By Erika Wilson (click here for the PDF)
Across the country, school district boundary lines pave the way for lawful forms of racial segregation and inequality in public schools. Indeed, most racial segregation in schools occurs between school districts rather than within school districts (EdBuild, 2019). White student segregation is especially ubiquitous. In many racially diverse metropolitan areas, White students are the most segregated of all racial and ethnic groups (Frankenberg, Ee, Ayscue, & Orfield, 2019). Some are situated in “White island districts,” defined as school districts that enroll predominantly White and affluent student bodies, despite being in racially and socioeconomically diverse metropolitan areas. “Monopolizing Whiteness” examines the causes and consequences of “White island districts” and proffers solutions for addressing the inequities wrought by such districts. It makes four important contributions.
First, it provides an explanation for how and why White island districts exist. Using examples from three school districts, it theorizes that White island districts are a product of what sociologists refer to as social closure— a process of subordination whereby an in-group works to monopolize resources viewed as scarce and to exclude those not part of the in-group. It suggests that White island districts are constructed as the in-group, and the resource constructed as scarce is high-quality schools. It defines high-quality schools as those with highly qualified teachers, rigorous curricular offerings, high levels of student achievement, and well-maintained physical facilities.
Critically, the article emphasizes that scarcity of high-quality schools is constructed, not inevitable. The forced connection between housing, school funding, and school attendance creates scarcity. In particular, using local property taxes to fund schools and drawing school district boundary lines that track state-facilitated racially segregated housing patterns (Rothstein, 2015) limits the ability of all schools to obtain access to the educational inputs needed to create high-quality schools. Further, racialized income and wealth disparities (Darity et al., 2018) along with restrictive zoning results in exclusion, with many students of color unable to live in the areas that would afford them access to White island districts. As a matter of law, it is difficult to abrogate boundary lines for purposes of equalizing funding between school districts or integrating school districts. In line with the exclusion underlying the concept of social closure, White island districts often aggressively police the district boundary lines, engaging in practices such as establishing anonymous tip lines for residents to report students who are suspected of living outside the district and illegally enrolling in the district.
Second, it reframes the harms caused by school segregation. It emphasizes that while the harm caused by racial segregation in schools for students of color is deprivation of access to high-quality schools, the corresponding harm of segregation for White students is the monopolization of high-quality schools and forms of social isolation that deprives White students of valuable skills that they need to effectively function in a racially diverse democratic state. It further argues that universal access to high-quality public schools provides important democracy-enhancing functions. High-quality schools provide students with the skills necessary to effectively participate as workers in the American economy, enable them to participate as fully informed citizens in American democratic processes, and facilitate social mobility (Greenstone, M., et al., 2016).
Yet, school segregation limits access to high-quality schools to a limited cohort of students, weakening the overall human capital necessary for a successful democracy. Further, as America is a multi-racial democracy, limiting access to high-quality schools along racialized lines inhibits all students’ ability to learn how to live and work together respectfully and as equals. The net result of these two things is to undermine the economic and social stability of our multi-racial democracy.
Third, it argues that modern equal protection doctrine has developed in a way that makes it powerless to interrupt the dynamics of social closure and the harms caused by school segregation. The reasons for this are two-fold. First, conceptually the doctrine situates state-sponsored harm as a necessary trigger to finding a constitutional violation. Yet, the kinds of action that are found to constitute state-sponsored harm are narrowly construed. Plaintiffs challenging policies that result in schools being segregated must submit exacting evidence that a policy was enacted precisely because of or with the intent to create segregated schools. Under this reasoning, the residential sorting patterns that form around school district boundary lines are not considered the product of state action and are therefore beyond the court’s remedial purview. Second, the Supreme Court narrowly defined the injury caused by racial segregation in schools. The Court in Brown v. Board of Education framed the harms of segregation solely from the perspective of the ways in which state-sponsored segregation harms Black students, with no mention of how racial segregation impacts White students, or the overall effects of segregation on the entire populace. Thus, the equal protection doctrine does not recognize monopolization of high-quality schools or impairment of the American democracy as harms that the Constitution can remedy.
Finally, given the shortcomings of modern equal protection doctrine, the article argues that there is merit in looking to antitrust law for conceptual guidance. Without meaning to take on any of the competition fetishization of modern antitrust doctrine, or the so-called “consumer welfare” framework, the article uses the essential facilities framework that has developed in interpreting the Sherman Act solely to illustrate what a legal framework looks like that could appropriately recognize and address the process and harms of social closure.
The essential facilities framework imposes upon a market participant a duty to share when that market participant, through anti-competitive means, exercises monopolistic control over a facility that is indispensable for competition in a relevant product market. Critically, in the context of White island districts, housing is the primary anti-competitive means through which White island districts are able to monopolize high-quality schools. Stated differently, school district boundary lines overlay with neighborhoods that are marred by the residue of restrictive covenants, redlining, exclusionary zoning, and a racial wealth gap that effectively limits non-White entry into neighborhoods with higher-priced homes. Because school district boundary lines are used to determine the local tax base for purposes of school funding and student assignment, they allow the educational inputs needed to create high-quality schools to be hoarded by higher-wealth predominately White districts. The boundary lines, while ostensibly race-neutral, therefore permit historical racial subordination in housing to restrict access to high-quality schools to a small cohort of White residents in racially diverse metropolitan areas.
The essential facilities framework thus is an apt one to apply to the problem of White island districts because it recognizes the harms of a small, powerful group restricting access to facilities that all participants in a given social process need in order to participate fully. It does not require any showing of intent, and it treats mandatory sharing as a solution to the imbalances caused by resource hoarding. If high-quality schools are situated as an essential piece of public infrastructure (an essential facility for democracy, one might say), White island districts can then be seen to monopolize high-quality schools, to the detriment of neighboring racially diverse districts within the relevant product market, the metropolitan area.
Because the framework focuses on the systemic harm of monopolizing an essential facility, it can conceptualize the broader democracy-related harms caused by White island districts in ways that the current equal protection doctrine cannot. The insights gleaned from analyzing the problem of White island districts through the lens of the essential facilities framework might make us think about using education clauses in state constitutions to make duty to share arguments, to consider how the Fair Housing Act disparate impact rule might be used as an avenue for addressing school segregation, it might also serve as a guide for legislators considering how to structure school district boundary lines, and most significantly, change the way we conceptualize and discuss the harms of White student segregation in racially diverse metropolitan areas. ▀
Erika Wilson (wilsonek@email.unc.edu) is a Professor of Law, Wade Edwards Distinguished Scholar, and Thomas Willis Lambeth Distinguished Chair in Public Policy at the University of North Carolina at Chapel Hill.
Resources
Darity, W., Jr., Hamiltin, D., Paul, M., Aja, A., Price, A., Moore, A., & Chiopris, C. (2018, April). What We Get Wrong About Closing the Racial Wealth Gap, The Samuel DuBois Center On Social Equity. https://socialequity.duke.edu/portfolio-item/what-we-get-wrong-about-closing-the-racial-wealth-gap/
Fault Lines: America’s most segregating school district borders. EdBuild. (2020, January). http://edbuild.org/content/fault-lines.
Frankenberg, E., Ee, J., Ayscue, J. B., & Orfield, G. (2019, May 10). Harming our Common Future: America’s Segregated Schools 65 Years after Brown. The Civil Rights Project/ Proyecto Derechos Civiles. https://perma.cc/NV2M-4CNE.
Rothstein, R. The Racial Achievement Gap, Segregated Schools, and Segregated Neighborhoods: A Constitutional Insult. Race Soc Probl 7, 21–30 (2015).
Greenstone, M., Looney, A., Patashnik, J., Yu, and M., & Project, T. H. (2016, November 18). Thirteen economic facts about social mobility and the role of Education. Brookings. https://www.brookings.edu/research/thirteen-economic-facts-about-social-mobility-and-the-role-of-education/.
