Judges bolster students' lawsuit
Class-action status is granted for thousands of black students who say the educational achievement gap is the fault of the school system.
By THOMAS C. TOBIN, St. Petersburg Times Staff Writer
Published September 29, 2005

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More than 20,000 Pinellas black students can stand together against the school system in a lawsuit that alleges they are not being properly educated, a three-judge appeals panel ruled Wednesday.

The decision granting class-action status to the lawsuit sets the stage for an extraordinary legal battle over some of the biggest questions facing American educators today:

How should school districts address the low achievement of black students and disproportionately high number of disciplinary actions against those students? Can school systems alone be held accountable for the problem?

The case is thought to be a one-of-a-kind attempt to get the courts to resolve a complex issue that educators historically have tried to work out in the classroom.

It also raises the specter of the school district deposing scores of children in an effort to prove that the "achievement gap" between black and white children is a matter of individual circumstance and effort, not the fault of the system.

Lawyers for plaintiff William Crowley argue the numbers are so damning they prove a systemwide failure to "meet the needs and requirements of students of African descent."

The lawsuit alleges the district has failed to give every student a "high quality" education, in violation of the Florida Constitution and state law.

Crowley's son, Akwete Osoka, "experienced substantial academic difficulties" that are typical of those faced by black students in Pinellas, the suit charges.

The district contends it is working hard to close the achievement gap, but that the disparity is a complicated phenomenon caused by factors schools cannot control.

Among the factors cited by researchers: a high incidence of poverty among black families; distrust by some black parents of white-run schools; and time in front of the television in black households that exceeds the rest of the population.

Researchers also have focused on the differences in culture and class between many black students and an American teaching corps that is largely white and middle class.

The lawsuit is not related to the 40-year-old federal desegregation case against Pinellas, which primarily deals with whether schools are racially integrated. In that action, which resulted in the school choice plan, a federal judge concluded that the district no longer discriminates against black children.

Wednesday's decision in the Crowley case was a blow for district officials.

In an Aug. 16 hearing, they asked the 2nd District Court of Appeal to overturn a ruling last year by Pinellas Circuit Judge James R. Case granting class-action status to the plaintiffs.

The appeals court said Wednesday it found nothing wrong with that ruling.

Superintendent Clayton Wilcox said he would consult with lawyers before recommending to the School Board whether to appeal to the Florida Supreme Court or ask the 2nd District judges to reconsider.

However, he added: "My sense is we won't throw good money after bad."

Wilcox indicated he might be ready let the five-year-old lawsuit go to trial. "It'll be interesting to see if (the plaintiffs) can prove their case on the merits," he said.

Guy Burns, the prominent Tampa lawyer representing Crowley, said he would welcome a trial.

"I would hope that finally the School Board would try to sit down and talk about this," he said. "Let's get about the business of fixing it and quit the avoidance. ... They spend a lot more time trying to avoid the problem rather than dealing with the problem."

Burns said that he was not sure what the remedy would be but that it was the school district's job under state law to come up with one.

District officials, citing a number of classroom initiatives, have said they would be hard-pressed to do much more in an age when the government is pressing them as never before to address the gap.

The No Child Left Behind Act requires U.S. school districts to make sure all students are achieving at high levels by 2014, regardless of their race or disability.

The Crowley case was filed in August 2000, a year and a half before Congress approved the act.

If Pinellas does not appeal Wednesday's ruling, the two sides would meet with Case to determine a method for notifying the families of all 21,000 black students in Pinellas public schools that they are party to the lawsuit. According to Burns, the students would not be able to opt out of the lawsuit because the action does not allow for a monetary award.

Repeating what his lawyers said in arguments before the appellate judges last month, Wilcox said the district would defend itself in part by calling in scores of students to be questioned by lawyers.

The strategy: to prove the gap is an individual matter - that some black students do well while others don't and that the factors behind their performance vary.

Wilcox acknowledged that pulling students into depositions could be painful for some, but he argued: "The district didn't put us here. The plaintiffs put us here."

Burns called the tactic "a joke and a red herring."

In coming to his decision to broaden the case, Case found in part that there were "questions of law and fact" common to all black Pinellas students. He also cited previous rulings that courts should err on the side of granting class-action status.

He argued the lawsuit is challenging "the system as a whole ... not how that system has dealt with a particular student on an individual basis." In granting class-action status, Case noted he was not ruling on whether the plaintiffs were right.

Like many school districts across the United States, Pinellas has a significant achievement gap that can be measured in many ways.

In the Florida Comprehensive Assessment Test administered last spring, only 30 percent of Pinellas black students scored at proficient levels in reading - lower than any other minority group. Meanwhile, 63 percent of white students were proficient.

Similarly, 43 percent of black students graduated from Pinellas high schools in 2004 with a standard diploma after four years of study. The graduation rate for white students was 72 percent.

Also, black students are far more likely to be disciplined in Pinellas schools than white students. In 2003 and 2004, about 39 percent of all disciplinary referrals went to black students, who make up only 19 percent of the enrollment.

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