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"Middle-Income Peers As Educational Resources and the Constitutional Right to Equal Access,"

by Derek W. Black May/June 2012 issue of Poverty & Race

Integrating our nation’s public schools continues to be one of the most important and daunting challenges to delivering equal education opportunities. Decades of research confirms that the socioeconomic composition of a school is one of the, if not the most, important factors in individual students’ achievement. Yet policies and realistic legal strategies supporting the expansion of voluntary desegregation are few and far between. Mandatory racial desegregation has all but run its course. Voluntary desegregation, while still possible, is subject to significant constitutional limitations that can make it difficult for school districts to devise workable plans. See, e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). School finance litigation has attempted to force states to more fairly distribute resources so as to compensate for the effects of student disadvantage and poverty concentration, but has rarely lodged direct challenges at the problem of segregation. As of late, school finance litigation has even been tepid about challenging resource inequality, conceding to the reality that the recession has emptied state coffers and undermined public services in general.

The inability to defend integration over the past two decades has allowed schools to resegregate to levels similar to those that existed when desegregation first began in earnest in the late 1960s and early 1970s. The inability to fundamentally alter the way schools are funded results in predominantly poor and minority schools routinely receiving 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.

One solution may lie in re-envisioning school finance litigation. For over a 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 socioeconomic isolation deprive students of their state constitutional right to an equal or adequate education. With the exception of an opinion by the Connecticut Supreme Court in Sheff v O’Neill, 678 A.2d 1267 (1996), this theory has yet to take firm root. Only a few advocates have even attempted to pursue integration through school finance claims. The benefit of litigating segregation through school finance is that it avoids various doctrinal limitations that exist in the federal courts. Yet current theories of desegregation through school finance would require significant expansion of current state precedent and also pose many of the same practical problems that the federal desegregation posed: inter-district desegregation, judicial capacity and judicial authority.

Integrative approaches to school finance, however, need not confront these practical limitations or require significant expansions of precedent. A careful examination of current school finance precedent indicates that a constitutional right to equal access to middle-income peers at the school district level should already exist. 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. A constitutional right to equal access to middle-income peers within individual school districts flows from four basic principles, three of which already find solid support.

The Right to Equitable and Quality Educational Opportunities, Not Just Money

Although routinely dubbed 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. Funding is relevant only because it can purchase critical inputs, such as teachers and curricula, that are necessary to offer students an equal educational opportunity or some qualitative level of education. The ultimate issue is whether students are receiving the appropriate constitutional education, which can be jeopardized through any number of state and local school policies, only one of which is financing.

Educational Responsibility at the Local Level

Constitutional duties to deliver a quality or an equal education extend to districts in addition to states. Most states bear the ultimate responsibility for educational failures, but local school districts are also responsible for supporting and delivering a constitutional education. To reason otherwise would afford districts wider constitutional latitude than states, when the primary constitutional power and duty itself is vested with the state. States are responsible for setting up an educational structure and monitoring local activities. They then delegate extensive responsibilities to school districts, including financial, staffing and implementation issues, leaving the daily and practical aspects of delivering a constitutional education to the discretion of school districts. When school districts exercise this discretion poorly, they can just as easily create inadequate and unequal educational opportunities as the state when it fails to provide sufficient funding or establish appropriate policies. In short, districts, like states, have a constitutional duty to deliver appropriate educational opportunities.

The Resource Distribution Principle

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 education opportunities without a careful and fair distribution of those resources. For instance, states and school districts with abundant funds and resources can still fail to provide equal or adequate opportunities if those funds are spent on the wrong services or distributed to the wrong places. See Abbott v. Burke, 575 A.2d 359, 377 (N.J. 1990), discussing the role of variances in how efficiently districts use their funds as a problem in determining whether money matters. Likewise, a district might have just enough resources to deliver a constitutional education but still fail to do so because it does not make the best strategic choices in deploying the resources. In effect, the state may have done its part to make a constitutional education possible, but the district takes action that inhibits the delivery of appropriate education. Even though the state might have the ultimate responsibility to correct such a district, the constitutional failure occurs at the district level and the solution is not more funding for the district, but better allocation of existing resources. Of course, it is also possible that failures occur at both the state and district level. The state might provide inadequate funds and a district might make matters worse by poorly allocating those resources. Either way, constitutional rights to education require that educational systems adhere to effective distributional mechanisms and principles.

This concept is embedded in the very language of several state constitutions. Nineteen state constitutions mandate an “efficient” education. At the most basic level, dictionary definitions of efficient offer straightforward meanings that include “performing or functioning in the best possible manner with the least waste of time and effort”; and “satisfactory and economical to use.” Courts have interpreted their constitutional language consistent with such definitions. For instance, the West Virginia Supreme Court found that the constitutional phrase “efficient” commanded that “the education system be absolutely complete, attentive to every detail, . . . [and] produce results without waste.” Pauley v. Kelly, 255 S.E.2d 859, 874 (1979). Likewise, the state must deliver a quality education “economically.” Id. at 877. This duty also encompasses local school district actions. The court noted that many other courts “have required specific actions by local boards to bring them to compliance with the constitutional mandate” and state action that failed to ensure local compliance has likewise “been declared unconstitutional.” Id. at 874. Thus, in addition to quality instruction and facilities, “state and local monitoring for waste and incompetency [are] implicit in the definition of ‘a thorough and efficient system.’” Id. at 877.

This constitutional mandate of strategic distribution even extends to states whose constitution does not explicitly mandate “efficiency.” For instance, the North Carolina Supreme Court was more prescriptive on this principle than states with “efficiency” clauses. The court indicated “‘that neither the State nor ... [the Hoke County School System] are strategically allocating the available resources to see that at-risk children have the equal opportunity to obtain a sound basic education,’” Hoke Cnty. Bd. of Educ. v. State, 599 S.E.2d 365, 388 (N.C. 2004). It then directed both the state and school districts to “conduct self-examinations of the present allocation of resources and . . . produce a rational [ ], comprehensive plan which strategically focuses available resources and funds towards meeting the needs of all children, including at-risk children [,] to obtain a sound basic education.” Id. at 389. In short, the manner in which state and local school districts allocate their resources is as important as the amount of resources they have. Thus, courts have found that their constitutions require that states and districts strategically distribute their resources in ways that minimize waste and maximize equal opportunity.

Middle-Income Peers as Educational Resources

The final conceptual step in a constitutional right to middle-income peers is not as simple as the first three. It requires a reorientation in thinking about educational resources. Legally relevant educational resources tend to be conceptualized as those things that schools can buy, develop or create that have positive impacts on educational outcomes.This conceptualization, however, 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, obvious and direct non-economic resource is a school district’s middle-income students. Common sense, as well as decades of social science, indicates that students learn not only from their teachers, but also their peers. Middle-income peers (and their parents) bring a host of experiences, outside learning and high expectations to schools that positively impact other students in their schools. In fact, 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. Students, regardless of their individual socioeconomic status or race, achieve at higher levels in predominantly middle-class schools and achieve at lower levels in predominantly poor schools. In short, while not a traditional resource that schools can buy, middle-income students are an invaluable resource that exerts significant effects on the achievement of all students.

Empirical Findings on Racially Unequal Access to Middle-Income Peers

Reconceptualizing 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, in fact, 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. While conventional wisdom may be correct in its assessment of inter-district segregation, inter-district segregation has proven largely impenetrable thus far. In any event, it does not follow that segregation within districts is not occurring or serious.

To the contrary, my recently published 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. See 53 Boston College Law Review 373 (2012) available at http://ssrn.com/abstract=2008731. A serious problem with racially unequal access to middle-income peers within districts stretched across all eleven states included in the study. Some districts were providing access that was so unequal it was shocking. In four of the states, some districts provided whites twice as much access to middle-income peers as minorities. This is the difference between whites attending a solidly middle-income school, with 70% middle-income peers, and minorities attending a solidly poor school with only 35% middle-income peers. A few districts even provided whites access that was three to five times that of minorities. The data also revealed that in several states a quarter of the districts were providing access that, although not shockingly unequal, was disparate enough to create qualitatively different experiences for white and minority students. And on the basic question of rough equality, in some states, only about half the districts provided equal access. In short, far too many school districts have student assignment policies that place minority students at educational risk in comparison to whites and thus raise serious constitutional concerns.

Interestingly, the study also uncovered 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.

Unequal Access and Achievement Gaps

Consistent with the literature, this unequal access appeared to have consequences for minority students’ academic achievement. After identifying the varying levels of equitable and inequitable access, the study analyzed whether racial inequality in access to middle-income peers corresponded with any change in the racial achievement gap. It found that, in general, those districts with the most inequitable access for minorities also had the highest achievement gaps, whereas districts that provided minorities the most equitable access had the lowest achievement gaps. Moreover, the difference in achievement gaps between these unequal and equal access districts was drastic. In seven of eleven states, the achievement gap drop between inequitable-access districts and equitable-access districts was more than 50%, cutting the achievement gap in half. And in all the remaining states but one, the drop in the achievement gap was still large. These empirical findings not only force a reorientation of how one perceives racial inequality in student assignments, but suggest that a widespread pattern of segregative student assignments and wide achievement gaps persists that would otherwise be inconsistent with a constitutional right to equal access to middle-income peers.

Conclusion

The failure of an integration movement to emerge in state courts may be more a result of perception and strategy than doctrine and reality. While not as broad as prior theories, this article’s theory offers a strategy for school integration that has strong conceptual grounds in school finance precedent. Once one understands that middle-income students are one of the many resources districts distribute, the equitable and strategic distribution of resources that school finance precedent has forced on schools and districts is directly implicated. Of course, no court has yet explicitly conceptualized middle-income students as resources, but a review of social science literature, as well as the differing academic achievement that students produce based on their exposure to middle-income peers, renders the concept undeniable. Courts already intuit this notion and heavily scrutinize and condemn the prevailing poor performance of districts with concentrated poverty. And parents already act on it, often flocking to schools based more on the socioeconomic status of the students who attend them than the characteristics of the school facility or the particular staff who teach in them. Once legal analysis catches up to reality and intuition, state constitutional education precedent will squarely apply.

Derek W. Black is a Professor at the Univ. of South Carolina School of Law. This essay is excerpted from his chapter in The Pursuit of Racial and Ethnic Equality in American Public Schools: Mendez, Brown, and Beyond (Kristi L. Bowman, Ed.) (Michigan State Univ. Press, forthcoming 2014)  blackdw@mailbox.sc.edu
 
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