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Excerpted from Poverty & Race, Volume 32, No.2 (April – July 2023)
Every state constitution affirmatively mandates its legislature to maintain and support a system of elementary and secondary schools open to all children. This means that the states, not local school boards or the federal government, are legally obligated to effectuate the right to a free public education in the United States. And that public education must, at a minimum, guarantee every child equal educational opportunity.
As we near the quarter mark of the 21st century, two interrelated state policies continue to deprive politically marginalized and vulnerable students of their constitutional right to equal educational opportunity. The first are state policies for funding public education that consign low-income students and students of color to severely underfunded and under-resourced schools. In most states, the money available for schools to spend on teachers, support staff, facilities, and other essential resources is dependent on antiquated policies that tie funding levels to local property taxes. The result is immense resource disparities in schools that mirror the vast differences in wealth – and political clout – from one community to another. The second are state policies for determining local district boundaries that isolate students into racially and socioeconomically segregated schools across the country. These policies typically create hard, fixed boundaries for school attendance that mirror municipal and county borders. States also delegate to districts the power to establish attendance zones among neighborhoods within their borders. These restrictive policies, coupled with dramatic demographic shifts within the states, have resulted in districts and schools that are more deeply segregated by poverty and race today than they were 50 years ago.
School segregation has its roots in entrenched patterns of residential segregation and community disinvestment attributable to racist economic and housing policies at all levels of government. But state education policies have locked in school segregation as a defining feature of the current landscape of contemporary American public education. The harm to generations of children from inequitable school funding and intense student segregation cannot be overstated. It is a profound national tragedy. Black and Latino students and low-income students continue to be deprived of their legal entitlement to education through compulsory attendance in schools lacking the funding and resources required for academic success. And all students – poor, affluent, Black, Latino, Native, Asian, and white – are deprived of the opportunity for an education in diverse learning environments necessary to prepare them for the multiracial and multicultural society they will enter upon graduation.
The path forward: equity and diversity
For too long, civil and education rights lawyers, scholars, and advocates for equal educational opportunity have fragmented into separate camps: those pressing for school desegregation and those pressing for equity in segregated schools. In my new report, “Equity and Diversity: Defining the Right to Education for the 21st Century,” I offer a bold path forward to remedy the entrenched school inequity and school segregation that continues to undermine equal educational opportunity for our nation’s children. This way forward rests upon a “unified and expansive” definition of the right to education enshrined in each state’s constitution that encompasses both equitable funding and educating children in diverse schools and learning environments. Both are not peripheral, but central to the delivery of a constitutional education.
In this framework, equity and diversity have specific definitions. Equity means low-income students and students of color receive all the funding resources needed to achieve now, even though they attend schools segregated by poverty and race. Diversity means all students are afforded the opportunity to learn in schools with peers from differing races and socioeconomic backgrounds to prepare them for our rapidly evolving, multiracial, and multicultural society and democracy.
The way forward also embraces the stark political reality that effectuating the right to equitable and diverse schools demands a singular focus on the unit of government legally responsible for education: the states. While Congress and school boards have important roles, state legislatures and governors are affirmatively obligated under their constitutions to maintain and support the state’s public schools. It is state law, policy, and enforcement practices that either advance or impede a child’s access to equal educational opportunity.
Building blocks for equitable and diverse schools
State lawmakers, through their finance and assignment policies, perpetuate the persistence of inequitable, segregated schooling. But just as they cause school underfunding and segregation, state elected officials can end it. They can do so by putting in place the “building blocks” essential to support equitable and diverse school systems. Legislatures must enact three policy reforms for equity in districts and schools segregated by poverty and race:
- Cost-based, weighted student funding;
- Universal, high-quality early education; and
- Needs-based financing for safe and adequate school buildings.
Additionally, four state policy reforms comprise the building blocks for diverse schools for all students:
- Redrawing district boundaries and school attendance zones;
- Implementing or expanding inter-district transfer programs;
- Prohibiting segregative district secession and charter schools; and
- Utilizing multi-district magnet and specialized schools.
We know from three decades of “education reform” that academic and accountability standards alone cannot – and will not – deliver equitable and diverse schools, nor will changes in local school governance. Advancing equity and diversity is entirely dependent on the states fulfilling their obligation to construct the building blocks essential for a constitutional education.
A new movement for equitable and diverse schools
Students in school today must be prepared for citizenship and participation in a multiracial, multicultural democracy and society. By 2050, over half of all American citizens will be people of color. This demands the states to educate their children in schools that are both equitable and diverse. It is time to set aside the debates over whether desegregation or equity is the right way to improve public education. We can no longer afford this time-worn either/or. It is time to build a 21st Century movement to put an end to inequitable school funding and school segregation in the states. This must be a clear-eyed call to action, grounded in the stark reality of the challenge in confronting the fault lines of race and class that have fueled stubborn resistance in the states for decades.
The new movement not only requires breaking down past divides among advocates fighting for equitable funding and integration. It demands holding state lawmakers and governors to account. It also demands that organizers, parents, lawyers, researchers, educators, unions, and taxpayers unite to build multifaceted campaigns for reform, state by state, sustained for a long-haul historical project, not a one-off policy reform or episodic activism. We must start now. Children have only one opportunity for an education. The pursuit of both equity and diversity is essential to make meaningful progress in the historical quest to deliver a “constitutional education” to all students, especially for low-income students and students of color consigned to intensely segregated public schools across the nation. As the New Jersey Supreme Court has observed, “the lessons of the history of the struggle to bring our children a constitutional education render it essential that their interests remain prominent, paramount, and fully protected.”
Sciarra, D. (2023). Equity and Diversity: Defining the Right to Education for the 21st Century. Education Law Center.
Sciarra, D. & Dingerson, L. (2021). From Courthouse to Statehouse – And Back Again: The Role of Litigation in School Funding Reform. Education Law Center.
David Sciarra (firstname.lastname@example.org) served as Executive Director of the Education Law Center from 1996 to 2023, and was lead counsel for New Jersey’s urban students in the landmark Abbott v. Burke school finance litigation.