New Report on the School Funding Gap Highlights The Continuing Dangers of School Segregation

By Rose Lapp

Associate Editor, Vol. 24


“Good schools can’t solve structural inequality on their own, but neither can it be solved without them. Without an effective education, our children’s futures are all but guaranteed to succumb to the imposed conditions of their lineage and location.”[1]

So warns a new report by the nonprofit group EdBuild, which reported this month that majority nonwhite school districts receive $23 billion less in funding than majority white districts, despite serving the same number of students.[2] For every student enrolled, the average majority nonwhite school district receives $2,226 less than a majority white school district.[3]

The EdBuild report is especially sobering considering the increasing racial re-segregation of American public schools.[4] One of the states in which this trend is most apparent is New Jersey. On May 17, 2018, on the 64th anniversary of the ruling in Brown v. Board of Education, a group of advocacy organizations in New Jersey filed suit against the state, claiming that the state has violated the provisions of its constitution prohibiting segregation in schools.[5]

 The plaintiffs request relief in the form of a comprehensive integration plan created by the commissioner along with the possibility for children to cross municipal lines when choosing a school.[6] Suggested integration strategies include creating magnet schools whose student pool would span multiple towns, establishing larger school districts, and providing tax incentives for the creation of more diverse schools.[7]

New Jersey’s situation illustrates the problem with outlawing solely de facto segregation. The State’s constitution is unusual in that it “explicitly prohibits segregation in public schools.”[8] However, it is currently the sixth most segregated state in the country for Black students, and seventh for Latino students.[9]

After Brown was decided, the Supreme Court had to handle the complicated question of what the remedy should be. A year later, in the case known as Brown II, the Court declared that school districts had to integrate with “all deliberate speed.”[10] School districts were to have primary authority over integration plans and efforts, but courts were to have final jurisdiction. This decision left a powerful question unresolved: did Brown mandate integration, or solely end of de jure segregation?

The Court began to shape and to narrow the remedy put forth in Brown II, enforcing it case by case. In Green v. County School Board, one of the early desegregation cases, the Court adopted an expansive reading of the meaning of the Brown cases, declaring that true adherence to Brown required eliminating racial discrimination in schools “root and branch.”[11]

 However, in the decades that followed, the Court increasingly limited available remedies in segregation cases to situations in which there was a finding of de jure segregation as well as intent to discriminate.[12] The methods that could be used in integration plans were limited as well.

The New Jersey case was brought in state court.[13] This is unusual for school segregation cases, because they usually rely on the Equal Protection Clause of the Fourteenth Amendment, a matter of federal law. The decision to take advantage of the state constitution clause prohibiting racial discrimination in schools is a smart one in that it allows the plaintiffs to avoid the roadblock the Supreme Court has erected in equal protection cases: a finding of discriminatory intent, and a finding of de jure segregation.

In 1973, in Keyes v. School District No. 1, the Court emphasized the importance of demonstrating discriminator intent when building a segregation case against a state. Justice Powell disagreed. He wrote in an accompanying opinion that he would not “leave to petitioners the initial torturous effort of identifying ‘segregative acts’ and deducing ‘segregative intent.’”[14] He proposed erasing the distinction between de jure and de facto segregation, emphasizing the importance of eliminating discrimination “root and branch.”[15]

The Court made it fairly clear in later part of the twentieth century that Brown would not be read to require actual integration of public schools. Although Powell’s version of the doctrine is not the one that stuck, it would allow us to solve some of the problems we are presented with today. We are familiar with the importance of integration. Brown itself outlined in great detail the importance of integration in education, as well as the psychological and social impacts of segregated schooling for all children involved.[16] The consequences of underfunded schooling are just as clear and similarly grave.[17]

In light of the increasing re-segregation of our country and of the devastating funding gap uncovered by the EdBuild study, that interpretation should be revisited—if not by the courts, then by local government and communities. The desegregation cases aimed to provide all children with equal access to education. The EdBuild study notes that “without an effective education, our children’s futures are all but guaranteed to succumb to the imposed conditions of their lineage and location.”[18] As illustrated by the New Jersey case and by the study, we are slipping backwards from that goal. We should look past the requirements the doctrine sets out for proving desegregation claims and work toward the ultimate goal of removing the traces of segregation “root and branch.”


[1] EdBuild, $23 Billion (2019),

[2] Id.

[3] Id.

[4] Christopher Petrella, The Resegregation of America, NBC News: Think (Dec. 3, 2017), (“Racial resegregation in U.S. public schools is also deepening. A 2016 Government Accountability Office report announced: The promise of Brown v. Board of Education is unraveling”).

[5] Complaint, Latino Action Network et al. v. New Jersey (N.J. Super. Ct. May. 17, 2018).

[6] Sharon Otterman, New Jersey Law Codifies School Segregation, N.Y. Times (May 17, 2018),

[7] Id.

[8] Id.

[9] Gary Orfeld et al., UCLA Civil Rights Project, New Jersey’s Segregated Schools: Trends and Paths Forward 6 (2017),

[10] Brown v. Board of Educ., 349 U.S. 294, 301 (1955).

[11] Green v. County Sch. Bd., 391 U.S. 430, 438 (1968).

[12] See e.g. Milliken v. Bradley, 418 U.S. 717 (1974); See also Missouri v. Jenkins 515 U.S. 70 (1995).

[13] Complaint, Latino Action Network et al. v. New Jersey (N.J. Super. Ct. May. 17, 2018).

[14] Keyes v. Sch. Dist., 413 U.S. 189, 224 (1973).

[15] Id. at 221.

[16] See Brown v. Bd. Of Educ., 347 U.S. 483 (1954).

[17] Michelle Chen, How Unequal School Funding Punishes Poor Kids, The Nation (May 11, 2018),

[18] EdBuild, $23 Billion (2019),