Two federal agencies differ on whether Wake County school officials can surrender data lawfully on students who were assigned to schools based on their enrollment in subsidized nutrition programs.
The disagreement could lead to better clarity on whether school districts can use the federal government’s free and reduced-price lunch program as a substitute for poverty in student assignments. Wake schools adopted that policy a decade ago after courts outlawed assignment strategies based on race.
For the time being, the school system’s old policy of busing students to achieve socioeconomic diversity in the classroom appears to be dead.
“As far as I’m concerned, it is [definitive] at this point,” said Wake County School Board attorney Ann Majestic.
The development resulted from a U.S. Department of Education civil rights investigation into whether classrooms are being resegregated under the Wake school board’s new conservative majority. The department sought information from Wake on the number of students enrolled in the school lunch program who were bused for diversity reasons.
Administered by the U.S. Department of Agriculture, the free and reduced-priced lunch program is meant for families at or below 185 percent of the federal poverty level — roughly an annual income of $40,000 for a family of four. Districts sometimes use the data to gauge the number of low-income students assigned to a particular school.
Majestic contacted attorneys with the Department of Education after reading a 2009 memo (PDF) from the USDA saying that school districts can’t use school-lunch data for assignment purposes without parental consent.
“The release or use of individual children’s eligibility status for the purposes of student assignment or for other unauthorized use must be discontinued,” wrote Cynthia Long, director of the USDA’s Child Nutrition Division.
Mara McElmurray, a program analyst with the USDA, reinforced the memo in an e-mail (PDF) from mid-February. She said federal law prohibits release of the information, even to a federal agency such as the Department of Education.
“Not only student specific data but any information related to our free and reduced price application or direct certification process cannot be released in this instance unless there is prior notice and informed consent from the parent,” McElmurray wrote.
In an e-mail exchange with Majestic, federal civil rights investigators with the Department of Education said the restriction applied to individual data on students, not the aggregate numbers. But McElmurray disagreed, saying the memo establishes that “release of student data for the purposes of student assignment, which is what you are requesting, is not permissible” (emphasis in original).
The school system is waiting for a definite answer from the agencies on the permissibility of yielding the information to the federal government, Majestic said, but officials are proceeding as if it’s outlawed.
“It’s a statutory thing, not just a regulation, so we’ve got to take it pretty seriously,” she said.
The Department of Education investigation was launched following a complaint from the North Carolina NAACP. In a press release reacting to the USDA’s determination, the group’s president, the Rev. William Barber, claimed the agency had misrepresented the law.
“We will continue to investigate all available options to engage the USDA on this matter,” Barber said.
Even if the agencies decide that it’s legal to surrender the data, however, Wake still might not comply. That’s because school officials say they didn’t keep track of diversity-based assignments.
“While it is certainly possible that [socioeconomic status] diversity played a greater role in staffs’ decision to recommend some node moves as compared to others, there is no data set that would readily identify such nodes,” Majestic wrote in a response to the Education Department’s request for data.
School board chairman Ron Margiotta, for many years the board’s only voice critical of diversity busing, questioned that claim.
“I don’t believe that we don’t have those numbers,” he said.
David N. Bass is an associate editor of Carolina Journal.