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Ballot measure could increase OUSD teacher diversity, draw legal challenges

November 3, 2020

There is perhaps no more commonly spoken word in Oakland Unified School Board meetings than “equity.” The nebulous term discussed frequently on agenda items ranging from charter school access to climate change. There is an entire office devoted to the subject, with a specified board agenda.

A new proposition on the ballot could help OUSD advance their equity mission by increasing diversity in hiring and contracting. The only problem—critics say these measures may violate federal civil rights laws.

Voters will decide on Tuesday whether to adopt California Proposition 16, which would repeal the state’s existing law and allow for preference to be given to members of a certain sex or racial group in public employment, contracting and both K12 and higher education.

Although the measure enjoys widespread support among policymakers at the local, state and federal level, it seems unlikely to pass. A poll conducted last month by the Public Policy Institute of California found that only 31%of those surveyed supported Prop 16, though 22% said they “don’t know” how they would vote. A poll from the UC Berkeley Institute of Governmental Studies, also conducted last month, showed similar numbers— 33% said they would vote yes, with 26% undecided.

But if it does succeed, directors from the Oakland Unified School District School Board have already begun to discuss how they would take advantage of the measure. Last week, the Board passed a resolution in support of the motion named in honor of the Civil Rights-Era activist Fannie Lou Hamer.

OUSD Director Jumoke Hinton Hodge told the board that she would like to use Prop 16 to hire more teachers of color, specifically citing the needs of Black and Pacific Islander students.

“I think to the superintendent and to the HR department and to the facilities department it is very specific that through Prop 16 we get to make some considerations about how we hire,” Hinton-Hodge said in the meeting. “So when we talk about hiring more teachers of color, there is an opportunity with this particular proposition to make that happen for us.”

Several academic studies have touted the importance of having teachers of the same race and gender as students. A 2017 study of more than 100,000 North Carolina children from the Institute of Labor Economics found that Black boys who had a Black teacher between third and fifth grades were significantly less likely to later drop out of high school and more likely to attend college.

But Tom Campbell, a professor of law at Chapman University and former dean of UC Berkeley’s Haas School of Business, said that measures like the one Hinton Hodge proposes may violate Title VII.

“Because of the federal law, I don’t see how Prop. 16 could allow racial hiring for teachers in K-12 even if the state law changes,” Campbell said.

Title VII of the Civil Rights Act of 1964 prohibits discrimination by public-sector employers on the basis of race, color, religion, sex or national origin. Courts have upheld that some forms of affirmative action are permitted under Title VII though—in the case of Johnson v. Transportation Agency, Santa Clara County the court said it was legal to promote a less-qualified woman, so long as her sex was only one factor that was considered. In Local 28, Sheetmetal Workers v. EEOC, the Supreme Court also said race-based affirmative action could be used as a “last resort” for cases of “persistent or egregious” discrimination, or in cases of “lingering effects of pervasive discrimination.”

According to the District’s website, 42.3% of OUSD’s student body is Latino and 11.6% is white. But for teachers, these numbers are nearly flipped— 46.8% of the district’s teachers are white and only about 14.7% are Latino.

OUSD spokesman John Sasaki said the district is currently on other ways of improving teacher diversity, adding that they had reached out to people as far away as South America for hiring. But he did not respond to specific questions about how Prop 16 would affect these efforts.

“Our Talent division has for years been working to onboard more Latino, African American and Asian American teachers in OUSD,” he said. “Our goal is to have a teacher pool that fully reflects the ethnic makeup of our student body.”

“We know that if we have teachers of color that every student (including) white students are going to benefit,” Hinton Hodge said in the meeting.

But critics like UCLA Economist and Law Professor Richard Sander, says that a greater problem may be the lack of people of color in the teaching “pipeline”—that is those who graduate with a degree in education or a related field.

“Most school districts that want more diversity have been able to achieve it,” Sander said, pointing to statistics showing an increase in the number of teachers of color. “A much greater problem in reaching diversity goals than Prop 209 is the “pipeline” – the small supply of qualified Ph.D.s for university hiring faculty and teacher candidates for K-12 to hire.”

A 2016 study conducted by the Department of Education seems to confirm Sander’s statement, finding that racial diversity decreased at every point in the pipeline from high school to postsecondary graduation.

In addition to hiring more diverse teachers, Hinton Hodge also referenced the Board’s policy, which states that at least 20%of contractors generally, and 50%of large construction contractors, are required to be local, saying that the passage of Prop 16 could allow them to be “far more targeted to make sure that women and folks of color are actually getting those contracts.”

Also on the table if the proposition passes may be a change to California’s equalization formula, which determines how much each district receives in state funding. Currently, the state allocates money based on attendance, with additional funds given for districts with high proportions of foster youth, English language learners and low-income students. If Prop 16 passes the state could also add race to this category.

“The very valid concern opponents of Prop 16 have is that officials won’t do the hard work of actually determining district needs, but will use a racial spoils system that reflects interest-group politics rather than demonstrated need,” Sander said.

“Since funding equalization based on income is already the law, I must wonder why they would want to give more money to a school district just because of the race of students in that district.”

For many, feelings about Prop 16 come down to opinions of affirmative action policy generally.

“If you give a benefit to someone because of that person’s race, you are logically denying that benefit to someone else who is not of that race,” Campbell said. “To me, that is morally wrong.”

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