At its March 2 meeting, the District 65 School Board authorized the administration, by a 5-2 vote, to use a cap and transfer strategy to manage overcrowding in the schools for the 2010-11 school year. Under the policy, kindergarten classes will be capped at 23 students, and students in excess of the cap will be transferred to another school. With one proviso for sibling preference, the students transferred will be those who registered for school last.

One School Board member raised a concern that low-income and minority students have historically registered late, and they would be disproportionately impacted by the cap and transfer policy which requires those who register last to transfer first. She also expressed concern that if a disproportionate number of low-income and minority students were required to transfer out of Dewey School, it would impact the demographics of that school.

At the March 2 meeting, Superintendent Hardy Murphy said he thought this was a “legitimate” concern. He explored ways in which a disparate impact on minority students might be eliminated and diversity ensured at Dewey School. One way he proposed was to set aside a proportionate number of kindergarten slots at Dewey for students who live in the Fifth Ward. After the March 2 meeting, the District’s attorneys advised against this, on the basis it could be viewed as a set-aside based on race.

After the March 2 meeting, Dr. Murphy also explored setting aside slots for students from low-income families. He told us the District’s attorney advised that this approach would pass muster, but that administrators concluded it would not be workable from a practical standpoint because the District would not be able to verify low-income status and make class assignments until August.

While apparently reaching a dead-end on structuring a set-aside for minority or low-income students, the administration at this time does not believe the cap and transfer strategy will have a disparate impact on minority students in the 2010-11 school year for two distinct reasons. First, administrators are hopeful that they will not have to resort to the cap and transfer policy because of a relatively high number of applications made for admission to magnet schools, to the Two-Way Immersion Program, and for permissive transfers.

Second, last week District staff made a demographic analysis of kindergarten registrations at the three schools where the cap and transfer strategy would most likely be applied. Based on that analysis they say they believe a disparate impact will not emerge.

Time will tell.

We appreciate that the administration is taking this issue seriously, that it has explored ways to reduce or eliminate a potential disparate impact on minority students and low-income students, and that it is monitoring kindergarten registrations for a potential disparate impact. We think this is important for several reasons.

First, if the cap and transfer strategy has a disparate impact on minority and low-income students, it would raise a question about the fairness of the registration procedures and/or the criteria used in implementing the strategy. In that event, the registration procedures and/or the criteria should be examined and modified to eliminate the disparate impact.

Second, if the policy has a disparate impact, it would raise a legal concern. Regulations adopted by the U.S. Department of Education (DOE) to implement Title VI of the 1964 Civil Rights Act provide in part that a school district that receives federal aid or benefits may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.”

On March 8, Arne Duncan, the Secretary of DOE, announced that DOE will be stepping up enforcement of Title VI of the Civil Rights Act. During a press conference on March 8, Russlylnn Ali, the assistant secretary of education for civil rights, said DOE would be looking at “seemingly neutral activities that have a disparate impact” on a racial or gender group.

If a disparate impact exists, there are defenses. But, in essence, the issue would be whether the District could have achieved a comparable result in managing overcrowding with less of a disparate impact.

Third, if there is a disparate impact on minority and low-income students – if a disproportionate number of minority and low-income students were required to transfer out of a school – it would impact the racial mix and diversity of that school. And this would occur not through general housing patterns or parental choice, but through a strategy authorized by the Board.

These are not easy issues, but they are important ones. We think they are of such import that they should be carefully evaluated upfront before a strategy to manage overcrowding is approved, and this goes for a one-year strategy and a long-term strategy as well.

We support a continued monitoring of this year’s kindergarten registration process and, if the cap and transfer policy is used to manage overcrowding, then an analysis should be made of its impact.