The United States Office of Education isattempting to establish guidelines on the use ofTitle I funds for clothing. Community groups in anumber of cities have been seeking such funds onthe grounds that adequate clothing is a pre-requisite for a good education, but most educatorsfeel that the funds that are available to them arebetter spent on items directly related to education,such as books and teachers. The idea is contro-versial and USOE's three memorandums on thesubject reflect that controversy.

Guideline No. 60, issued August 14, 1970,stated that purchase of clothing under Title I

programs would be permitted in certain circum-stances. There had to be documentation of theneed for the clothing, including evidence thatfunds for clothing could be gotten nowhere else.The clothing could be provided only to childrenparticipating in Title I programs and not tochildren eligible but not in a program. The guide-line also required that adequate controls forprovision of clothing, including evaluation of theeffectiveness of the clothing component, beestablished. Clothing was only to be purchased aspart of a comprehensive Title I program. Thememorandum on the guideline was signed byThomas J. Burns, acting associate commissionerfor elementary and secondary education.

On September 15, over the signature ofActing Commissioner T. H. Bell, Guideline No.60A was issued. 60A "expands and clarifies" 60,according to Bell. 60, Bell said, "was intended to

be read as discouraging across-the-board clothingexpenditures under Title I." Additions made in60A included a prohibition on direct payments tochildren or parents, a prohibition of flat rates forclothing allowances, a restatement of the require-ment that clothes be supplied only to childrenparticipating in Title I activities [and quoting,without a trace of a smile Section 116.17(g) of theTitle I regulations, which state that "Each projectmust be tailored . . . toward meeting . . . the . ..

32/INEQUALITY IN EDUCATION

needs of educationally deprived children. . . .

Emphasis added.] , and stating that clothingexpenditures could not be increased over those ofthe previous year, although few programs includedclothing at all last year.

Then, on October 16, Bell issued GuidelineNo. 60B, which cancelled the prohibition onincreasing expenditures over the previous year.60B went on to state that the national average perpupil expenditure "for each child for whomclothing was provided" was about $12. The rangeof state averages of per pupil expenditure "foreach child for whom clothing was provided" was$1 to $29. Presumably these figures representspending for clothing only and are intended toserve as guides for states in judging how muchshould be spent on clothing under Title I, althoughneither point is clear from 60B.

There are 26 letters in the English alphabet.

USOE PREPARING GUIDELINES ON PARENTPARTICIPATION, COMMENTS INVITED

The United States Office of Education hasannounced that it is preparing regulationsrequiring parental involvement in projects paid forunder Title I, ESEA. The announcement was madein a memorandum to chief state school officersreleased October 30 and reprinted below.

USOE has asked for comments on theproposed guidelines. A group of organizationswhich have been interested in increasing com-munity participation in Title I programs expressedgeneral satisfaction with the proposals but made anumber of specific criticisms in a letter toUSOE. The group asked that Section A bechanged to make it clear that parents of eligiblechildren rather than of children being served byTitle I make up the parent councils and that suchcouncils be established in every school where TitleI funds are allocated and not simply for the wholeschool system. The letter also asked that Item 6under Section B include a statement that trainingand technical assistance for parent councils is aproper use of Title I funds. Finally, the groupsought establishment of an appeals procedure.They suggested that each local application to thestate for Title I funds be accompanied by a state-ment by the parent council, setting forth agree-ment and disagreement with the application. Itwould be the duty of the state to settle such

differences, the letter suggested. The letter alsoasked that the guidelines be clearly labelled asminimum requirements so that states might gobeyond them if they wished.

The letter to USOE was signed by repre-sentatives of the League of Women Voters, theNational Welfare Rights Organization, the NationalCommittee for the Support of Public Schools, theNAACP Legal Defense and Education Fund, Inc.,the American Friends Service Committee, the Lawand Education Center, the National Council ofNegro Women, and the Washington ResearchProject of the Southern Center for Policy Studies.

After setting forth the statutory basis for theproposed guideline [§415 of Title IV of P.L.90-247, as amended by P.L. 91-230] which givesShe commissioner authority to issue rules andregulations on parent participation, ActingCommissioner T. H. Bell's memorandum, issuedOctober 30, states:I have, in accordance with the statute, determinedthat parental involvement at the local level is

important in increasing the effectiveness of pro-grams under Title I of the Elementary andSecondary Education Act. Accordingly, regula-tions which are being developed currently willrequire that each Title I application of a localeducational agency (other than a State agencydirectly responsible for providing free publiceducation for handicapped children or for childrenin institutions for neglected or delinquentchildren) shall include:

A. An assurance that the local educationalagency has established a system-wide councilcomposed of parents of children to be servedin public and non-public schools partici-pating in Title I activities. Where therealready exists a group whose membershipincludes a majority of parents of children tobe served or whose membership may be somodified as to include a majority of parentsof children to be served, such a group maycarry out the functions of a parent ty-iuncil.Members of such a council must be chosenin such a manner as to ensure that they arebroadly representative of the group to beserved. In addition, each local educationalagency is encouraged to form similarcouncils at each school participating in TitleI activities.

B. A description of the program conducted by

the local educational agency to informparents and parent councils on Title I in

general and the project applied for in partic-ular. Specifically, the local educationalagency must state how it has developed andmaintained an affirmative information pro-gram for parents and how it has and willprovide parents open access to informationat appropriate times and in appropriatedetail, and if requested records at reasonablecost, on the following subjects:

1. The provisions of Title I and Title I

Regulations;

2. The local educational agency's past Title Iprojects and programs, and the evaluationof those projects and programs specialemphasis might be placed on the district'sassessment of the best projects conductedunder Title I;

3. The Title I projects and programs whichthe local educational agency is currentlyconducting;

4. The local educational agency's plans forfuture Title I projects and programs,together with a description of the processof planning and developing those projectsand programs, and the projected times atwhich each stage of the process will startand be completed;

5. Other Federal, State, and local programswhich may be available for meeting thespecial educational needs of educationallydeprived children;

6. The means by which parents may beincluded in the planning, development,and operation of Title I projects andprograms; and

7. Such other information relating toparents' efforts to involve themselves inthe planning, development and operationof Title I projects and programs asparents may reasonably seek.

C. A description of the activities conducted bythe local educational agency to involve itsparent council in the planning and develop-ment of the Title I project application.Specifically, the local educational agencymust state how:

1. Appropriate school officials have been

33

available for consultation with the parentcouncil on the content, administration,and evaluation of completed, existing andfuture Title I projects and programs atwell-publicized times and places con-venient to parent councils and/or repre-sentatives of their own choosing;

2. A procedure has been established toanswer the questions of the parentcouncil concerning the planning, develop-ment, and operation of a Title I projector program;

3. The parent council has had the right toinspect and obtain a reasonable numberof copies of official applications, andother pertinent files, documents, andrecords free of charge;

4. Views of the parent council concerningthe unmet needs of children residing inTitle I project areas, and any priorityassigned to those needs, have beenincorporated into the local educationalagency's planning process; and

5. Views of the parent council concerningthe concentration of funds and services inspecific schools and grade levels havebeen incorporated into the local educa-tional agency's program developmentactivities.

D. A description of the activities planned bythe local educational agency to involveparents in the operation of the Title I

project or program for which funds aresought. Specifically, the local educationalagency must state how its parent council willbe afforded an opportunity to:

1. Provide suggestions on improving projectsor programs in operation;

2. Voice complaints about projects or pro-grams and make recommendations fortheir improvement ;

3. Participate in appraisals of the program;and

4. Promote the involvement of parents inthe educational services provided underTitle I of the Act.

E. A description of the means by which theparent council has had an opportunity toinspect and to present its views with respect

34/INEQUALITY IN EDUCATION

to the application prior to its submission.The local educational agency must state howcomplaints of parent councils concerning theprojects or programs described in the appli-cation have been handled.

F. Such other pertinent information as theState educational agency may require.

The provisions of this advisory statement will beimplemented by a forthcoming amendment of theTitle I Regulations.

T. H. BellActing U. S. Commissioner of Education

FloridaTITLE I CENTER MUST INTEGRATE ALONGWITH OTHER SCHOOLS IN SYSTEM

Wright et al v. Board of Public Instruction ofAlachua County, Fla., No. 29999 summarycalendar (5th Cir.) August 4,1970.

The Fifth Circuit Court of Appeals has ruledagainst a voluntary Title I program in Gainesville,Fla., because the plan resulted in segregation. Thesystem, desegregated under court order last year,had set up voluntary development centers in aformerly all-black elementary school and highschool using funds from Title I and other federalprograms. Appelants objected because theenrollment under the voluntary plan was 249Negroes and 34 whites in the elementary school.Expected enrollment by race in the high schoolprogram followed the same pattern.

The court directed the District court "torequire that all assignments to these schools in theremedial sectors thereof be on objective andnon-racial standards. Such a program is to beencouraged, but the white children in need of suchtraining must be assigned along with the Negrochildren in need of such training." The courtpermitted the school board to continue operationof a vocational education program at the highschool on a voluntary basis, but asked that abi-racial committee be established to oversee thisoperation and the rest of the system, to assure thatno racial classification persisted.

PUEBLO TITLE I SUIT DISMISSED

Cochiti Pueblo v. Bernalillo School District, CivilAction No. 1813 (D.C.N.M.) Dismissed, August20, 1970. Appealed to 9th Circuit.

The federal District court in Albuquerquedismissed this action brought by five IndianPueblos in Sandoval County, New Mexico. Thesuit charged discrimination against Indians,including lack of representation on the localschool board, and also sought to correct allegedmisuse of federal school funds under Title I,the National School Lunch Act, and the Johnson-O'Malley Act. Counts alleging discrimination andimproper representation were dismissed withoutprejudice, but the counts dealing with misuse offunds were dismissed with prejudice.

There was no written opinion in the case,but in an oral statement, Judge Bear le Paynestated that the plaintiffs did not constitute a classand also stated that private citizens had no right tochallenge the administration of federal funds.

Attorneys in the case include David H.Getches of the Native American Rights Fund,Daniel Rosenfelt of the Indian Legal DefenseFund, Sylvia Drew of the NAACP Legal DefenseFund, Inc. [See Inequality in Education, NumbersThree and Four, page 36.]

RIGHT TO TITLE I PROGRAMS ASSERTED BYBLACK PLAINTIFFS IN GEORGIA APPEAL

George et al v. H.B. O'Kelly et al, Civil Action No.

*

13714, (D.C.N.D. Ga.) June 26, 1970, appealed to5th Circuit.

Plaintiffs in this action, all poor blackchildren, sought to compel the Candler County(Georgia) Board of Education to accept Title Ifunds. The district refused to apply for the fundsfollowing a desegregation order in United States v.Georgia [ F.Supp. (1970)] which madethe district eligible for federal funds.

The District court dismissed the case June26, 1970, on the grounds that plaintiffs had shownno racial discrimination was involved in thedecision, and also because there was no showing ofillegality in the administration of the schools.Plaintiffs had contended that the school systemhad authority to apply for up to $120,000 in TitleI funds, based on the number of eligible children,and that failure to apply for these funds was adenial of equal educational opportunity. Plaintiffsargued that the injury was particularly great forblack children who had in the past been assignedto segregated schools and were thereforeparticularly in need of compensatory education.Failure to apply for the funds when no localspending was required to obtain them was anabuse of discretionary authority, the suit stated,and constituted a continuation of segregated andinferior education for black children.

An appeal has been taken to the 5th Circuitasserting an absolute right to such programs,particularly where schools have been previouslysegregated. Attorneys in the case are HowardMoore Jr. and Peter E. Rindskopf of Atlanta andElizabeth Rindskopf of the American FriendsService Committee.

SUPPLEMENTARY TITLE I LITIGATION MATERIALSThis supplement to the Center's Title I packet

of last spring includes: the U.S. Office of Educa-tion's new clothing guidelines; proposed USOEparental participation guidelines with a critiqueprepared by a national coalition of civic organiza-tions and poverty groups interested in Title I;recent USOE statements on comparability andpublic information; complaint from Title I actionfiled in Providence, R.I.; report of a decision onstanding and federal jurisdiction from Maine; textof a consent decree on parental involvement fromCalifornia; a "community" pamphlet on Title I

prepared by the National Welfare Rights Organiza-

tion; and the names, addresses, and telephonenumbers of USOE officials responsible forreceiving complaints on Title I by region.

One set of these new materials will be sent freeto all 0E0 legal services projects. Additionalcopies for non-profit organizations, $2.50. Othersare asked to pay $5.00. These fees go to defrayprinting costs. Write:

Center for Law and Education38 Kirkland Street

Cambridge, Massachusetts 02138

Attn: Title I Supplement

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