News report misstates law on free lunch data and student assignment

An article in this morning’s News and Observer misleads readers on the current state of the law in regard to the use of data from the federal free and reduced lunch program in Wake County’s student assignment plan.  The article’s conclusion that this data cannot be released for the purposes of student assignment for confidentiality reasons is based merely on an e-mail from a program analyst in the Department of Agriculture.

Thankfully, the final decisions on critical legal issues like these are not made by program analysts from the Department of Agriculture.  Both the Department of Education and the Department of Justice have held up Wake County’s old socioeconomic diversity plan as a national model and no federal agency has questioned legality of the use of the data for more than a decade.  Over 70 school districts use socioeconomic data to assign students and none have been successfully challenged legally.

It should be clarified that there is no suggestion that the use of socioeconomic data in student assignment is unconstitutional.  That possibility is foreclosed by the Supreme Court’s previous decisions.  Unlike race, socioeconomic status is not a protected class under the Constitution.  Student assignment plans that consider socioeconomic status do not take race into account and are therefore constitutional.  Thus, even if this e-mail is correct, socioeconomic status may still be used in student assignment by using census data.  However, this is more cumbersome for administrators than using free and reduced lunch status.

The confidentiality question is more complicated and will need to be worked out by the Department of Education, the Department of Justice, and the Department of Agriculture who are clearly not on the same page.  The e-mail in question concerns the use of free and reduced lunch data for individuals as a breach of confidentiality and then extends this logic to the neighborhood level.  However, it is unclear how they reached the conclusion that entire neighborhoods are entitled to confidentiality of aggregate data that is publicly available.  It is also unclear why they are reaching this conclusion at this point in time after the policy was in effect for so many years.  Contrary to the article’s suggestions, an e-mail from a bureaucrat does not answer any of these complex legal questions.