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Derek W. Black

Excerpted from: Derek W. Black, Middle-income Peers as Educational Resources and the Constitutional Right to Equal Access , 53 Boston College Law Review 373-439, 373-379 (March, 2012)


Mandatory racial desegregation has almost run its course, voluntary desegregation is subject to significant constitutional limits, and school finance litigation is caught between progressive legal doctrine and empty state coffers. Unfortunately, none of these efforts has come close to reaching its full potential before experiencing a serious set-back. Schools are as racially segregated today as they were four decades ago, and predominantly poor and minority schools routinely receive thousands of dollars less per pupil than their suburban counterparts. In short, today's schools are both segregated and unequal. Given the severity of today's segregation and inequality, a racial achievement gap between whites and minorities equivalent to two years of learning by the eighth grade is not entirely surprising. What is surprising is the dearth of policy and legal solutions to the problem.

Over the last decade, scholars have called for a fourth wave of school finance litigation that would combine racial desegregation and school finance into a single movement. The idea has been that racial and/or poverty isolation deprives students of their state constitutional right to an equal or adequate education. As of yet, however, this theory has been slow to spread beyond the one court opinion that recognized it in 1996. In fact, only a handful of advocates have even attempted to pursue integration through school finance claims. Although the incorporation of integration into state-based concepts of equity or adequacy could potentially resolve some of the limitations desegregation experienced in federal court, the strategy may attempt to prove too much. Including racial diversity within the concept of an equal or adequate education could effectively mean that schools across the board must be integrated. Even if the right was merely to a diverse environment rather than the racial balance typically pursued in federal desegregation, an affirmative right to diversity under state constitutions would have a wider reach than federal desegregation, as an affirmative right would apply to all racial isolation regardless of its legal cause or geographic location. The practical result of an affirmative right to diversity or a prohibition on poverty isolation would be significant desegregation across school district lines. In these respects, state-based integration claims would challenge the institutional authority and capacity of state courts at a level approaching that of federal desegregation. These realities, although not a legitimate basis alone for courts to reject the claims, may have dissuaded integration theories in school finance litigation.

Not all integrative approaches to school finance, however, would necessarily confront these practical limitations or require significant expansions of precedent. In particular, this Article articulates a constitutional right to equal access to middle-income peers that operates most directly at the school district level and carries with it significant conceptual precedent. The theory is not that students can compel a state or school district to create racially or socioeconomically integrated environments where they would not otherwise exist, but that past school finance decisions provide a basis on which to constrain the distribution of middle-income students within individual school districts. This constitutional right flows from four basic principles, three of which already find solid support. First, although routinely referred to as school finance litigation because additional funding has been the primary remedy litigants have requested, the core holdings in school finance litigation establish constitutional guarantees of equal and quality educational opportunity that are about far more than money. In fact, the constitutional violation in most cases is not funding inequity itself, but the substantive and outcome-based inequities that can result from funding inequity. Second, constitutional duties to deliver a quality or an equal education extend to districts in addition to states. To reason otherwise would afford districts wider constitutional latitude than states, even though the primary constitutional power and duty itself is vested with the state. Third, educational constitutional duties include an obligation of strategic and equitable resource distribution. Courts have recognized that an abundance of resources will not guarantee equitable or quality educational opportunities without a careful and fair distribution of those resources. This principle is embodied in the very language of some states' educational clauses.

The final conceptual step in a constitutional right to middle-income peers, however, is not as simple as the first three. It requires a reorientation in thinking about educational resources and segregation. Legally relevant educational resources tend to be conceptualized as those things schools can buy, develop, or create that have positive impacts on educational outcomes. This conceptualization is overly narrow and ignores reality. Schools enjoy any number of important resources that they do not and cannot buy, such as the communities, public services, partnerships, and private industries surrounding them that support the educational environment. The more important and direct noneconomic resource, however, is a school district's middle-income students. Common sense and social science indicate that students learn not only from their teachers, but also from their peers. Middle-income peers (and their parents), in particular, bring a host of experiences, outside learning, and high expectations to schools that positively impact other students in their schools. The percentage of middle income students in a school can be more important to the educational achievement of all students in that school than any other resource or factor. Students, regardless of their individual socioeconomic status or race, achieve at higher levels in predominantly middle class schools and at lower levels in predominantly poor schools. In short, although not a traditional resource that schools can buy, middle-income students are an invaluable resource that exerts significant influence on the achievement of all students.

Yet, reorienting the concept of educational resources to include middle-income students, by itself, is not enough. Courts must also reorient their perception of poverty and racial segregation. Poverty and racial segregation today are perceived as inevitable, beyond the control of states and districts, and natural. Of course, it is true that school districts have almost no control over the total number of middle-income and poor students in their districts, but they have complete control over the assignment of those middle-income and poor students who are enrolled in their districts. Conventional wisdom over the past two decades, however, has been to ignore this basic fact and the problem of segregation within districts because the most extreme and extensive segregation exists between districts. Although conventional wisdom may be correct in its assessment of inter-district segregation, it does not follow that segregation within districts is not occurring or serious.

To the contrary, this Article's empirical study of access to middle-income peers reveals that many school districts have the capacity to expose all students to middle-income environments, but instead deny minorities of the experience. Interestingly, the study also uncovers a pattern of many other school districts doing the opposite by providing minority students equal access to middle-income environments. The fact that this inequality of access is occurring within the confines of individual school districts, but not others, demonstrates that the current racially and socioeconomically isolated nature of many districts is not inevitable. Rather, districts are making choices about how they distribute valuable resources--too often to the disadvantage of minorities.

Consistent with the literature, this unequal access to middle class peers also appears to have consequences for minority students' academic achievement. After identifying the varying levels of equitable and inequitable access, this Article takes the next step and analyzes whether racial inequality in access to middle-income peers correlates with any change in the racial achievement gap. It finds that, in general, those districts with the most inequitable access for minorities also have the largest achievement gaps, whereas districts that provide minorities the most equitable access have the smallest achievement gaps. Thus, this empirical evidence not only forces a reorientation of how one perceives racial inequality in student assignments, but suggests that a widespread pattern of segregative student assignments and large achievement gaps persists that would otherwise be inconsistent with a constitutional right to equal access to middle-income peers.

This Article proceeds in three parts. Part I recounts past efforts to assert segregation-related claims within the context of school finance litigation and precedent, as well as the scholarly theories supporting and urging the expansion of these efforts. Part I concludes by distinguishing these past efforts from this Article's theory and explaining the legal and practical advantages of pursuing intra-district claims of unequal access to middle-income peers.

Part II offers a full and detailed explanation of the legal precedent and social science evidence that would establish a constitutional right to equal access to middle-income peers.

Part III describes the methodology and results of this Article's empirical analysis of racially unequal access to middle-income peers and its correlation with changes in the racial achievement gap. The Article concludes by urging that courts and advocates take the relatively small step of ensuring equal treatment in regard to one of school districts' most vital resources.