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Excerpted from Poverty & Race, Volume 32, No.2 (April – July 2023)
Racial segregation and unequal school funding persist at alarming levels. The percentage of intensely segregated schools serving students of color has increased in recent decades, more than tripling since the late 1980s. The gap between what students need and what they receive has, likewise, increased in many states over the last decade and a half. These trends perversely intersect to hit some students with a double disadvantage. School districts serving predominantly low-income students and students of color operate on thousands of dollars less per pupil than their wealthier, white peers, widening existing achievement gaps for these students.
While there is plenty of blame to go around, the Supreme Court has made matters worse. In two seminal cases in the early 1970s, San Antonio ISD v. Rodriguez and Milliken v. Bradley, the Court gave the ideological lynchpin holding educational inequality together—localism—its seal of approval. Without bothering to seriously engage education history, the Court assumed that local control is the historical foundation of public education. The Court simply proclaimed that, “[n]o single tradition in public education is more deeply rooted than local control over the operation of schools.” Then, with no empirical support, the Court reasoned that locally financed education and autonomous school districts are indispensable to local control. Thus, no matter how vast the racial segregation or funding inequality between districts, the federal constitution was incapable of reaching it. Half a century later, the localism myth is so pervasive that it goes virtually unnoticed.
The Court’s basic holding in 1973 in San Antonio ISD v. Rodriguez was that the U.S. Constitution does not protect a fundamental right to equal school funding, but policy, more than doctrine, explained the Court’s holding. The Court found that remedying funding inequality would undermine local control. “Local control,” the Court wrote, “is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.” According to the Court, “local control means . . . the freedom to devote more money to the education of one’s children [and] . . . determin[e] how those local tax dollars will be spent.” The Court posited that a larger state role was problematic: “plac[ing] more of the financial responsibility in the hands of the State” may “result in a comparable lessening of desired local autonomy.”
The Court tried to buttress its logic with a history lesson, simply stating that local education funding in Texas dated back to 1883. That policy, according to the Court, is the longstanding conventional wisdom in Texas, the educational community, and “virtually every other State” too. The practical effect of localism—inequality—was simply an unavoidable, incidental consequence of pursuing this important goal. It was enough, the Court lamented, that states recognized their “shortcomings and ha[ve] persistently endeavored—not without some success—to” do better.
One year later in Milliken v. Bradley, the Court leveraged Rodriguez’s premise to do something more aggressive. Whereas the plaintiffs in Rodriguez had asked the Court to recognize a new right to education, the Milliken plaintiffs simply asked the Court to enforce an existing desegregation right. The plaintiffs had proven that both local and state officials had intentionally segregated schools in Detroit. The plaintiffs also demonstrated that the only effective remedy for that segregation was integration across school district lines. The inter-district remedy was appropriate, the lower courts explained, because districts are merely agents of the state and the state had also directly participated in segregation itself.
Reversing the lower courts and diverging from existing Supreme Court precedent required the Milliken Court to make an enormous leap beyond Rodriguez. In Rodriguez, the Court simply deferred to Texas’ policy judgment that financing education at the local level was desirable. The state’s judgment did not, in the Court’s opinion, involve any nefarious motive. But in Milliken, the lower courts had found that the state had engaged in a constitutional violation. Thus, limiting the desegregation remedy for that violation required the Court to sever local districts from the state and afford local districts their own normative weight and interest independent of those of the state.
The Court made that shift in three parts. First, the Court in Milliken elevated local school districts to a preeminent value. That elevation was obvious when the Court wrote:
[T]he notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.
Second, the Court conceptualized the districts as detached from the state and each other. Each district, the Court emphasized, had its own independent corporate body, interests, and student bodies. The only seeming connection between them was geographic proximity. Conspicuously absent was any reference to the state or its creation of a statewide system of education through school districts.
Third, the Court argued that one district’s malfeasance—or the state’s for that matter—could not justify intruding into the operations of another district. Each district has its own unique systems and practices, all of which are worthy of respect. The Court worried that a metropolitan-wide remedy that cut across districts would undercut existing local school finance and authority. The Court imagined a litany of unacceptable problems: the displacement of currently elected school boards, jurisdictional lines, taxing authority, long-term bonds, and curricula decisions. The Court afforded these local interests a surprisingly high level of respect, commensurate with the respect it had afforded state interests in Rodriguez.
Proceeding from these three points, the Court inverted the question before it from how best to remedy the proven constitutional violation of segregation to whether it was appropriate to impose an education remedy that involves “more than a single district.” The Court’s default assumption was that school district boundaries are sacrosanct and beyond judicial reach. Combined with Rodriguez, that also meant the freedom to hoard resources within those boundaries.
Yet, the Court reached this result without ever seriously inquiring as to districts’ legal status or how they came to be—other than they were adopted 100 years ago under neutral principles. Instead, the Court implicitly and explicitly conveyed the notion that individual districts are an inherent and normatively neutral aspect of education that do not require any justification. Had the Court dug just a little, it would have recognized that completely independent and autonomous school districts are not part of some original grand scheme for public education.
To the contrary, state constitutions have long contained provisions that assign educational responsibilities to the states, not local districts. The point, now more than two centuries old, was for states to elevate educational opportunity in communities that needed help and to build statewide systems of schools where people from different stations in life would come together for a common experience. The first state education mandate was in Massachusetts’ 1780 constitution. Over the next century, all but one state (which already had a strong statutory system) would provide for public education in its state constitution.
Local communities were, of course, vital to providing that state-based education, but local taxes and funding were a means to an end rather than an end in themselves. States authorized and relied on local taxes and funding, not because of some normative value of localism, but because property taxes were new to most citizens. Particularly in the North, state leaders believed that prevalent anti-tax sentiments might initially be best navigated at the local level. Thus, localism arose, contrary to courts’ assumptions, as an extension or delegation of states’ education duty. It is of little surprise that the modern term “school district” rarely even appears in the text of state constitutions.
The story was more sordid in the South. There, localism came into prevalence as a means to segregate and defund Black education in the late 1800s. During Reconstruction, southern states had constitutionalized states’ public education duty to ensure that all persons, including African Americans and poor whites, received an education that prepared them to participate as full citizens. It took state leadership to transition schooling from a randomly occurring phenomenon in individual communities to an expanding system of formal education. But after Reconstruction, those aiming to reduce African Americans to second-class citizenship targeted public education, understanding public education was the gateway to exercising political power. States amended their constitutions and laws to require school segregation. At the same time, they altered how they funded and managed education. Fearing that segregating school taxes and funds at the state level would draw federal intervention, state leaders sought to achieve the same practical result by moving more funding and decision-making to the local level.
While Brown v. Board declared school segregation itself unconstitutional, other related aspects of segregated schools – particularly the decentralization of school funding – continued unchecked after it. The longer those aspects remained, the more the Court accepted them as a neutral aspect of delivering public education, eventually treating them as more important than any other value in education. An important step in remedying entrenched school funding inequalities is to first recognize that they are partially rooted in the history of Jim Crow segregation. Elsewhere, they are the happenstance product of tax aversion. Either way, there is nothing normative or inherent about localized education. In short, localism is a pretext for ignoring inequality rather than a legitimate constitutional justification for it. The time has long come to interrogate and reform it.
Black, D. W. (2023). Localism, Pretext, and the Color of School Dollars. Minnesota Law Review, 107, 1415.
Black, D. W. (2020). Schoolhouse Burning: Public Education and the Assault on American Democracy. Public Affairs.
Derek Black (BLACKDW@law.sc.edu) is Professor of Law at the University of South Carolina, where he holds the Ernest F. Hollings Chair in Constitutional Law and directs the Constitutional Law Center.