The Walter Fields Anti-Levels Litigation Lacks Legal Merit— And It’s Time for a Change on the BOE

For years now, attorney and Black Parents Workshop head Walter Fields has been litigating against academic levels in the South Orange-Maplewood School District with the U.S. Department of Education, and more recently in federal court, on the basis that higher level honors and AP classes have fewer black students in them. 

There are values arguments to make for and against Mr. Fields’ anti-levels position; I will turn to those values issues later. 

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Given binding Supreme Court precedent, though, including the Parents Involved v. Seattle School District and Meredith v. Jefferson County cases in 2007, which struck down two race-based school integration plans as unconstitutional, there is no good legal basis for the assertion in the Fields litigation that academic levels in South Orange and Maplewood violate the law.

It is constitutional and otherwise legal, no matter what Mr. Fields may wish were the case, for an educational institution such as a school district or university to employ criteria for evaluating academic skill, such as the SAT, or an admission test for advanced or AP classes, and to have such advanced courses. 

What about disparate impact?  In the employment sector, in which tests of academic skill are not facially related to work as, say, a boiler room operator, the Supreme Court in the Griggs v. Duke Power case said that academic skill tests with a disparate impact by race need to be validated with reference to performance in a particular job.  I agree.

In education, in which tests of academic skill measure a central component of performance in school, the law treats testing and levels differently.  The SAT and academic tests for advanced courses are legally fine, whatever their merits as policy, and likewise with advanced courses themselves.  Here again, I believe the Court has the law right.

What about the policy issues associated with academic levels, and with the deleveling Mr. Fields seeks in his litigation?

As a BOE member for three terms and President in my final year, I tried hard to move South Orange and Maplewood away from what I thought was an unproductive debate over whether students with differing academic skills should be compelled to be in the same classroom—deleveling—or compelled to be in different classrooms—levels.

The point, I believed then and believe now, was to empower students and families to choose.  Levels can have value, especially in courses for older students with complex material, as can, in other courses, an absence of levels—and so, definitely, does choice.

Yes, there are complex and sensitive issues associated with choice.  Guiding choice through teacher and administrative recommendations seems to me entirely appropriate; students need to understand and be warned that taking courses above a recommended level is subject to real risks of a lower grade. 

All the same, choice, and the empowerment attendant upon it, need to be the lodestar.  Empowerment cannot be conferred by the South Orange-Maplewood school district or any other school system; it must be a matter of responsibility taken, and consequences accepted, by students and by families.

During my time as President, I was proud to work with my Board colleagues, administration, teachers, and community members to develop and pass an Access and Equity policy that embodied the principle of choice of academic programs, including choice of levels.  The motivation for this policy shift was an ethical commitment to the principles it embodied, not pressure to produce a legal remedy to Mr. Fields’ suit, since no such remedy was warranted. Now, making that policy work right, not being distracted by Mr. Fields’ legally meritless claims against leveling, should be our focus.

 Sympathy and empathy for teachers and for administrators, especially the Principal of Columbia High School, until recently Elizabeth Aaron, who have the difficult job of striking the delicate balance between guiding choice and making it effective is warranted.  What is not warranted is the hectoring and legally baseless animus toward Ms. Aaron evident in Mr. Fields’ demand for her removal.  Also not warranted is the hectoring animus toward administrators in general evinced by Mr. Fields’ ally on the Board, Ms. Wright.  The combination of Mr. Fields and Ms. Wright together is an unfortunate one for South Orange and Maplewood.

I respect the principle that Board members should not discuss personnel issues, including the factors that did or not lead to a particular Board decision, and I express no opinion on whether Mr. Fields’ litigation and demands, or any information or misinformation generated by Ms. Wright as part of her general animus toward administrators, played any role whatsoever in Ms. Aaron’s transfer to the traditionally unsought position of Principal on Special Assignment. 

I do strongly express to my former colleagues: I seriously hope, knowing that you can and should say nothing, that neither Mr. Fields’ legally meritless anti-levels litigation nor Ms. Wright’s mischief-making played any role whatsoever in Ms. Aaron’s removal.  I also seriously hope that good faith efforts by Ms. Aaron, and by teachers, to make guidance to students and respect for student choice work played no role whatsoever in her removal.

Finally, I strongly express to my former constituents, the people of South Orange and Maplewood: If you are concerned, as I am, about the summary Saturday night-removal of Ms. Aaron, for which the Board is accountable, and about Mr. Fields and Ms. Wright and their demagogic politics of destruction, as I am, I urge to talk to your friends and neighbors, and to act.

In my judgment, the problem with enabling Mr. Fields on the current Board goes much deeper than Ms. Wright.  SOMA board members, including current Board President Elizabeth Baker, who themselves support deleveling have, I believe, enabled Mr. Fields’ anti-levels litigation, despite in some cases, such as Ms. Baker’s, being targets of Mr. Fields’ proclivity for unwarranted personal attacks, because their own policy position overlaps in part with Mr. Fields’ agenda. 

Now, a mea culpa: I also enabled Mr. Fields.  To become President in 2015, I sought and received Ms. Wright’s support.  I’m very glad to have served as President, and to have conceived and spearheaded the Access and Equity policy.  But I’m also sorry that getting there made me an enabler of Ms. Wright, and by extension of Mr. Fields.

As a Board member and then as President, I yearned for a Board majority that would not rely on Ms. Wright and that be willing to say clearly to a Superintendent, interim or otherwise, that Mr. Fields’ legal case against levels is baseless, and that the district should act accordingly.  I never got that majority, which is on me. But that too many of my former colleagues continue to enable Mr. Fields is on them.  The Board’s enabling Mr. Fields through failing to instruct our Superintendent and counsel to stand up to his clearly meritless anti-levels litigation needs to end. 

I very much hope to be supporting a Board candidate, or candidates, this year who will clearly state that Mr. Fields’ anti-levels litigation lacks legal merit, that Ms. Wright’s politics of personal destruction are unacceptable, that Ms. Aaron’s removal should not have occurred, and that we need to stop debating levels in favor of making the Access and Equity policy work right.

My time for running for office is done.  But I am highly interested in nurturing and supporting Board candidates, who will, I hope, be part of a future integrated South Orange-Maplewood Board of Education majority that moves us to a future in which we become, as we should be, a nationally recognized beacon of choice and empowerment for all. 

Along with the mea culpa I’ve given, I have great pride in my Board service, and fond memories of my campaigns.  For me, it was one of the peak experiences of my life to run and serve—and I hope that for at least one reader of this piece, it will be also.  You have my email—I’d be happy to talk with you! 

Wayne Eastman holds a J.D. from Harvard Law School, and is a Professor at Rutgers Business School (weastman@business.rutgers.edu), where he teaches business law and business ethics. He served on the South Orange-Maplewood Board of Education from 2006-2016 and was President from 2015-2016.  The opinions in this piece are his own and do not represent a position of the Board.