Buffalo schools fail kids when teaching that all White people play part in systemic racism: Rufo - Fox News

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Buffalo schools have adopted a curriculum that pushes the controversial idea that all White people perpetuate systemic racism, while 80% of its students fail to reach proficiency in reading and writing, an editor said Wednesday.  City Journal editor Chris Rufo, during an appearance on "The Ingraham Angle," said the "diversity czar" of Buffalo public schools was caught on tape saying she believes that America's sickness leads some White people to believe Black people are less than human.  One of the district's instructional materials also includes the assertion that "all White people play a part in perpetuating systemic racism." He said the narrative of system racism has also spread to schools across the country, which shifts attention away from "their own abysmal failure to educate kids." BUFFALO'S SCHOOL DISTRICT TELLS STUDENTS THAT 'ALL WHITE PEOPLE PLAY A PART IN PERPETUATING SYSTEMIC RACISM' "Woke academics and

'Commit to Making It Better': Forecasting the Future of Legal Education in a Twitter Chat - Law.com

'Commit to Making It Better': Forecasting the Future of Legal Education in a Twitter Chat - Law.com


'Commit to Making It Better': Forecasting the Future of Legal Education in a Twitter Chat - Law.com

Posted: 10 Dec 2020 07:53 AM PST

It's a question that has been percolating for some time and  made more urgent due to the challenges wrought by the COVID-19 pandemic: Is the bar exam even necessary anymore, or should it be scrapped entirely? That was the kickoff question for Law.com's Future of Legal Education Twitter chat, and the participants held nothing back.

Massachusetts' public schools are highly segregated. It's time we treated that like the crisis it is - The Boston Globe

Posted: 11 Dec 2020 12:07 AM PST

But was it happening here? Of that, they weren't so convinced.

Less than half said school segregation is a "big" or "somewhat big" problem in Massachusetts. And only 17 percent said the state's public schools have grown more segregated in the last 50 years.

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The survey respondents weren't entirely wrong; there has been progress in places. Some of the whitest school districts in the state have become more integrated — in part because of a growing migration of Asian-Americans to the suburbs.

But the state's highest-achieving school systems remain highly segregated, by any reasonable measure. The Wellesley schools are 84 percent white and Asian. And in Duxbury — where the main corridor in the $128 million middle-high school building has a terrazzo floor designed to mimic the town's distinctive coastline — the figure stands at 94 percent.

Black and Latino isolation, meanwhile, is surging. In the last decade alone, the number of "intensely segregated" nonwhite schools in Massachusetts — that is, schools with at least 90 percent students of color — has grown by more than a third, from 143 to 192, according to a recent report by researchers at the Beyond Test Scores Project and the Center for Education and Civil Rights. That's tens of thousands of children learning in racially isolated environments.

Occasionally this kind of school produces strong academic results; that's the case with some of Boston's charter schools. But the central finding of a half century of research is pretty unequivocal: Segregation is enormously destructive.

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It's strongly associated with poorer academic performance, lower college success rates, and smaller adult incomes for Black and Latino kids. And there's mounting evidence that white students preparing to enter an increasingly diverse workforce suffer, too, when they're isolated from children of color.

And yet here, in one of the most progressive states in the nation, we haven't demonstrated any real urgency around this problem in decades.

"There's been a real failure of vision, a failure of leadership," says Gary Orfield, who co-founded the Harvard Civil Rights Project before moving the program to UCLA. "A self-satisfaction that 'We tried it and it didn't work, there's nothing we can do — too bad, maybe it'll all go away.'"

The "We tried it" is a reference to the Boston busing experiment of the 1970s. A federal judge ordered Black students bused to white parts of town and white students to Black parts of town, and it all ended in catastrophe. Protesters threw rocks at children, and some families boycotted the schools altogether.

But the lessons of that era aren't all that useful anymore.

The courts abandoned "forced busing" long ago. And Boston isn't as central to the segregation saga as it once was. Yes, activists are pressing to diversify the city's elite exam schools. But districtwide, it's difficult for the Boston Public Schools to integrate when just 15 percent of their students are white, now.

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These days, the most important color line is not the one that separates Roxbury from South Boston. It's the one that separates city from suburb.

And while there's little hope of wiping that line away, there's every reason to believe we can make it more permeable. Indeed, we have poked plenty of holes in it already.

The Metropolitan Council for Educational Opportunity, or Metco program, has been sending students of color from Boston to suburban schools since the civil rights era — with remarkable results. A long-overdue expansion could change the trajectory of thousands of children's lives.

There are lessons to be learned from other parts of the country, too. School officials in Dallas and San Antonio have launched ambitious desegregation programs that aim to draw in students from outside their districts. And fully half of Hartford's students attend integrated schools — most of them in magnets that are built around themes like aerospace and the creative arts and pair Black and Latino kids from the city with white and Asian kids from the suburbs.

If we want integration — real, regional integration — we can have it.

First, though, we need to acknowledge the problem. So in the coming weeks, Policy for Progress, the group behind the August poll, is launching a campaign to focus public attention on it.

The organization, a spin-off of the Massachusetts chapter of the advocacy group Democrats for Education Reform, best known for its support of charter schools, is working with activists and elected officials to publish opinion pieces in their local newspapers. In January, it will convene an online summit with experts.

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"We need to start listing school segregation alongside affordable housing and terrible transportation as the big problems facing the state," says Liam Kerr, the state director of Democrats for Education Reform.

Making progress, though, will also require a full understanding of the problem's considerable reach. For as segregation has quietly deepened in recent years, it has also spread.

The new face of segregation

Lynn was once a mighty industrial city.

Dozens of tall brick factories turned out millions of pairs of shoes. During World War II, the city's General Electric plant built the first American jet engine.

But globalization hollowed out much of Lynn's industrial core, and a great fire in the fall of 1981 burned a good chunk of it to the ground.

These days, the North Shore city is one of the poorest in the state. And it's in the midst of dramatic demographic change.

The city's Latino population has nearly quintupled in the last 30 years, with thousands of immigrants from the Dominican Republic, Guatemala, and El Salvador flocking to the city in search of affordable housing. The Black population has edged up, too.

And as white families have pulled out of the Lynn Public Schools, a district that was once among the most integrated in the state has become one of the most racially isolated. Eighty-five percent of the student body is nonwhite. And in the last decade, the number of "intensely segregated" schools in the district has nearly quadrupled, from three to 11.

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Brockton and Springfield have seen similar jumps. And the schools in heavily Latino Chelsea and Lawrence, already highly segregated, have remained so. Together, Lynn and these other postindustrial cities form an archipelago of racial isolation in a sea of white suburbia.

It's the Massachusetts version of a national phenomenon — segregation spreading out of big metro regions like Greater Boston and taking root all over.

As segregation picks up speed, it is shedding its age-old Black-white cast. In some places, Latino students are becoming the new face of racial and economic isolation. In others, Black and Latino kids are bearing the brunt of the nation's savage inequality together.

In Lynn, the disparities are legible in the school buildings themselves.

Roughly 40 percent of them date back 100 years or more. And they show it. At Pickering Middle School, rat traps lean against the building's crumbling facade and blue tape stretches across the missing seats in the auditorium.

Some schools don't have enough electrical outlets to accommodate a 21st-century education. Overcrowding has forced specialists to meet with vulnerable children in the hallways. "They do magic in those buildings every day," says Lynn superintendent Patrick Tutwiler. "But our kids, our families, our teachers deserve better."

A lack of outlets in a basement classroom at the Pickering Middle School in Lynn in 2019. The cash-strapped city has struggled to update and replace its tumbledown schools.
A lack of outlets in a basement classroom at the Pickering Middle School in Lynn in 2019. The cash-strapped city has struggled to update and replace its tumbledown schools.Lane Turner/Globe Staff/The Boston Globe

In a cash-strapped city, though, building something better is a challenge. Three years ago, voters rejected a bid to construct two new schools.

Staffing is a problem, too. National guidelines call for one social worker for every 250 students, Tutwiler says, but the ratio in the Lynn schools is 1 to 622. Kids are getting inadequate instruction in English as a second language. And last spring, when the pandemic forced a move to remote schooling, students got paper packets rather than computers.

A sweeping school-funding reform package approved by the state legislature last year should blunt some of the disparities between Lynn and its wealthy neighbors over time. But the economic downturn brought on by the pandemic will likely delay the funding boost for Lynn and other poor districts.

There are limits to what money for schools can do, anyway. One study found that children in public housing in Montgomery County, Md., performed better when they were assigned to low-poverty neighborhoods and schools than when they attended high-poverty neighborhoods and schools, even when those schools were better funded.

It's just harder to thrive when you're sitting in class with students who have to worry as much about getting by as getting ahead.

And there are plenty of students in Lynn who struggle to get by.

Sheila O'Neil, a veteran teacher who is now president of the local teachers union, remembers assigning students a food journal in her second year on the job. "When I got them back, it just hurt my heart," she says. "They were eating rice."

Research also points to the critical role of expectations in shaping student outcomes. In better-off, whiter districts, students — even those facing hardship — are expected to go to college. And most do. But in Lynn, just half of high school graduates enroll in postsecondary education. It's a toss-up.

Some, like Raisa Ferreras, find a way.

She immigrated from the Dominican Republic at age 14 and had long been interested in attending college. But she didn't get much help at home. Her dad was a dishwasher who didn't know anything about American higher education. And their relationship was strained anyway.

Raisa Ferreras stands outside her old high school, Lynn English. About half of Lynn's high school graduates go on to college. Half do not.
Raisa Ferreras stands outside her old high school, Lynn English. About half of Lynn's high school graduates go on to college. Half do not.Pat Greenhouse/Globe Staff

Her high school, Lynn English, offered a bit more. She remembers an assembly on college admissions. And her guidance counselor provided the requisite recommendations. But mostly, she felt she was on her own. "The concept of financial aid — I did it because I knew I had to do it, but I didn't know what that was," she says. "Nobody checked in on me to find out, 'Raisa, how are you doing, can you show me your progress?'"

Ferreras persevered. She managed to get into North Shore Community College and transfer to Salem State University. Now, at age 25, she's working as a paraprofessional in the Salem schools and studying to become an English as a second language teacher.

Her friend Nelson Macario, though, took a different path.

A Guatemalan immigrant, he says his first days at Lynn English were terrifying. He didn't know the language and didn't know a soul.

But a couple of weeks in, he met Raisa at lunch and she helped him along. Over time, he started doing better in school — and he took a special shine to algebra. "I was really good at it," he says, with a grin. "Good with numbers."

He played with the idea of college. But it didn't seem urgent. If half of his classmates seemed interested in post-secondary education, half did not. And Macario had other things to worry about, anyway — like stocking produce at night to pay the rent. "You know, life," he says. "Life doesn't take you where you want it."

These days, Macario works in a warehouse for a small pasta sauce company and lives in a two-bedroom apartment with his sister.

He has no plans, he says, to leave Lynn.

With integration comes greater opportunity

It's not hard to tell when you've crossed from Lynn into neighboring Swampscott.

The lawns get bigger. The streets get quieter. And the schools are better appointed.

Step inside Swampscott High and you'll find a breezy atrium with a curving "princess staircase" suitable for royal entrances.

There is an arts wing and a language wing, a television studio and a sports marketing program. Last year the school's robotics team, sponsored by General Electric, qualified for the national championships in Detroit.

Swampscott, like most of the state's well-off districts, isn't especially diverse. Eighty percent of its students are white.

But it's one of 33 suburban school systems that accept a certain number of Black and Latino students from Boston through the Metco program.

Metco dates to 1966, when the first group of Black children — 220 in all — crossed the city line to attend mostly white schools in towns like Arlington, Lexington, and Newton.

The founders didn't expect the program to last long — residential segregation, they figured, would soon ease and neighborhood schools would grow more integrated on their own.

But discrimination and the high cost of suburban housing conspired to keep the suburbs mostly white. And the Metco program steadily grew to roughly 3,000 Boston students — a size it's held for decades even as the population of Greater Boston has boomed.

Zoë Petty is a recent alumna.

The Roxbury native started attending the Swampscott schools in the third grade, gawking at the big homes as she rolled into town on her morning bus ride.

It was a little overwhelming at first, she says, sitting in class with kids she didn't know. But it didn't take her long to acclimate. She joined a baking club run after school on Wednesdays by one of the moms from the parent-teacher association. Sleepovers soon followed. In fifth grade, her class took an overnight trip to Ferry Beach State Park in Maine. A couple of years later, they visited Ellis Island and the Statue of Liberty in New York.

Petty had moments when she felt like an outsider.

She was in high school when the Black Lives Matter movement took flight, and some of the comments her white classmates made on Twitter raised her eyebrows. "Huh, is that how you feel?" she recalls thinking. "Because we're in class together every day, and you laugh at our jokes, and you rap."

Even when things were going well, she was always aware of her difference. And that could get exhausting. Sometimes, she would retreat to the high school's Metco office just to be around other kids of color.

But she wouldn't trade her experience. She developed real friendships. Served as class president, even. And in her constant chatter with Swampscott parents — in the car on the way to track practice or at school, planning events — she was learning a valuable lesson: how to navigate the white spaces she'd need to navigate for the rest of her life.

"If you're always in a space with people that look like you," she says, "you just don't know what to say — you don't know how to interact."

Petty went on to Temple University and graduated last spring. And in many ways, her success is typical for Metco students.

Last year, Harvard researcher Ann Mantil found that Metco students dramatically outperform students in the Boston Public Schools with similar demographic profiles — with four-year graduation rates and college enrollment rates that are about 30 percentage points higher.

To confirm the reliability of the findings, Mantil compared Metco applicants who got a coveted referral to a suburban school — most of them ultimately enrolled in the program — with those who did not. Again, she found substantial gaps — of 18 percentage points — in both high school graduation and college enrollment rates.

The study, Metco chief executive Milly Arbaje-Thomas says, makes a powerful case for the program. But it only tells half the story.

"This is not a one-way program," she tells white suburban educators, in her blunt and disarming way. "Don't think you're doing us a favor. If anything, we are exposing you to something that you should have been exposed to all along."

The research is on her side.

Studies show integrated classrooms promote creativity and critical thinking. They also reduce racial bias and foster the sort of cross-cultural competence employers increasingly value. And white student performance doesn't suffer.

Doubling or even tripling the size of Metco could do enormous good, then. But it's possible to go even bigger than that — to go bigger than anything we've contemplated here in Massachusetts.

It's not hard to see what that would look like. All you have to do is pay a visit to neighboring Connecticut.

Where suburban white kids go to city schools

John Brittain had already worked on school desegregation cases in Mississippi.

And when he took a job teaching at the University of Connecticut Law School in 1977 — a few years later, he'd be named the institution's first Black tenured professor — he quickly set about looking for patterns of segregation in Hartford using a method he'd honed down south.

He'd arrive at a school at 7:30 a.m. and drive around the building in concentric circles, observing the students who were making their way to morning classes. Then, after school, the bow-tied professor would follow some of them home to get a read on the socio-economic standing of their neighborhoods.

"I did it for the whole city," he says.

Teaming up with lawyers from the NAACP and the ACLU, he documented a pattern of deep and enduring segregation; at the time, the Hartford public schools were more than 92 percent non-white.

And in 1996, in the case of Sheff v. O'Neill — named for Hartford fourth-grader Milo Sheff and his mother Elizabeth — they won a landmark case in the Connecticut Supreme Court.

The "extreme racial and ethnic isolation" of the Hartford schools, the court found, deprived children of the "substantially equal educational opportunity" guaranteed by the state constitution.

The justices left it to Governor William O'Neill and the state legislature to craft a solution. And at the start, their response was weak. The plaintiffs had to return to court to ensure compliance, and they've gone back many times since. But what's emerged over time is nothing short of remarkable: one of the largest desegregation programs in the nation.

The Sheff settlement includes a Metco-style interdistrict choice program, serving about 2,300 students. But at its heart is a system of 40 themed magnet schools that draw over 18,500 students from across the region — putting Hartford kids and suburban kids in the same classrooms.

Among them is the Breakthrough Magnet School South, tucked into a residential neighborhood on the western edge of Hartford.

The school runs from pre-kindergarten to eighth grade, and the students do plenty of math and reading. But Breakthrough is known for its emphasis on character education.

Children are taught to make eye contact and, when there's no pandemic to contend with, shake hands. Responsibility and integrity are watchwords. Every grade is involved in a community service project — collecting books for the local children's hospital or selling flowers to benefit a women's shelter.

If anything goes wrong, it's off to the mindfulness area, where students can crack open a coloring book or count down from 10 to 1 to center themselves.

Meredith Dresko, an administrative assistant from suburban Newington who sends her son Gabriel, 7, and daughter Kiara, 5, to Breakthrough, says she was first drawn to the school by the prospect of free pre-kindergarten. But she was won over by the "whole child" approach.

Meredith (center right) and Chris (right) Dresko and their two children Gabriel, 7, (center left) and Kiara, 5, (left) at the Breakthrough Magnet School in Hartford.
Meredith (center right) and Chris (right) Dresko and their two children Gabriel, 7, (center left) and Kiara, 5, (left) at the Breakthrough Magnet School in Hartford.Steven G. Smith

She recalls a hectic school morning about a year ago when she was yelling at her son and daughter to get out the door and hop in the car. "We sit down and I turn to the kids and I'm like, 'I'm sorry I'm grumpy this morning, I'm just stressed because we're running late and I'm trying to do too much in too short a period of time,'" she says. "And Gabe turns to me and he's like, 'Mom, you should do some mindful breathing' and literally starts walking me through it: breathe in, breathe out."

Until recently, the Sheff settlement called for the magnet schools to maintain a balance of at least 25 percent white and Asian students and no more than 75 percent Black and Latino students. The current agreement defines the schools' diversity on a socio-economic basis, and there is some concern about backsliding on racial integration.

But Breakthrough's demographic profile is still pretty close to the original parameters — last year, 75 percent of students were Black and Latino and 21 percent were white and Asian.

That's very different from the wealthy white suburb of Glastonbury, Conn., where Dresko grew up. And she acknowledges having some hesitation, early on, about sending her kids to a city school. She wondered if they might come home swearing in kindergarten instead of fourth grade.

But she says being part of a school community where she and her children are in the minority has been a rewarding experience. "Even among the parents, it's pretty awesome — the diversity and the relationships that build," Dresko says. "You know, it's not people sticking to their own social circles and socio-economic backgrounds. It's really mixed."

Maintaining that kind of integration is no small task.

The suburban families recruited by the Breakthrough school have options. And Principal Holly Gustafson has to hustle — distributing full-color brochures at suburban libraries, churches, and pediatricians' offices and advertising in Connecticut Parent Magazine and on the radio.

Black and Latino parents from Hartford, though, are beating down the doors to get in. Gustafson says she's fielded too many calls from teary parents who have been trying to get their kids into Breakthrough for years.

Martha Stone, a lawyer who has been working on the Sheff litigation from the start, says there is a glass-half-full, glass-half-empty element to the situation. "The good news is, we've had thousands of kids go through these magnets over the years . . . and you know, there has been quality — the kids have gotten quality integrated education," she says. "The glass is half empty because there's still a huge proportion of Hartford kids that are in poorly performing neighborhood schools."

But while there remains work to be done, the sheer size of the remedy to date — with fully half of Hartford's students in integrated schools — is enough to put Massachusetts to shame.

The question is: How does the Bay State get closer to where it needs to be?

The courts — or the court of public opinion?

One answer, of course, is for someone to sue the state.

The Sheff lawyers say a lawsuit like theirs could prevail in Massachusetts — in any state, really, where the constitution guarantees the right to an equal education.

Sweeping desegregation cases are making their way through the New Jersey and Minnesota courts right now.

But Phil Tegeler, who worked as a lawyer on the Sheff case for 17 years and is now executive director of the Poverty & Race Research Action Council, says the future of integration may lie not in the courtroom but in progressive state legislatures and the halls of power in Washington.

At the tail end of the Obama administration, Education Secretary John King Jr. oversaw a $12 million grant program to help districts plan for greater diversity in their schools — a modest but symbolically important effort that signaled the comeback of a strategy long out of favor.

And although the Trump administration discontinued the effort, advocates are hopeful that President-elect Joe Biden will revive it — and even win more funding from Congress.

Just this fall, the House of Representatives approved a measure authorizing grants that districts could use to revise attendance boundaries, develop new school choice zones, and create magnet schools. It was the first time the chamber had voted to fund integration in more than 30 years. And 21 Republicans joined Democrats to back the bill.

Tegeler called the bipartisan support "extraordinary" and said, "We're hopeful that next year, we could see some of those types of competitive grants find their way into the federal budget."

Massachusetts school districts should be preparing to apply for those grants now. Boston and other cities might have better luck retaining white, middle-class families who now head to the suburbs when their kids reach school age if the districts built high-quality magnet schools.

But more robust integration in the region will almost certainly require an expansion of Metco, too.

And for that to happen, suburban districts will need to work through some local impediments to the growth.

Amy OConnor, the Swampscott school committee chair, says one reason the district's Metco program is relatively small — with just 51 participants, representing about 2 percent of the student body — is that there's simply not enough room at the town's three bulging elementary schools.

Space is a problem in a lot of growing suburban districts. But a community that's committed to integration can address it by building Metco into its expansion plans.

Swampscott officials are planning to replace the district's three elementaries with a single, sprawling, roughly $100 million school, and OConnor says she's hopeful it will mean more seats for Metco kids. "This is a town that needs diversity," she says. "We need kids with different experiences."

At the local level, money isn't the object you might expect.

The state pays suburban districts about $6,700 per Metco student each year, plus the standard "Chapter 70″ state aid that's meted out to school systems for each of their kids — a figure that varies depending on the relative wealth of the district.

The total amount may add up to less than half of a district's per-pupil cost. But since suburban districts typically offer empty seats to Metco students, they're not required to hire extra teachers or heat additional classrooms.

Some Metco districts report breaking even on the program. Others may even come out ahead.

It's the state that would bear the brunt of the costs of an expansion — whether that's adding thousands more students from Boston, growing the modest Springfield Metco program, or building new programs in cities like Lynn and Lawrence that are on the leading edge of the new segregation.

Beacon Hill would have to put up the $6,700 for each of the new students.

Joan McLarin (left) said a last minute goodbye to her eighth grade son, Milton, as his bus left for Braintree Junior High School on the first day of the voluntary busing program sponsored by Metco on Sept. 7, 1966.
Joan McLarin (left) said a last minute goodbye to her eighth grade son, Milton, as his bus left for Braintree Junior High School on the first day of the voluntary busing program sponsored by Metco on Sept. 7, 1966.Dan Sheehan/Globe Staff/The Boston Globe

To date, lawmakers have shown little appetite for expansion. Indeed, it's been a struggle just to maintain the program. Even with modest budget increases the last couple of years, the state is spending less on Metco now than it did in 2007, adjusted for inflation.

Part of the problem is the lens we have on education reform in this state.

Twenty-seven years ago, amid mounting concern over what one influential report called the "rising tide of mediocrity" in American schools, Massachusetts lawmakers approved landmark legislation that paired a big infusion of state dollars with a demand for higher standards.

This "grand bargain" is widely credited with making the state's public schools some of the best in the nation. But the Massachusetts Education Reform Act of 1993 had a downside: It narrowed the conversation around how to lift up the Black and Latino students our schools have left behind.

Time and time again, the debate has returned to touchstone questions of standards and money. Do we ease up on testing or double down? Are we providing enough money to high-poverty school districts? Occasionally, the state detours into a pitched debate over charter schools, another creature of the 1993 law.

These are all critical pieces of the puzzle, no doubt.

But one of the most effective strategies for elevating Black and Latino student achievement — integration — has been largely ignored.

The governor could certainly give the idea a jolt with a high-profile proposal to expand Metco or build regional magnet schools. But State Representative David Linsky, a Natick Democrat who serves as House chair of the Metco caucus, says sustained grassroots advocacy will probably be required.

State lawmakers are highly attuned to the priorities of parents and school officials in their legislative districts. Until now, that's meant fighting like hell for every state dollar and keeping an eye on the benefits and burdens of state-sponsored standardized testing. Only local demand for integration, Linsky says, is going to change that calculus.

"I'd be in favor of [a Metco expansion] — I absolutely would," he says, "but I think the impetus for expanding it has to come from the school districts."

There has been some stirring at the local level since the racial justice protests of this summer.

Metco officials say a couple of districts with smaller programs have inquired about expansion. And 1,500 people have signed an online petition to bring Metco to Medfield, a well-off community south and west of Boston.

But progressive activists in many of the best-off suburbs in Greater Boston have been focusing their energies elsewhere — reviewing local police departments' use-of-force policies or pressing schools to introduce more authors of color to their curricula.

That's all vital work. If they want to make a truly sizable impact, though, they're going to have to press for expanded access to one of their most powerful tools for equity — their schools.


David Scharfenberg can be reached at david.scharfenberg@globe.com. Follow him on Twitter @dscharfGlobe.

Higher Education Institutions and Reckoning with Racist Legacies - JD Supra

Posted: 10 Dec 2020 07:44 PM PST

In the wake of George Floyd's murder six months ago, Americans flocked to the streets to voice their anger against institutions that perpetuate racial oppression.  Protestors experienced the murder of Floyd as the latest in a long history of acts of racist violence against Black people and other people of color, a history that in recent years included the murders of Eric Garner, Michael Brown, and others; a white supremacist rally in Charlottesville; and a massacre at a Charleston church.  They demanded that American society at long last reckon with its racist past.  These demands gave fresh fuel to the movement to examine who we as a society choose to honor in public places with statutory and other forms of recognition.

Prominent among the institutions called to account, in the past and with added fervor now, are the nation's colleges and universities whose buildings, schools, and programs often bear names that honor racist alumni, donors, and historical figures.  In fact, as recently as this week, the Virginia Military Institute removed a campus statue honoring the Confederate General, Thomas Stonewall Jackson.

In this alert, we address on-campus naming issues, including the un-naming or renaming process.  We describe universities' obligations under gift agreements, a common source of naming rights, and the avenues available to a university seeking to modify controlling terms.  We then propose some best practices for addressing campus naming issues.

Naming Issues in Recent Campus Activism

Names have been a focus of recent on-campus civil rights efforts, particularly where the name of a building, an academic program, or the institution itself honors slavery, white supremacy, or their proponents. 

Although activists often demand immediate change, the decision to examine, modify, or remove campus names is not one that institutions typically reach quickly.  Universities may face legal restrictions (discussed in more detail below), as well as the interests of various university constituencies.  Universities have taken a longer, more deliberative approach when faced with such demands than those demanding change would like.  For example, in 2017, efforts by student leaders initiated changes such as Harvard Law School revoking its school seal and Yale renaming one of its residential colleges, both the result of extensive review processes.

 With Yale, the university began reexamining the name of one of its residential colleges, named after U.S. Vice President John C. Calhoun, an infamous white supremacist and ardent supporter of slavery, in 2015, in response to an online petition that summer followed by protests in the fall.  After months of university-hosted "conversations" and "listening sessions" with students, Yale announced in April 2016 that it would not change the name of the college.  This led to further student protests, and by August, the university convened a Committee to Establish Principles on Renaming, comprising Yale faculty, students, staff, and alumni.  That fall, the committee produced a report identifying a set of principles to guide renaming efforts at the university.  Applying these principles, the university president set up an ad-hoc group of three advisors, which in 2017 unanimously recommended to rename the college.

Given this summer's widespread and persistent demands for racial justice, it was reasonable to expect protests at higher education institutions in the fall.  The COVID-19 pandemic, however, has largely prevented this from occurring; without all students on campus, and with strict rules in place limiting group gatherings for those on school grounds, university-based protest and community organizing are largely nonexistent.

Despite the impact of the pandemic, the topic of naming rights is unlikely to fade from focus on college and university campuses. Online activism has sparked continuing dialogue and action.  This year alone, many colleges and universities announced name changes to show solidarity with ongoing efforts to confront anti-Black racism.  The University of Virginia School of Law removed the name of a former Confederate soldier from a school building after review by an ad hoc committee of alumni, faculty, staff, and students and using the school's naming guidelines; and Princeton University removed President Woodrow Wilson's name from its schools in June, four years after it had previously declined to alter the name.

The relative and likely temporary absence of on-campus activism presents an opportunity for colleges and universities to address naming issues thoughtfully and methodically, without the pressure to act too quickly and the animosity and division that often accompany demands for urgent action.  In that vein, below are key considerations—legal and otherwise—that institutions should keep in mind as they embark on this process.

Review Gift Agreements

Any institution considering a name change must first identify the original source of the naming rights.  Naming rights can arise from a number of sources, including internal administrative decrees, government-controlled designations, and, more commonly, contractual agreements between the university and a donor.  The source of naming rights will determine how, when, or under what circumstances un-naming or renaming may be possible.  The guide below summarizes how a university may modify or terminate naming rights, including overcoming common issues faced by institutions with decades- or centuries-old naming obligations tied to deceased or unidentified donors.

In the case of a name bestowed by university decree or other honorific, universities will generally look to internal policies and procedures and work with current administrators, board members, and overseers. 

Universities reviewing names rooted in historic preservation laws will need to petition state or federal legislatures or seek court intervention.    

Most often, naming rights and other obligations to place inscriptions on university property are contained in private gift agreements voluntarily entered into between the institution and donors.  Donors often include conditions on charitable gifts, embodied in the final written gift agreement between the parties.  Conditional gift agreements are enforceable contracts and governed according to the agreement's terms.  In such cases, a university's legal obligations will require careful review of the agreement's terms and applicable laws.  Key provisions will include:

  • Identity: Who owns the naming rights, including whether such rights terminate upon an individual's death or pass to an estate or heir.Similarly, whether rights may be transferred or assigned and under what circumstances.
  • Duration: Whether the naming rights are indefinite, limited in time, or allow for university review or reconfirmation after a specified period. If an agreement is set to expire or go through review in the near term, the university may opt to plan for an un-naming process to coincide with that timing.
  • Consideration: The specific gift promised by the donor in exchange for the naming rights, and confirmation that the donor has fulfilled or is in the process of fulfilling the pledged gift.If the donor never completed their promises to the university, the agreement may be subject to cancellation.Where the gift is non-monetary, and includes items or property that the institution no longer needs or values, returning the gift may likewise terminate the agreement.
  • Retention of Rights: Whether the university reserved the right to revoke or change the name and any criteria triggering that right, including the discovery of illicit sources of funds or conduct that would be detrimental to the university's reputation.The institution may be able to cite such provisions as the basis for revoking naming rights, including cases where the university seeks to cut ties with persons connected to racial injustice.

Absent any clear provisions permitting the termination of a donor's naming rights, the university can still work with the living donor or their designee directly to amend the agreement.  A donor may no longer desire the notoriety associated with naming rights, determine that the purpose of the original gift is no longer served by the university, or simply agree to a name change or relinquishment of naming rights altogether.

If a donor is unwilling to relinquish naming rights voluntarily, change remains possible.  Institutions can negotiate a buyback price with the donor or return the full original gift in exchange for un-naming rights.  (In such cases, at least some jurisdictions have held that the original gift amount must be adjusted by the consumer price index to reflect present-day value.)  While it may require large sums to terminate naming rights successfully, universities may conclude that any long-term reputational harm, donor relations, or impact on the student body outweigh the cost of the negotiated payment.  Institutions like Vanderbilt University have even launched successful charitable campaigns to raise the funds necessary to return gifts tied to naming rights.  

If the donor is deceased and has not transferred or assigned naming rights to an heir or third-party, or if the donor cannot be identified, a university should work with legal counsel to contact the office of the relevant State Attorney General and discuss modification of the gift agreement.  State attorneys general maintain both common law and statutory authority to oversee the activities and governance of nonprofit organizations and charitable trusts.  Courts reviewing petitions for relief contrary to a donor's intent will undoubtedly inquire whether the attorney general's office assents to the request.

Recommendations and Best Practices

Even where the path to revoking naming rights is clear, universities must consider how to ensure that the decision-making process is thoughtful and deliberative.  Institutions can best position themselves to consider un-naming demands by establishing written policies and procedures now.  These policies can also help prevent future issues as new naming opportunities arise.  A university naming policy should: (1) aim for transparency; (2) structure a fact-based inquiry; (3) manage expectations; (4) engage relevant stakeholders; and (5) meet reputational challenges by invoking the university's core values.  Key criteria should include:

  • Any principles guiding the approval, change, or removal of names connected to the institution, including what aspects of the university's mission statement or values should be reflected when naming spaces, scholarships, programs, etc.
  • Rules or restrictions on names, including buildings or programs that must remain unnamed or regulations concerning how or where a name may appear on a physical structure.
  • Minimum philanthropic requirements for obtaining consideration for naming rights, including approved sources and forms of support.
  • The process that must be followed to approve, revoke, or alter name use, including the form of any such request, notice requirements, and timeline.
  • The duration of naming rights, including policies setting term limits or periodic reviews.
  • Any reservation of rights to un-name or rename, including the circumstances that would warrant or qualify for such action.
  • Persons responsible for administering the policy, including whether those individuals retain the authority to appoint standing or ad hoc committees to review naming rights, launch credible studies to investigate whether name changes are warranted, seek input from relevant constituencies, or release statements on the institution's behalf concerning naming rights.
  • Persons or bodies with the ultimate power to approve, revoke, or alter any naming rights, including university presidents and other administrators, boards, or overseers.
  • Discussion of the role students, alumni, donors, and local residents should play in the name review process, including membership in any standing or ad hoc committees to ensure a wide array of community interests are represented in the process.
  • Relevant timetables for delivering interim and final reports related to name changes or un-naming to ensure accountability.

Establishing these policies now—or reevaluating and tightening existing policies—will provide a solid foundation for a college or university when it confronts its first (or next) un-naming demand from members of the community.  Having a clear, written policy will also provide reputational support to the institution both as applied to: (1) students, showing that the university understands the legitimacy of concerns relating to naming, is not defensive, and has processes in place to address requests; and (2) current, past, and future donors, demonstrating that the university is not purely reactionary, but is being deliberative and thoughtful about any un-naming suggestion.  Universities may also consider going a step further and begin proactively reexamining the names on their walls, programs, and schools.  Being on the forefront of the issue will demonstrate an affirmative commitment to anti-racism and make clear that when the university is able to fully reopen, it intends to be welcoming for all who walk the campus.

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