Achieving Racial Equal Educational Opportunity Through School Finance Litigation

Minority plaintiffs have primarily pursued two types of legal arguments to attain equal educational opportunities: school desegregation and school finance. The goal of school desegregation litigation is to remove the barriers that prevent minority students from attending public schools with white students. The goal of school finance litigation is "to increase the amount and equalize the distribution of academic opportunities and performance of students disadvantaged by existing finance schemes." Legal scholars have extensively studied the relationship between court cases and school desegregation. The general consensus is that this litigation strategy has failed to achieve the goal of desegregating public schools. Indeed, more than fifty years after the Supreme Court held in Brown v. Board of Education that de jure discrimination of public schools violates the Equal Protection Clause, many minority students are educated in extreme racial isolation. For example, during the 2000-2001 school year, one-sixth of all black students were enrolled in schools that were 99-100% minority. One-ninth of all Latino students attended such schools during this period. Several scholars have attributed this racial isolation in public schools to the Supreme Court's distinction between de jure segregation, which is unconstitutional, and de facto segregation, which is permissible under the Equal Protection Clause. An important decision in this regard is Milliken v. Bradley, which prohibits the federal judiciary from mandating an inter-district remedy in the absence of evidence of intentional racial discrimination by suburban school districts. As a result of Milliken, racial residential segregation across established school district lines has remained a primary cause of racial segregation in schooling in many parts of the country. The inability to achieve racial desegregation makes school finance litigation a vital option for minority students. Several legal scholars who have examined this relationship assert that school districts with high concentrations of black students systematically receive less funding for schools than districts with low concentrations of black students. They place the blame for this phenomenon on San Antonio Independent School District v. Rodriguez, a 1973 decision that held that states may use local property taxation to fund public schools without violating the Equal Protection Clause. These analysts claim that because districts with high concentrations of black students are also high-poverty, they are not able to raise as much revenue as their counterparts with low concentrations of black students. Implicit in their assumptions is the belief that taxable property wealth is highly associated with family income and poverty levels. This Article seeks to provide a more nuanced understanding of the relationship between racial school funding levels and court decisions. It also examines the viability of the legal arguments that may be used to provide high-black-concentration school districts with equitable funding. Specifically, we disagree with the common understanding that most high-black-concentration school districts are harmed by a reliance on local property taxation. Instead, we assert that high-black-concentration districts are frequently disadvantaged by race-neutral state distribution policies that tend to favor low-black-concentration school districts. We further claim that to eliminate racial disparities in educational opportunities and outcomes, state-aid application policies may have to adopt race-conscious approaches that go beyond merely providing funding equality. Part I provides an overview of the "separate but equal" era. We explain the strategies that state and local officials used to guarantee that "colored" schools received unequal funding. We also provide an overview of the legal foundations of the "separate but equal" era, such as the infamous Plessy v. Ferguson case. Further, we discuss the primary equality standards that courts used to determine the constitutionality of racially segregated schools: nominal equality, racial neutrality, and real equality. The second Part of this Article analyzes school finance litigation from the 1960s to the Rodriguez decision. In this Part, we discuss how school-funding litigation during this period sought to build on the Equal Protection Clause jurisprudence of Brown and other desegregation cases. We also explain how one federal district court in Hobson v. Hansen developed a "separate but equal" doctrine for de facto segregated public schools that was similar to the real equality standard at the end of the "separate but equal" era. Finally, this Part also explains how the Rodriguez Court adopted the racial neutrality standard of the "separate but equal" era to permit racial funding disparities caused by local property taxation. Part III examines the impact of Rodriguez on high-black-concentration school districts. Specifically, we examine the accuracy of the claim that Rodriguez created racial funding disparities by giving states carte blanche to discriminate through local property taxation. We observe that the situation is much more complex than is generally understood. We further explain that little attention has been paid to disparities caused by state distribution policies. In some instances, states have created funding disparities between high- and low-black concentration school districts through race-neutral cost adjustments embedded in school finance formulas. Moreover, the third Part explains that even if high-black-concentration school districts were to receive equality in terms of per-pupil expenditures, these districts might not be guaranteed equal educational opportunity.The fourth Part of this article observes that the equality standard adopted at the end of the "separate but equal" era and in the Hobson case may actually be better suited than the present racial neutrality standard to address the need of high-black-concentration school districts. This Part also discusses the legal strategies that plaintiffs from high-black-concentration school districts may use to replicate this standard. In particular, we examine whether the failure to consider racial factors in funding formulas may violate state education clauses. We also examine the viability of substantive due process challenges in states that require students to pass high-stakes tests in order to receive a diploma. Specifically, we explain that plaintiffs may be able to demonstrate that such testing is fundamentally unfair if the state has failed to provide high-black-concentration districts with the resources they would need to pass these tests. Finally, Part V discusses the impact of Parents Involved in Community Schools v. Seattle School District No. 1, which examined the constitutionality of voluntary, race-conscious student assignment plans. We pay particular attention to the concurring opinion of Justice Anthony Kennedy, who cast the swing vote in the Court's 5-4 decision. We conclude that a majority of the Court could be persuaded that race-conscious funding measures do not violate the Equal Protection Clause.