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Excerpted from: Erika K. Wilson, The New White Flight, 14 Duke Journal of Constitutional Law & Public Policy 233 (Spring, 2019) (237 Footnotes) (Full Document)


ErikaKWilsonPublic schools today remain deeply segregated by race. In a 2017 interview, New York Times Magazine author Nikkole Hannah Jones provided a sobering but prescient analysis of why modern school segregation persists: white parents want it that way. Jones's analysis challenges conventional explanations for the persistence of school segregation. The dominant narrative is that school segregation is an unfortunate but inevitable byproduct of residential segregation. Because students are typically assigned to attend a school near the neighborhood in which they live, the narrative suggests that patterns of residential racial segregation also exist in public schools. Courts reinforce this narrative by emphasizing the link between residential segregation and school segregation in cases challenging racial segregation in schools. As such, most scholars theorize that addressing residential segregation, particularly severing the ties between residence and school assignment, will go a long way towards ameliorating modern day school segregation.

Although residential segregation is undoubtedly a significant part of the reason schools are segregated, framing the issue as an inevitable byproduct of housing segregation obscures the very important role played by white parental choice. Failure to accurately frame the narrative leads to remedies that insufficiently address the problem. Thus, Jones's assertion that white parental choice is the root cause of modern school segregation deserves critical analysis.

To that end, since Brown v. Board of Education, whites as a collective have assiduously avoided having their children attend desegregated schools. In the aftermath of Brown, school choice policies that allowed parents to choose rather than be assigned to a school were one of the preeminent tools of white resistance to school desegregation. The passage of time has not changed this pattern. Empirical research reveals that white parents consistently choose schools based on race, preferring schools that have fewer students of color and a majority of white students. Research shows that the preference exists even when school quality is controlled for, meaning that whites tend to choose predominately white schools even when presented with the choice of a more integrated school that is of good academic quality. Recent patterns of white flight from high quality public schools with large Asian-American student bodies underscores the notion that white flight might be driven by race rather than school quality.

The collective desire of white parents to avoid schools with significant numbers of students of color is so well entrenched that recruiting white students, or preventing white flight, is a centerpiece of most modern school desegregation efforts. Making matters worse, the Supreme Court's school desegregation jurisprudence insulates from judicial scrutiny segregation in public schools that is deemed to be the result of private individual choice. Consequently, school segregation and inequality that is attributed to white parental choice is scarcely regulated by courts. However, the Supreme Court has suggested that such choice may be regulated indirectly through non-race conscious but race cognizant policies.

Despite the connection between white parental choice and school segregation, greater choice continues to be interjected into the school assignment process. In many states, school choice assignment policies are proliferating substantially. Although the term school-choice encompasses a broad array of school assignment policies, school choice policies that allow parents greater choice in the type of public school they will attend, particularly charter schools, are gaining the most traction.

Charter schools are schools that are publicly funded, privately run, and subject to fewer state regulations. The proliferation of charter schools is often posited as a potential solution for segregated and unequal schools. Yet given the proclivity of whites as a collective to choose predominately white schools, interjecting more choice into school assignment policies raises questions about the normative value of increased school choice, and in some instances the legality. Indeed, in some parts of the country that are embracing school choice, white charter school enclaves are forming. This article defines white charter school enclaves to mean charter schools that are greater than fifty percent white, located in school districts that are less than thirty percent white. Nationwide there are currently “115 charters at which the percentage of white students is at least 20 points higher than at any of the traditional public schools in the districts where they are located.”

Much of the scholarship in the legal literature examining school segregation focuses on the role played by structural devices. Less attention is paid to the role that parental choice and the lack of regulation surrounding parental choice plays. Although a handful of scholarship has addressed the role that parental choice plays in patterns of school segregation, much of that scholarship focuses on the limits of choice for parents of color that causes school segregation rather than the way white parents exercise choice. This article fills that void in the legal literature. It makes two important contributions.

First, it documents the way in which school choice is being used as a vehicle to allow whites as a collective to satisfy their aggregate preference for predominately white schools. It provides concrete examples of school choice policies that are leading to the formation of white charter school enclaves. Second, it makes both constitutional and normative arguments for regulating parental choice that leads to the creation of white charter school enclaves. The article proceeds as follows:

Part I provides an overview of the rise of school choice policies. It historicizes school choice by analyzing the racialized roots of school choice. It makes the claim that inherit in any right to choose is a right to exclude, and that within the context of school choice, that right to exclude is often delineated by race.

Part II demonstrates that white students are the most racially segregated and isolated group of students. It argues that whites as a collective consistently choose segregated schools. It provides empirical support for that claim and then introduces theories that potentially explain why whites choose segregated schools.

Part III analyzes the ways in which school choice through charter proliferation is serving as a conduit for whites to exercise white flight without residential mobility. It specifically outlines and traces the rise of predominately white charter school enclaves located within racially diverse school districts.

Part IV examines constitutional and normative rationales for regulating the aggregate white choice that leads to the creation of white charter school enclaves.

Part V concludes.


[. . .]


The proliferation of school choice policies is changing the landscape of racial segregation in public schools. School choice once offered promise for producing integrated schools by disconnecting residence from school assignment such that patterned residential segregation would not be replicated in the public schools. Yet, rather than ameliorating racial segregation in schools, some school choice policies are making patterns of racial segregation in public schools worse. This is the case because whites as a collective tend to choose segregated, predominately white schools. School choice policies, particularly the proliferation of charter schools, provide an avenue for whites to satisfy their collective preference for segregated schools.

As this Article demonstrates, the proliferation of school choice policies (particularly charter schools) allows the creation of white charter school enclaves that serve as a conduit to white flight without residential mobility. In that respect, white charter school enclaves are like the white segregation academies that emerged in the aftermath of Brown. The segregationist history of American public education is thus repeating itself. But we are not powerless against these patterns of racial segregation. As this article sets forth, a constitutional and normative path towards regulating choice exists and should be explored.

Thomas Willis Lambeth Distinguished Chair in Public Policy, Associate Professor of Law, University of North Carolina at Chapel Hill. B.A. University of Southern California;