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This article was downloaded by: [University of Nebraska, Lincoln]On: 18 October 2014, At: 10:46Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH,UK
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NCLB AccountabilityCollides With Court-OrderedDesegregation: The Case ofPinellas County, FloridaElizabeth H. DeBrayPublished online: 18 Nov 2009.
To cite this article: Elizabeth H. DeBray (2005) NCLB Accountability Collides WithCourt-Ordered Desegregation: The Case of Pinellas County, Florida, Peabody Journalof Education, 80:2, 170-188, DOI: 10.1207/S15327930pje8002_10
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NCLB Accountability Collides WithCourt-Ordered Desegregation: TheCase of Pinellas County, Florida
Elizabeth H. DeBrayDepartment of Lifelong Education, Administration, and PolicyUniversity of Georgia
This article examines a conflict that arose in 2004 between a federal court’soversight of desegregation and the implementation of the public schoolchoice provisions of the No Child Left Behind Act in Pinellas County,Florida. School system leaders challenged the statute on the grounds that itwould likely disrupt a controlled-choice plan designed to achieve racial bal-ance as part of a court settlement to its desegregation case. The judge ruledthat no changes could be made to the prior court order mandating these bal-ances through 2008.
Drawing on interviews with the county school superintendent and schoolboard attorney, the author describes the county’s decision to seek the judge’sprotection and analyzes several attendant conflicts. These include the legalconflict between two federal mandates, desegregation and school choice; thepolitical tension arising between local and federal officials resulting from the
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PEABODY JOURNAL OF EDUCATION, 80(2), 170–188Copyright © 2005, Lawrence Erlbaum Associates, Inc.
I express my appreciation to Dr. J. Howard Hinesley, the Pinellas County, Florida Superin-tendent of Schools; Mr. John Bowen, Pinellas County school board attorney; and Dr. JulieJanssen, chair of the District Monitoring Advisory Committee, for their time and generosityin providing the data and interviews on which this case is based. Professor John Dayton’sconsultation about issues of constitutional law and Professors Priscilla Wohlstetter’s andKathryn McDermott’s insights about policy conflict and federalism are also appreciated.
Requests for reprints should be sent to Elizabeth DeBray, Department of Lifelong Educa-tion, Administration, and Policy, University of Georgia, 325 River’s Crossing, 850 College Sta-tion Road, Athens, GA 30602. E-mail: [email protected] or [email protected]
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changing nature of federal authority with respect to desegregation; and thepolicy-related conflict between test-based accountability and desegregationin southern school systems.
Implementation of an act of Congress plays out with myriad legal andadministrative complexities. As the other authors in this issue have noted,the new set of education policies of the No Child Left Behind Act (NCLB)must be grappled with by governors, state legislatures, state regulatoryagencies, and local policymakers. (For more information on governors’role in NCLB, see Fusarelli, 2005/this issue.) This article considers anothergovernmental arena in which the implementation has generated conflict:the federal court system. Specifically, a conflict is examined that has arisenbetween the courts’ oversight of desegregation and the implementation ofthe public school choice provisions of NCLB in Pinellas County, Florida.1(For a treatment of a similar conflict that arose in 2002 in RichmondCounty, Georgia, see DeBray, 2004.) In addition to the collision between thefederal statute’s mandated sanctions and federal court-ordered desegrega-tion, there are attendant potential political and policy conflicts, each ofwhich is outlined here as introduction to the specific case.
From a legal standpoint, this case involves a conflict between a federalcourt and a federal statute whose resolution is found in the supremacyclause of the constitution.2 The regulations for NCLB specify that local ed-ucational agencies must offer a choice of public schools to parents of allstudents in schools failing to make adequate yearly progress (AYP) as de-fined by the state for 2 or more consecutive years. The law requires districtsto give parents a choice of more than one school, and to give priority to thelowest achieving children from low-income families. According to the reg-ulations, districts may not use insufficient capacity as a reason to not offerchoice; they state that districts must create additional capacity or providechoices of other schools. A prestanding desegregation order also does notexempt a district from compliance. According to the regulations, districtsstill operating under a court order are to go back to the federal judge andseek the necessary modifications to the plan. If the district fails to securethe court’s approval, it is technically out of compliance with Title I (Public
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1Additonal background information on this conflict can be found in the Appendix.2An order by the executive, for instance, the U.S. secretary of education, cannot override
the holding of a U.S. district court judge on a constitutional issue. Considering that the federalcourt in this case is enforcing a desegregation plan based on previous constitutional viola-tions, the authority is in the hands of a court enforcing the Constitution, which prevails overNCLB. The Supremacy Clause of the U.S. Constitution makes it clear that the Constitution “isthe supreme Law of the Land” (Article VI, Clause 2).
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School Choice, 34 CFR § 200.44(c)(3)). The basis for a challenge is that theEqual Protection Clause of the Fourteenth Amendment trumps a federalstatute.
An inherent policy conflict, particularly in southern school systems, per-tains to the intersection of NCLB’s performance-based accountability viatesting and sanctions with declining levels of within-county racial integra-tion following unitary status declarations. Jack Boger (2003, p. 1378) framedthis issue when he wrote about the formation of a “perfect storm” in south-ern school systems: the convergence of test-based accountability, fundingdisparities, and the end of court-ordered desegregation. The end of racial as-signment plans combined with testing and sanctions (for instance, endingsocial promotion) and the disparity of fiscal resources may have a mutuallyreinforcing effect, Boger argued, that may exacerbate the achievement gapthat NCLB aims to eradicate. Such a conflict will be most apparent in schoolsystems deliberately attempting to retain a measure of racial balance.
Athird conflict is a political one that may arise between local and federalofficials resulting from the changing nature of federal authority regardingdesegregation of school systems. A reference to history best illustrates thispoint. Thirty years ago, officials in both the Department of Health, Educa-tion and Welfare, and the U.S. Office of Education used Title I of the Ele-mentary and Secondary Education Act (ESEA) as leverage to force south-ern districts’ compliance with school desegregation under Title VI of theCivil Rights Act. Both through its regulations and its guidance, the Bushadministration has sent southern school systems a reverse of this message:that court orders should be negotiated with judges to comply with NCLB’stransfer policy. That is, desegregation orders should be modified to accom-modate the law’s new provisions for new accountability and sanctions forlow-performing schools. The very different federal stance about desegre-gation may therefore create new tensions for local school systems that havecontinued to pursue strategies for maintaining racial balance, and it high-lights the problem of local consent and bargaining in the implementationof federal education policy.
This article considers these questions within the context of PinellasCounty, Florida, where school system leaders went to court to challengethe NCLB statute on the grounds that it would likely disrupt a con-trolled-choice plan designed to achieve racial balance as part of a court set-tlement to its desegregation case. In 2004, Pinellas County officials foundthemselves caught in the aforementioned conflict between performance-based accountability and its commitment to racially balanced schools viaan enforceable unitary status agreement. The resolution of the conflict re-quired not only court action, but also negotiation and bargaining amongfederal, state, and local levels.
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Research Context and Methods
The Pinellas County School District is a large countywide system sepa-rated from Tampa by Tampa Bay, serving approximately 113,000 students.Fifty-five out of 85 elementary schools in the county are Title I schools (i.e.,above 40% poverty). The county, which incorporates the city of St. Peters-burg, has an enrollment of just 18% African American students. (Thecounty schools as of 2004 had an enrollment of only 4% Latino students,very small when compared with neighboring Hillsborough County.) Thecounty’s African American students have long been concentrated in oneregion of South St. Petersburg. Julie Janssen (2001) described the county’sunique geography:
This school district has specific and unique geographical politics, stem-ming in part from the division of the County into north and south byUlmerton Road. The racial composition of students in the two geo-graphic regions are notably dissimilar with the majority of black stu-dents living in the southern part of the district and only small “pockets”of black students living north of the dividing line, Ulmerton Road.(p. 13)
It is worth noting that the fiscal capacity of Florida county systems topursue legal challenges is greater relative to other southern states becausethe counties are fewer but more populous.3 Florida has 67 counties, com-pared to neighboring Georgia’s 159, for instance.
The case contributes specifically to the knowledge base about the judi-cial implementation of federal education policies, particularly regardingschool desegregation. Federal district courts often have a substantial im-pact in independent policy making in local desegregation cases becausethe Supreme Court has given them wide jurisdiction in this area (Derthick,1999; Johnson & Canon, 1984). School desegregation in the era followingthe Supreme Court’s decision in Brown v. Board of Education (1954) involved“a tug of war [among] judicial, executive, and legislative branches in theimplementation of social programs” (Mazmanian & Sabatier, 1989, p. 139).During the late 1960s and early 1970s, however, the judicial and executivebranches of government worked in tandem to administer federal educa-tion policy. Title VI of the Civil Rights Act of 1964 prohibited the distribu-tion of federal funds to segregated school districts. Officials in the U.S. De-partments of Health, Education and Welfare and Justice enforced the
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3Thanks to Roger Mills, senior attorney in the Atlanta office of the U.S. Department of Ed-ucation’s Office for Civil Rights, for this point.
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provision by threatening to withhold funds for Title I of the Elementaryand Secondary Education Act from noncompliant southern school systems(Bullock, 1984; Jeffrey, 1978; Radin, 1977; Rodgers & Bullock, 1976). Thiscase, along with another recent court challenge in Richmond County (seeDeBray, 2004), presents an opposing set of historical circumstances: asouthern school system obeying the terms of its court order in the face ofthe new accountability policies and sanctions of NCLB. It indicates thelikelihood of judicial interpretation of the federal statute’s implications forlocal systems’ particular educational contexts and needs. The tensions be-tween the judicial and the legislative branches become an extension of thelegislative process. Robert Katzmann (1997) wrote that a precarious bal-ance exists between statutes and the federal courts:
When Congress does not give explicit direction about its legislativemeaning, it not only creates added burdens for the courts, it also in-creases the risk that the judiciary, in a good faith effort to make sense ofthe problems before it, will interpret statutes in ways that the legislaturedid not intend. (p. 48)
In terms of policy, it is the local–federal dynamic of education policy im-plementation that is most relevant to the present analysis. It has long beenrecognized that the local-level implementation of federal policies dependson the capacity and will of local actors and institutions (McLaughlin, 1987).Further, implementation involves bargaining and negotiation among lev-els of government (Bardach, 1977). County officials judged that the choiceprovision of NCLB was potentially disruptive to its negotiated settlementof maintaining racial balance in the school system. Federalism involvessuch competition between federal and local priorities. As Aaron Wil-davsky (1998) wrote,
In a federal regime, states and localities are disobedient. The operationalmeaning of federalism is found in the degree to which the constituentunits disagree about what should be done, who should do it, and how itshould be carried out. In a word, federalism is about competition andconflict. (p. 66)
The research for this article comprises two primary sources. The firstsource is two joint interviews by the author of the county’s school superin-tendent since 1990, Dr. J. Howard Hinesley and the school board attorneysince 1995, Mr. John Bowen, conducted on March 12 and June 16, 2004. Theinterviews focused on the details of the legal and policy-related details ofthe court case, as well as on the substance of their communications with
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federal and state officials. The author also met with the chair of the DistrictMonitoring Advisory Committee, Julie Mastry Janssen, on June 16, 2004.The second source is official documents, including court orders, corre-spondence between county U.S. Department of Education officials, andregulations of the U.S. Department of Education. Thus the methodology ishistorical, although the history documented is quite recent.
Table 1 shows a complete timeline of the events described in the remain-der of this case.
The Original Case: Bradley v. Pinellas County
In Pinellas County, it was the terms of the 2000 unitary status declara-tion in the case of Bradley v. Pinellas County (1970) that generated the legalconflict with NCLB.
Like many southern districts, the federal district judge‘s mandate forthorough desegregation of the system came in the wake of Swann v. Char-lotte-Mecklenburg (1971). In Swann, the Court held that express racial goalsfor student populations at each desegregating school were necessary, thatbusing was an appropriate means to achieve desegregation, and that ad-ministrative “pairing” of geographically dispersed neighborhoods was an
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Table 1
Timeline of Major Events of Pinellas County Case
1970 Federal Court of Appeals issues declaration of dual system in Bradley v.Pinellas County.
1971 Court mandates the integration of schools in South St. Petersburg.1998 School board votes to seek permission to come out from under court order.
Federal district judge Steven Merryday orders report on six Green factorsas well as quality of education in county schools.
1999 Agreement reached by county and plaintiffs on countywide choice plan forracial balance through 2007–08.
2000 Judge Merryday declares the Pinellas County schools officially unitary,stipulating supervision of racial balance goals through 2007–08 and a planto upgrade facilities in south county.
2003 County choice plan initiated; first year of labeling schools not making AYPunder NCLB.
2004 April—County school board attorney files motion in federal district court inTampa for judge to consider conflict between NCLB public school choiceand pre-existing choice plan.
May—Federal Education Department communicates to Florida’s state educationcommissioner that the court-ordered choice plan satisfies NCLB choice.
June—Judge Merryday rules that no changes may be made to the existingcourt-ordered choice plan.
Note. AYP = adequate yearly progress; NCLB = No Child Left Behind Act.
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acceptable means of achieving countywide desegregation goals. InPinellas, however, because of the way the judge drew up the desegregationplan in the early 1970s, Whites in the northern part of the county werenever included in the busing order.
Thousands of elementary students south of the dividing line of UlmertonRoad were bused outside their neighborhoods into South St. Petersburg in2-year rotation cycles. The court order that was in effect from 1971 through2000 held that no school building enrollment would exceed 30% AfricanAmerican students (it was changed to 42% beginning with the 2003–04school year). Particularly notable is the effect that court-ordered busing hadon reducing racial isolation in the county between 1970 and 1976. With theproportion of African American enrollment holding constant at 16% withinthat time period, in 1976 there were only 3.8% of Black students attendingmajority African American schools, whereas, in 1970, 54.5% of Black stu-dents had attended schools that were majority Black (Bullock, 1984, p. 70).Magnet programs were proposed by the school board as a desegregationstrategy and were included in the county’s desegregation plan pursuant toan amendment of the Final Court Order in May 1988.
During the 1990s, three major Supreme Court decisions—Board of Edu-cation of Oklahoma v. Dowell (1991), Freeman v. Pitts (1992), and Missouri v.Jenkins (1995)—made it easier for districts to be declared “unitary” andcome out from under court supervision, and many southern school sys-tems did so. In 1998, in response to both Black and White families who “in-sisted that the means of achieving racial balance had outweighed the bene-fits gained” (“As Court Steps Aside,” 2000, p. 1D), the Pinellas CountySchool Board voted 6 to 1 to ask the U.S. District Court for the school sys-tem to be declared unitary. Judge Steven Merryday of the federal districtcourt in Tampa appointed a mediator to facilitate the negotiations betweenlawyers representing the NAACP and the school board, a process thatwent on for almost 2 years. The judge required that they report on each ofthe six Green factors4 (Janssen, 2001, p. 80), in addition to a general reporton the quality of education in the county.
Both sides agreed that it was necessary to develop a plan that would fos-ter voluntary integration to the greatest extent possible after a unitary sta-tus declaration. Superintendent Hinesley, district staff, school board mem-bers, and attorney John Bowen visited several school districts to findmodels of how controlled choice plans could foster racial integration. Un-
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4In Green v. County School Board of New Kent County 391 U.S. 430 (1968), the Supreme Courtheld that school systems must eradicate desegregation “root and branch,” and that it must beachieved with respect to six factors: student assignment, facilities, staff, faculty, extracurricu-lar activities, and transportation.
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der a 1999 order, Judge Merryday approved a settlement for completion ofa facilities improvement plan and a 4-year program of voluntary schoolchoice. The judge declared the county officially unitary in August 2000.
The Parties Settle on a Choice Student Assignment Plan
The Pinellas countywide choice plan that was developed pursuant tothe court order has elements in common with those in Char-lotte-Mecklenburg, North Carolina, and Lee County, Florida (Janssen,2001). The agreement emphasizes family choice for school attendance, notcourt or school board assignments of students to schools. The parties wereable to reach agreement on a choice student assignment plan that they felthad the best probability of providing for a stable integrated school system.
The choice agreement was designed to ensure racial balance withinschools through 2007, with particular concern for South St. Petersburg,where 85% of the county’s African American families live. The choice planprovided for 4 years of controlled choice with racial ratios, beginning withthe 2003–04 school year, followed by 1 year of choice without racial ratiosin 2007–08. Janssen wrote (2001, p. 126) that “Choice areas were drawn af-ter careful consideration was given to density, proximity, grandfathering,and a variety of other factors.” Magnet schools were an integral part ofcontrolled choice. Any family that moved into a new home after June of2001 was required to participate in the choice plan.
The plan divided the district into four elementary school attendance ar-eas, three for middle, and one for high schools. None of those areas couldexceed 39% African American students, or have less than 7%. Moreover,the plan specified that no school could have a proportion of African Amer-icans exceeding 42%, and the minimum percentage of Black students inany schools should not be less than the percentage of Black students in thattype of school in that area of the county, less 15%.
A key facet of the student assignment plan was that all families wouldparticipate; north county residents would no longer be exempted. Whenthe fairness hearing was conducted before Judge Merryday, parents livingnorth of the original line indicated that they had never been impacted, andasked why they must be part of the choice plan when they had never beenpart of the former court order. Judge Merryday held firmly, however, to theprinciple that, in a county system, all residents must be a part of the plan.As Superintendent Howard Hinesley stated (as cited in Janssen, 2001),
At the heart of this new choice plan was the commitment to have a sin-gle plan applied uniformly to the entire district, thus eliminating the
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“north county-south county” syndrome we have endured for almost 30years. … Choice simply provides an opportunity for parents to look be-yond their neighborhoods for programs that may address specific needsor interests of their children and, in doing so, may assist with naturallyintegrating our schools. (p. 144)
The voluntary choice plan for the entire county was implemented in thefall of 2003, with families getting a choice of schools within drawn “atten-dance area” boundaries and being assigned based on capacity, waitinglists, and the racial balance ratios.
The plan’s implementation was not without difficulties. For instance,grandfathering of many students at several schools contributed to over-crowding, as the reduction in enrollment to get schools to their appropriatecapacities had to occur gradually over many years (J. Janssen, personalcommunication, June 16, 2004). Still, the racial balance ratios wereachieved.
A vital part of the 2000 unitary status agreement was a stipulation forcontinuing the upgrading of facilities and resources (Bradley v. PinellasCounty, 2000). It called for new “stations” (per-pupil capacity) at variousgrade intervals: 2,587 new elementary school stations, a middle schoolwith permanent capacity for 1,000 stations, and 600 new high school sta-tions in South St. Petersburg. The purpose was replacement of those sta-tions that had been lost in the 1970s in South St. Petersburg when many ofthe formerly Black schools had been closed. Both the county and theNAACP believed that it was necessary to provide the new stations so thatAfrican American families would be able to participate in the choice stu-dent assignment plan by choosing schools closer to their homes. The agree-ment also required “non-discriminatory distribution of educational re-sources among all schools and includes a specific non-discriminationrequirement with respect to future additions or renovations to school facil-ities” (Bradley v. Pinellas County, 2000).
To comply with the order for facilities construction, both Hinesley andBowen, along with district staff, invested a tremendous amount of time inconvincing south county residents to sell their homes to the county. Ratherthan add additional stations to existing schools, the county opted to teardown three small older schools and build a total of five new elementaryschools, putting the additional stations with them. To build the new ele-mentary school and open a new middle school with sufficient land, in 2001the county arranged, through a complex legal process, the purchase of 184lots from 160 families in South St. Petersburg, almost all of whom were Af-rican American. The county arranged every aspect of the negotiation withthe residents, from appraisals to relocation to covering the 1st year of mort-
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gage in new homes (the county paid for appraisals, offered on the high sideof highest appraisals, and covered the 1st year of the new house’s mort-gage). This high-visibility feat was dependent on overcoming the ques-tioning of the county’s motives by African American families in the com-munity. Initially, many of the families were suspicious that the countymight cheat them out of their land, but the result, according to Bowen, wasthat “we haven’t had one complaint” (interview with John Bowen, March12, 2004), and residents have been pleased with the new middle school.
The expense to the county was significant; it expended nearly $159 mil-lion in the construction of the new schools with the additional stations, in-cluding the purchase of the homes. The facilities component was viewedas critical to making the controlled choice plan work.
The Conflict With NCLB
The legal and policy-related difficulties became apparent when all of theracially integrated schools located in the South St. Petersburg neighbor-hood were declared by the state of Florida in 2003–04 to be not making AYPunder its definition. Because the Florida State Board of Education voted toraise the cutoff score for proficiency on the Florida Comprehensive Assess-ment Test (FCAT) for 2005–06, the county anticipated two consequences re-lated to Title I. First, the same schools would once again fail to make AYP;second a significant number of parents of either race exiting the identifiedschools could throw off the mandated balances. Because NCLB specifiedthat parents have the right to request a transfer into any eligible receivingschool in the county, compliance with NCLB would discount the atten-dance area boundaries of the County’s choice plan that confined studentsto their own region of the county. The possible result was that many Whiteparents might go back to their neighborhood schools with a resegregativeeffect. If African American parents left, the minimum percentage require-ment could be thrown off in south county. Second, since the Florida consti-tution mandated class-size reduction, parental demand for spaces in the“nonfailing” schools might potentially conflict with state law. The law lim-its class sizes to 18 in Grades K–3, 22 in Grades 4–8, and to 25 in highschool, to be phased in by 2010 (Richard, 2004).
Superintendent Hinesley decided in March 2004 that, because the 2000court order contained capacity provisions as well as racial-balance ratios, itwas impossible for the county to comply with the choice provisions ofNCLB. When Hinesley in early 2004 informed Governor Jeb Bush, FloridaCommissioner of Education Jim Horne, and Chancellor Jim Warford of theconflict and asked for their support in telling the federal government that
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they could not comply, Chancellor Warford sent a letter informing him thatthe issue needed to be settled in court.
On April 30, 2004, school board attorney John Bowen filed a motion inthe U.S. District Court in Tampa. He argued that most if not all of the 44schools that failed to make AYP during 2002–03 would fail again in2003–04. Based on this data, the county predicted that as many as 1,647 stu-dents at 44 Title I schools would elect to transfer if federal rules were al-lowed to stand, whereas only 949 seats would be available (Tobin, 2004).Twenty-two schools in the choice zone in South St. Petersburg would likelybe on the list, leaving only three schools in the zone eligible to be receivingschools. Bowen’s brief argued that, for the county to comply with NCLB’spublic school choice provisions, the capacity requirements and race ratiosin the 2000 court order would have to be altered (Bradley v. Pinellas County,2004a).
The motion read,
While the choice student assignment plan and the amended final orderdo not “forbid” the district from offering the transfer option, in order tooffer the option the district would have to violate the provisions con-cerning capacity, choice attendance areas, waiting lists and maximumand minimum ratios. It is, therefore, necessary to secure appropriatechanges to the choice plan as required by the United States Departmentof Education regulation at CFR§200.44 (c)(3). (Bradley v. Pinellas County,2004a, p. 8)
“The problems of complying with both the requirements of NCLB andthe choice student assignment plan,” the motion read, “will continuethroughout the four years of controlled choice” (Bradley v. Pinellas County,2004a, p. 8). The latter statement captures the tension between perfor-mance-based accountability policies and desegregation policies. If NCLBtransfer students could suddenly get into magnet or fundamental schools5
ahead of families that had been on the county’s waiting lists, there was asignificant problem of unfairness. Bowen’s motion did suggest that onepossible alternative for the court might be to enter an order that the districtwould provide the transfer option required only to the extent that it couldunder the court order and choice student assignment plan (2004a, p. 9).The NAACP Legal Defense Fund submitted a plaintiff’s response toBowen’s motion, recommending that the Judge allow choice outside of theattendance zones (Bradley v. Pinellas County, 2004b). This ran counter to the
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5A fundamental school is a kind of magnet school with specific requirements for parentalparticipation. Unlike the regular magnets, they do not have specialized curricula.
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terms of the unitary status consent decree. The plaintiffs’ position reflectedtheir attempting to take a “middle way” between the two conflicting ver-sions of choice.
The prospect of White flight from schools in south county was viewedby the superintendent and school board attorney as a direct threat to thecourt order of 2000. As in Richmond County, the school board and theNAACP Legal Defense Fund, for 2 years leading up to the 2000 unitary sta-tus declaration, had carefully navigated the terms of maintenance of ra-cially balanced attendance zones (DeBray, 2004). Violating the choice planin Pinellas would not only be a violation of the judge’s consent decree; incounty officials’ judgment, it was also potentially inflammatory to thoseresidents who had willingly sold their houses to the county for the expresspurpose of meeting the Green factor of equal facilities in south county.Thus, Bowen’s filing of the motion represents an assertion of local control,particularly regarding compensatory education, in the face of the tight-ened federal regulation approved by Congress.
The State as Intermediary
The story of the motion’s filing was covered by both the Tampa and St.Petersburg newspapers; when officials from the U.S. Department of Edu-cation in Washington called requesting copies of the motion, Bowen sentthem. Soon afterward, Dr. Jim Warford, Florida’s K–12 chancellor of educa-tion, called Dr. Hinesley to say that he would be sending a letter immi-nently that would state that the county’s choice plan was in compliancewith NCLB’s transfer policy; the state expected to receive written confir-mation of this from the federal undersecretary of education, EugeneHickok. That way, Warford said, Pinellas would not have to go to court.When Superintendent Hinesley called Warford back a few days later,Warford reported that the federal Education Department had not yet sentthe letter. At this point, Dr. Hinesley asked him to put it in writing, whichWarford did (interview with H. Hinesley, June 16, 2004). In a May 17 mem-orandum, Warford wrote that the federal government had communicatedto the state via verbal approval that Pinellas County could deliver the pub-lic school choice sanctions required under the district’s existing ChoiceStudent Assignment Plan, “with the added provision of prioritization forlowest performing students,” and that written confirmation from the fed-eral Education Department would be forthcoming (Warford, 2004). Bowenimmediately filed the state’s letter with the court.
In logistical terms, the clause about prioritizing choice for students withthe lowest academic achievement and income presented an obvious con-
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flict with controlled choice. As Hinesley said, “in one area of the county, itwould mean sending out 6000 letters for 300 slots” (interview with H.Hinesley, June 16, 2004). In June, the state identified 36 schools that had notmade AYP for 2 consecutive years; as Hinesley had predicted, the majorityof those schools were located in South County.6
As the county awaited the judge’s ruling, Bowen said,
The position we’re taking right now is that we have to comply with [theconsent decree]. The federal Department of Education does not have theauthority to direct a federal judge to change an order that had been dulyentered. As a matter of fact, this particular order is a final judgment andwas not appealed, so the judge may not even have jurisdiction to changeit at all. He does have authority to enforce it; he reserved jurisdiction asnecessary to enforce the court order. (interview with John Bowen, June16, 2004)
Bowen’s assessment proved correct. On June 17, 2004, Judge Merrydayissued an order stating simply that he denied the county’s motion to makeany alterations to the final order. He wrote,
The motion fails to state an immediate and sufficient basis to excuse theschool board’s complete compliance with the obligations of the final or-der, which enforces an arduously negotiated settlement agreement andwhich is supported (or more exactly, compelled) by fundamental andpre-eminent principles of federal law. (Bradley v. Pinellas County, 2004c)
Judge Merryday then cited Swann v. Charlotte-Mecklenburg (1971), Green v.County School Board of New Kent County (1968), and Brown v. Board of Educa-tion (1954) in support of his position that the 2000 final order could not beamended. Merryday also denied the school board’s request for a hearing.The judge in his order made no mention of the NCLB, showing that heviewed it as completely subordinate to the constitutional issue at hand.Bowen and Hinesley had secured the affirmation of their position that theyhad sought. What is significant about the resolution in terms of currentfederal education policy, however, is that the U.S. Department of Educa-tion demonstrated an apparent willingness to adapt its political stance. In2002, federal officials were strict with Richmond County officials when
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6In June 2004, it was apparent that Florida’s state accountability system and the federalregulations were not mutually consistent. Though Florida’s state’s accountability systemgave grades of A to nearly half of all schools statewide, 77% had failed to make AYP underNCLB (Matus & Waite, 2004).
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they requested and obtained approval for a year’s delay of choice from afederal district court judge, chiding the superintendent for having soughtthe protection of the court (see Hickok, 2002). Two years later, in Pinellas,the federal department was willing to grant the Florida Department of Ed-ucation verbal approval to implement NCLB in accordance with the choiceplan. Federal officials’ actions were likely affected by the interrelated fac-tors that the conflict arose in a presidential election year and the governorof Florida (an election “swing state”) was the president’s brother, as well asthat state and federal education policy were considered high-profile elec-toral issues in Florida (Neal & Poole, 2004). Pinellas County officials stillhave not received any formal written confirmation from the federal Educa-tion Department of its exemption from NCLB choice.
Conclusion
That the first major court challenges to NCLB should arise over desegre-gation in southern systems is revealing about how dramatically federalpriorities have shifted during the George W. Bush administration. The po-litical and regulatory stance that the Education Department has taken isthat local educational agencies must petition their judges for changes tocourt orders to comply with choice. The federal Education Department’sinjunction to “go back to the court and make modifications” has been de-clared moot by the federal district court judges in both Richmond andPinellas counties. Federal statutes are subject to judicial review, and the su-premacy clause of the Constitution holds that a federal court order trumpsfederal statutes on a constitutional matter. Indeed, as NCLB entered its 3rdyear of implementation in 2004–05, legal challenges to the law appearedplausible on a variety of grounds. Wisconsin Attorney General PeggyLautenschlager, for instance, wrote in June 2004 that the statute might besuccessfully challenged in court on the grounds that it is inadequatelyfunded given the demands it has made on states to comply with its testingand accountability provisions (Keller, 2004).
Though the U.S. Department of Education did not commit its accommo-dating stance to paper, it communicated to state officials the acceptabilityof Pinellas’s plan. The relevant point about the federal implementation ofNCLB is that in spite of its rhetoric, the federal Department is actually ac-commodating state and local demands. The Education Department hasgradually softened its stance and is attempting to avoid high-profile con-flicts, even if it does so tacitly and without official written approval.Though federal officials could technically have withheld Title I fundsfrom Pinellas County for its lack of compliance (although also technically,
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Pinellas might have been able to sue the federal government if it were towithhold funds),7 it would have involved a high-profile political battle.Thus, their retreat from the conflict was tacit, its reasons never clearlygiven to the county. To use Katzmann’s terms, this judge’s ruling and anyothers that follow become an important part of the legislative process be-cause they are negotiations of the scope of federal authority. It is possiblethat Congress will pass an override clarifying the statute, but that may beunlikely to happen unless there is pressure from interest groups, that is,civil rights organizations.8
Pinellas County represents a relative rarity, a southern school systemthat is attempting to maintain a measure of racial integration in a seriousway after it has been declared unitary.9 The policy issue that local officialswere most concerned about was not just racial balance, but the interplaybetween test-based accountability and the end of court-ordered desegrega-tion. Indeed, in early July 2004, a Pinellas-Pasco state circuit judge grantedclass-action status to a lawsuit charging the Pinellas County Schools withfailing to educate its African American students, as evidenced by theachievement gap between African American students and others. The suit,first filed in 2000, contends that school officials have not taken concretesteps to deal with the racial achievement gap and thus are violating theequal protection clause in the Florida constitution. The plaintiffs allege thatthe desegregation case never specified the concrete steps the countyshould take to ameliorate the achievement disparities (Matus, 2004).
Clearly, NCLB is placing Boger’s “perfect storm”—that is, the conver-gence of funding disparities, performance-based accountability, and the
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7The Code of Federal Regulations 34 § 80.43 reads “If a grantee or subgrantee materiallyfails to comply with any term of an award, whether stated in a federal statute or regulation, anassurance, in a State plan or application, a notice of award, or elsewhere, the awarding agencymay … temporarily withhold cash payments pending correction of the deficiency by thegrantee or subgrantee or more severe enforcement action by the awarding agency.” On theother hand, because the county is bound by a constitutional order from complying, it is possi-ble that it could sue the federal government if it withheld Title I funds.
8For a discussion of the political factors that may lead Congress to pass an override of astatute, see Barnes (2004).
9Other such systems that have been declared unitary but continue to operate controlledchoice plans include Lee, St. Lucie, and Hillsborough counties in Florida; Charlotte-Meck-lenburg, North Carolina; and Greenville, South Carolina. However, unlike Pinellas’s plan,these plans focus on reducing school-level concentration of low-income students and so relyon free and reduced lunch status and achievement measures rather than on race (seeKahlenberg, 2002). In Louisville, Kentucky, U.S. District Judge John Heyburn II ruled on June29, 2004, that the Jefferson County Public School System may keep its student assignmentplan that considers race to maintain the benefits of integrated schools. However, the systemmust drop its distinct admissions system used at nine traditional magnet schools that sepa-rates applicants by race before they are selected for enrollment.
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end of court-ordered desegregation—into even bolder relief, particularlyin southern school systems in which comparatively high levels of integra-tion had been achieved. Pinellas County is a venue for further researchabout the challenges of maintaining racial balance following its unitarystatus declaration.
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As court steps aside, Pinellas County schools face new challenge. (2000, August 13). St. Peters-burg Times [State edition], p. 1D.
Bardach, E. (1977). The implementation game: What happens after a bill becomes law. Cambridge,MA: MIT.
Barnes, J. (2004). Overruled?: Legislative overrides, pluralism, and contemporary court-congress re-lations. Stanford, CA: Stanford University Press.
Board of Education of Oklahoma v. Dowell, 498 U.S. 237 (1991).Boger, J. C. (2003). Education’s “perfect storm”? Racial resegregation, high stakes testing, and
school resource inequities: The case of North Carolina. North Carolina Law Review, 81(4),1375–1462.
Bradley v. Pinellas County School Board. (2000). (Amended Final Order Withdrawing FederalSupervision and Granting Unitary Status to the Public Schools of Pinellas County).
Bradley v. Pinellas County School Board Case No. 8:64-CV-98-T-23B (2004a). (Motion for Re-lief from Court Order Pursuant to 34 CFR § 200.44c).
Bradley v. Pinellas County School Board Case No. 8:64-CV-98-T-23B (2004b). (Response toMotion for Relief from Court Order [filed by the plaintiffs’ attorney]).
Bradley v. Pinellas County School Board Case No. 8:64-CV-98-T-23TGW (2004c). (Judge’s Or-der Denying the Motion for Relief from Court Order Pursuant to 34 CFR § 200.44c).
Bradley, et al., v. School Board of Pinellas County, Florida, et al., 431 F. 2d 1377 (5th Cir. 1970),(1965), amend. (1989).
Brown v. Board of Education, 347 U.S. 483; 74 S. Ct. 686 (1954).Bullock, C. S. (1984). Equal education opportunity. In C. S. Bullock & C. M. Lamb (Eds.), Imple-
mentation of civil rights policy (pp. 55–92). Belmont, CA: Wadsworth.DeBray, E. (2004). “The equitable powers of the judge”: The conflict between No Child Left
Behind and court-ordered desegregation in Richmond County, Georgia. Equity and Excel-lence in Education, 37, 264–277.
Derthick, M. (1999). How many communities? The evolution of American federalism. In M.Derthick (Ed.), Dilemmas of scale in America’s federal democracy (pp. 125–153). New York:Cambridge University Press.
Education Enforcement Provisions, 34 Code of Federal Regulations § 80.43 (2004).Elementary and Secondary Education Act. Pub. L. No. 89-10, 79 Stat. 27, 20 U.S.C. 236-41
(1965).Feltes, G. (1999). A guide to the U.S. federal legal system: Web-based publicly accessible sources.
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Freeman v. Pitts. 503 U.S. 467 (1992).Fusarelli, L. (2005/this issue). Gubernatorial relations to NCLB: Politics, pressure, and educa-
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Jeffrey, J. R. (1978). Education for children of the poor: A study of the origins and implementation ofthe Elementary and Secondary Education Act of 1965. Columbus: Ohio State University Press.
Johnson, C., & Canon, B. (1984). Judicial policies: Implementation and impact. Washington, DC:Congressional Quarterly.
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Katzmann, R. (1997). Courts and Congress. Washington, DC: Brookings.Keller, B. (2004, May 26). Wisconsin review invites “No Child” Lawsuit. Education Week, p. 1.Matus, R. (2004, July 3). Lawyer: Schools’ next step not clear. St. Petersburg Times [South
Pinellas edition], p. 1B.Matus, R., & Waite, M. (2004, June 16). Schools graded a success by state, a flop by feds. St. Pe-
tersburg Times [Tampa edition], p. 1A.Mazmanian, D., & Sabatier, P. (1989). Implementation and public policy. Lanham, MD: Univer-
sity Press of America.McLaughlin, M. (1987). Learning from experience: lessons from policy implementation. Edu-
cational Evaluation and Policy Analysis, 9, 171–178.Missouri et al. v. Jenkins et al. 515 U.S. 70 (1995).Neal, T., & Poole, J. (2004, June 15). A test in Florida. The Washington Post [Electronic edi-
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No Child Left Behind Act of 2001. Pub. L. No. 107-110, 115 Stat. 1425 (2002).Public School Choice, 34 Code of Federal Regulations § 2002.Radin, B. (1977). Implementation, change, and the federal bureaucracy: School desegregation policy in
HEW. New York: Teachers’ College Press.Richard, A. (2004, February 18). Class-size reduction is slow going in Florida. Education Week,
pp. 30,35.Rodgers, H., & Bullock, C. (1976). School desegregation: A multivariate test of the role of law
in effectuating social change. American Politics Quarterly, 4, 153–175.Swann v. Charlotte-Mecklenburg. 402 U.S. 1 (1971).Tobin, T. (2004, May 1). Law risk to choice, court told. St. Petersburg Times [South Pinellas edi-
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APPENDIX
In this case, there was a conflict between executive agency regulationsand federal case law. The overriding legal principle is that federal statute, inthiscasetheNoChildLeftBehindActof2001, issubject to judicialreview.
Some background on the federal court system may be useful to thereader. The following is excerpted from Gretchen Feltes (1999), A Guide tothe U.S. Federal Legal System: Web-Based Publicly Accessible Sources:
The Court System: Article III of the Constitution establishes the federaljudiciary branch of government. … The Constitution gives Congress theauthority to create additional federal courts. The hierarchical systemwhich evolved is Courts of Appeal and, Federal District Courts (lowerlevel trial courts). The federal courts have the judicial responsibility torule on the constitutionality of federal laws, to interpret and to apply thelaws to resolve disputes. …
A lower court’s ruling on an issue of law may be appealed to the in-termediate appellate court. In the federal court systems, these interme-diate courts are the United States Courts of Appeal. …
Congress has the authority to write the laws but gives authority topromulgate rules and regulations to interpret and to administer thoselaws to the federal agencies. The government agencies issue rules andregulations that have the force of law and preempt state laws and rules.A general statement describing the rule’s purpose and authority usuallyaccompanies the final rule. Technically, the administrative law is subor-dinate to legislation. In addition, the President has broad powers to is-sue executive orders to direct the actions of agencies or government offi-cials or to set policies for the executive branch to follow.
Federal rules and regulations can be challenged in the federal courts.Most challenges occur in the United States Courts of Appeal based onthe premise that the fact-finding aspects of the case, the trial of the case,has occurred in the agency hearing and subsequent agency appeals. Thecourts have the authority to review federal agency rules and actions.The court can decide all relevant questions of law, interpret the constitu-tional and statutory provisions, and interpret the meaning or applicabil-ity of a rule or regulation.
The jurisdiction of the federal courts is outlined in “Understanding theFederal Courts”:
Before a federal court can hear a case or “exercise its jurisdiction,” cer-tain conditions must be met. First, under the Constitution, federal
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courts exercise only “judicial” powers. This means that federal judgesmay interpret the law only through the resolution of actual legal dis-putes, referred to in Article III of the Constitution as “Cases or Contro-versies.” A court cannot attempt to correct a problem on its own initia-tive, or to answer a hypothetical legal question. Second, assuming thereis an actual case or controversy, the plaintiff in a federal lawsuit alsomust have legal “standing” to ask the court for a decision. That meansthe plaintiff must have been aggrieved, or legally harmed in some way,by the defendant. Third, the case must present a category of dispute thatthe law in question was designed to address, and it must be a complaintthat the court has the power to remedy. In other words, the court mustbe authorized, under the Constitution or a federal law, to hear the caseand grant appropriate relief to the plaintiff. Finally, the case cannot be“moot,” that is, it must present an ongoing problem for the court to re-solve. The federal courts, thus, are courts of “limited” jurisdiction be-cause they may only decide certain types of cases as provided by Con-gress or as identified in the Constitution.
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