What happens when we get so used to a long injustice that we can’t see it anymore?  In a fine new collection of articles, University of North Carolina law professor, Osamudia James explains how blind we have all become to the role of racial segregation for producing and sustaining educational inequality: “Inequality in the American school system is increasingly framed as a function of class… K-12 schools as well as institutions of higher education embrace ‘race-neutral’ policies that consider socioeconomic status rather than racial or ethnic identity. Racial segregation, if acknowledged, is no longer understood as the product of intentional policies that trap and isolate students of color and their families in underserved communities and school districts. Rather, racial concentration and isolation are (seen as) products of ‘individual choices.’… (S)chool finance disparities are presented as simply the unfortunate outcome of the more limited resources of communities of color.”

The spring-summer 2023 edition of Poverty & Race, a publication of the Poverty & Race Research Action Council forces us to look at racial segregation itself as a primary cause of the unequal funding of public education. The journal’s guest editor, University of South Carolina constitutional law professor and author of Schoolhouse Burning, Derek Black has pulled together commentary from a dozen academic and legal experts:

• to examine the persistent injustice as racial segregation drives the underfunding of urban public schools,
• to examine the legal history since Brown v. Board of Education that has allowed school segregation to grow since the 1960s, and
• to explore the possibilities and limits for helping more public school students of all races enjoy the benefits of learning together.

While the conventional wisdom among non-experts is that the U.S. Supreme Court banned school segregation in 1954, in its decision in Brown v. Board of Education, Ann Owens, a professor of sociology at the University of Southern California presents the truth: “Racial/ethnic segregation between school districts in the U.S is so high that in 2021, 90 percent of students of color attended school in just 15 percent of districts… That is, the vast majority of the nation’s more than 13,000 school districts serve only a trivial number of non-white students.” “Segregation between school districts is particularly consequential because districts administer school funding, one key resource for children’s educational success… (E)qual funding is not sufficient to produce equal outcomes, given the large racial/ethic and income inequalities that exist in neighborhoods…. School funding must be progressive… (T)he higher costs of adequately educating a single higher-needs student are exacerbated by segregation between school districts and the concentration of many higher-needs students in some districts.”

A panel of experts who recently documented the correlation between housing segregation and school finance disparities—Bruce Baker, school finance expert at the University of Miami; Preston Green, Professor of Educational Leadership and Law at the University of Connecticut’s Neag School; and Matthew DiCarlo the Senior Research Fellow at the Albert Shanker Institute—report their research on the “connection between decades of housing discrimination and deficits in school funding and student outcomes” across seven metro areas—Baltimore, Oakland, Birmingham, Hartford, Kansas City, San Antonio, and the Twin Cities.  Here is a brief summary of their findings: “Across all seven metro areas, 90 percent of majority-Black/Latino districts spend below estimated adequate levels, compared with 12 percent of majority-white districts…. 85 percent of majority-Black/Latino districts are both inadequately funded and score below the U.S. average on math and reading tests, compared with six percent of majority-white districts.” Only one of the roughly 200 school districts with funding above the level of adequate and with test scores above average serves a majority Black/Latino school population.  “The trends in these seven metro areas are part of a national pattern.”

What are the primary causes of these disparities in school districts’ funding? There are persistent and measurable differences in residential property values and average incomes of the tax paying adults in the community: “(W)ealth disparities by race and ethnicity… play out predictably in ‘second order’ effects on school funding.” Segregated communities are forced to “tax themselves disproportionately….” Because these communities have lower taxing capacity, even though residents’ tax themselves at higher levels, frequently they generate less revenue to fund their schools. Finally, despite their lagging taxing capacity, “racially isolated, majority-Black districts face substantially higher per-pupil costs to achieve the same academic outcomes as their majority-white, more affluent neighbors.”

In their essays, Derek Black and David Hinojosa explore the U.S. Supreme Court decisions that have undermined our society’s capacity to enforce the mandate of the 1954 decision.  The Earl Warren Supreme Court gave way to the Warren Burger Supreme Court, and Black summarizes the effect: “In two seminal cases in the early 1970s, San Antonio ISD v. Rodriguez and Milliken v. Bradley, the Court gave the ideological lynchpin holding educational inequality together—localism—its seal of approval…. (T)he Court assumed that local control is the historical foundation of public education… The Court’s basic holding in 1973 in San Antonio ISD v. Rodriguez was that the U.S. Constitution does not protect a fundamental right to equal school funding…. One year later in Milliken v. Bradley, the Court leveraged Rodriguez’s premise to do something more aggressive. Whereas the plaintiffs in Rodriguez had asked the Court to recognize a new right to education, the Milliken plaintiffs simply asked the Court to enforce an existing desegregation right… The plaintiffs had proven that both local and state officials had intentionally segregated schools in Detroit.  The plaintiffs also demonstrated that the only effective remedy for that segregation was integration across school district lines…  (T)he Court inverted the question before it from how best to remedy the proven constitutional violation of segregation to whether it was appropriate to impose an education remedy that involves ‘more than a single district.” The Court’s default assumption was that school district boundaries are sacrosanct and beyond judicial reach.”

David Hinojosa, counsel with the Lawyers’ Committee for Civil Rights Under Law, reviews two cases that have caused more recent worry. He believes these cases are not such serious impediments to school districts seeking to desegregate as we all might have feared.  The first is the 2007 Parents Involved case in which Justice John Roberts’ majority decision declared school districts may not explicitly use race itself as a factor to justify voluntary school integration programs among their schools. Hinojosa quotes the Parents Involved decision itself: “(S)school boards may pursue and ‘adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”  For example, school districts may carefully select sites for their schools or re-draw attendance zones in consideration of general demographics like family income of neighborhoods as proxies for race.  On this summer’s rejection by the Roberts Court of affirmative action in the case of Students for Fair Admissions (SFFA) v. Harvard and SFFA v. UNC, Hinojosa is clear: “The ruling does not implicate or prohibit race-neutral measures enacted by universities, much less K-12 schools that help ensure greater diversity in their classrooms and campuses.”

While we recognize that Rodriguez and Milliken continue to prevent aggressive programs aimed at alleviating racial segregation, what more modest steps can be taken by school districts to make their public schools increasingly diverse?  Noting that some states provide additional funding for districts serving concentrations of children living in poverty, and recognizing that interdistrict public school transfer programs may reduce any school district’s concentration of Black or Hispanic students or or the number of poor students in any one school, Philip Tegler a civil rights attorney and Executive Director of the Poverty & Race Research Action Council, emphasizes that school districts should at least not face financial penalties for taking steps to create economic and racial integration: “Interdistrict school integration programs—and even traditional open enrollment systems—face potential financial disincentives for both the sending and receiving districts. Ideally, the receiving (low-need) school district should have an incentive for welcoming new low-income students into their system and the sending (high-need) school district should not bear too heavy a financial penalty for participating… Avoiding financial incentives for maintaining high poverty rates in individual schools within a district can be achieved by avoiding bright-line thresholds for enhanced funding, and by holding schools harmless for reducing poverty concentration over time.”  Tegler adds: “Beyond eliminating potential adverse financial incentives, what kinds of positive state funding incentives might actively encourage diverse districts to promote racial and economic integration between schools?… The existence of funding structures that encourage and perpetuate segregation are well known to advocates of fair housing, but not generally acknowledged by advocates for educational equity.”

David Sciarra, recently retired executive director of the Education Law Center, pushes us all to broaden our thinking: “For too long, civil and education rights lawyers, scholars, and advocates for equal educational opportunity have fragmented into separate camps: those pressing for school desegregation and those pressing for equity in segregated schools… I offer a bold path forward to remedy the entrenched school inequity and school segregation that continues to undermine equal educational opportunity for our nation’s children. This way forward rests upon a ‘unified and expansive’ definition of the right to education enshrined in each state’s constitution that encompasses both equitable funding and educating children in diverse schools and learning environments.”  Sciarra declares that legislators must be pressed to fulfill their constitutional obligations by enacting “cost-based, weighted student funding,” “universal , high-quality early education,” and “needs-based financing for safe and adequate school buildings.” He lists additional steps toward achieving diverse schools: “redrawing district boundaries and school attendance zones,” “implementing or expanding inter-district transfer programs,” prohibiting districts from breaking off from other districts for the purpose of segregation   and banning the establishment of segregated charter schools, and encouraging school districts to establish “multi-district magnet and specialized schools.”

This post is merely a superficial summary of an important new publication intended to challenge what has become a stagnant and inadequate conversation about racial injustice and subsequent inadequate school funding in the most vulnerable public schools across urban America.  Derek Black and the experts he has assembled challenge us all to consider and address entrenched racial segregation in public schools across the United States. Before we can take concrete steps to remedy a complex and deeply rooted problem, we must all become aware that a change is needed.