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  • (Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy to Secondary School Students and Preferencing Racially-Literate Applicants to Higher Education

    In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Supreme Court declared that it will continue to scrutinize race-conscious educational decisions to insure that they are narrowly-tailored to serve a compelling governmental interest. This Article develops a strategy for enhancing racial diversity at all levels of American public education that can survive that rigorous constitutional scrutiny. The Article shows that school districts may prove that assigning a meaningful number of racially diverse students to their secondary schools is narrowly-tailored to achieve their compelling educational interest in teaching racial literacy. The constitutionality of this race-conscious educational strategy cannot be undermined by the availability of race-neutral student assignment plans; those race-neutral plans are not tailored to meet the precise educational objective of teaching racial literacy. This Article also demonstrates that an institution of higher learning that values racial literacy in its enrolled students may constitutionally prefer applicants who have a measurably strong foundation in racial literacy by virtue of having attended a racially-diverse secondary school. Those students would receive preferential admissions treatment not because of their race, but because of their acquisition of racial literacy. Accordingly, the compelling educational outcome of racial literacy can provide a constitutional foundation for enhancing racial diversity not only in secondary school, but in colleges and universities as well.

  • A History of Hollow Promises: How Choice Juisprudence Fails to Achieve Educational Equality

    This Article combines analysis of case law at state and federal levels as well as federal educational policy in an effort to formulate a framework for addressing educational inequalities, of which the achievement gap is only one result. As individual rights concepts control the discourse of equal educational opportunity, community injury continues to be ignored. Because educational policy aimed at ending educational inequities is governed by equal protection analysis and guided by court decisions, limitations in legal opinions drive such policies. The lack of attention to community harm in law and educational policy limits the ability of education legal reforms and education policy initiatives to address the scope of the problem of educational inequalities. This essay contextualizes the issue to demonstrate how policies have reinforced a dominant narrative about race that is counter to the goal of ending educational disparities and continues to harm individuals and communities of color even as they try to respond to these issues.

  • Urban Legends, Desegregation and School Finance: Did Kansas City Really Prove That Money Doesn’t Matter?

    This Article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how KCMSD desegregation plan has been cited as proof by conservatives that no correlation exists between educational outcomes and academic performance. The final section uses national and state level data on school funding and student outcomes to determine whether their assertions are correct.

  • Reading, Writing, and Reparations: Systemic Reform of Public Schools as a Matter of Justice

    This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain its tradition of segregation. Part III places that discrimination in historic context, examining Virginia's long history of denying educational opportunities to African Americans. This section demonstrates that the state's intransigence in the face of the Brown decision was but one incident in a centuries-old chain of state-imposed constraints on education for Blacks. Starting with proscriptions against literacy for slaves, and moving to legislation designed to disfranchise Blacks after emancipation, among other means, Virginia used and abused public education to maintain an oppressive social order in which African Americans would perpetually be at the bottom. As a result, Part IV concludes that the Brown Fund Act falls far short of remedying the scope of the state's wrongdoing. In the face of, quite literally, centuries of government abuse of its authority to purposefully exclude its citizens, reparations-that is, a remedy designed to rectify a profound injustice that reverberates today-are necessary. This Part then briefly touches upon the varied forms reparative remedies might take to mend the breach.

  • Challenging the Bounds of Education Litigation: Castaneda V. Regents and Daniel V. California

    This Note argues that by combining the normative suasion of educational finance litigation with the political imperatives manifested in affirmative action law and practice, those who seek to improve the quality of secondary education and expand access to higher education would likely effect greater change than they would working independently. Under the appropriate political and legal circumstances, access to public higher education ought to be treated as something akin to a fundamental right, the unequal distribution of which constitutes a violation of equal protection for students of color and for economically disadvantaged students. Using the Castaneda and Daniel lawsuits to probe the rigid contours of school "finance" reform litigation and the overly formal conceptions of race-based preferences that pervade discourse about affirmative action, the author argues that these cases provide promising examples of the ways in which advocates for diversity in higher education may capitalize on the political will of the people and the structure of the state system of public education to advance an agenda that simultaneously improves secondary education while diversifying institutions of higher education. Although this Note concentrates on two cases from California, it fundamentally concerns what advocacy for educational equity will look like throughout the country for the next generation of students of color and of economically disadvantaged students. These cases, though born of the particularities of California's state education system, do not embrace strategies unique to California. Rather they are harbingers of a promising nationwide trend.

  • Locked in Inequality: The Persistence of Discrimination

    In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained from doing so by high switching costs. Second, contemporary antidiscrimination law in the U.S. may be particularly ill equipped to deal with locked-in discrimination. U.S. equal protection jurisprudence only prohibits discrimination that can be traced to an individual or group of individuals who intend to discriminate, and does not address locked-in discrimination that persists even after institutional actors no longer intend to discriminate.

  • The State Judiciary’s Role in Fulfilling Brown’s Promise

    After a brief overview of school finance litigation since Rodriguez and school desegregation cases since Brown, Part I argues that the "adequacy" model of reform addresses many of the underlying concerns of the equity model without sharing its methodological and strategic shortcomings. Part II focuses in more detail on Campaign for Fiscal Equity v. State ("CFE"). Part III argues that education reform that is implemented after a finding that a state has violated a state constitutional duty should: (1) equalize funding to the extent necessary to guarantee certain minimum necessary inputs such as qualified teachers, small class sizes, adequate physical infrastructure, and other instrumentalities of learning; and (2) take seriously Brown's proclamation that racial separation is inherently unequal. Part IV encourages courts to structure education reform remedies that: (1) envision a firm but limited judicial role to protect the constitutional rights of minorities from majoritarian failures without exceeding the courts' limited expertise and authority; (2) define adequacy specifically enough to minimize inter-branch tension and provide political cover for legislators who must make difficult decisions to implement education reform; and (3) prioritize collaborative decision-making involving courts, legislatures, state agencies, local school boards, unions, parents, local businesses, and civic organizations, partially through a process analogous to negotiated rulemaking in the administrative law context. Part V borrows several elements from environmental law and proposes a method for implementing education reform that makes state legislatures ultimately accountable for educational outcomes. Finally, Part VI explores some of the daunting challenges faced by education reform efforts and suggests that rigid ex ante injunctions may fail to account for the wide range of obstacles faced by school districts.

  • Putting Black Kids into a Trick Bag: Anatomizing the Inner-City Public School Reform

    Part I of this Article discusses the history of Brown, and the legal and political barriers that prevented the nation from fulfilling Brown's promise. Part II, will examine the phenomenon of White flight, which resulted from the efforts to implement the court-ordered desegregation of public schools. The political and economic effects of White flight on school reform efforts will also be examined. Part III will provide the reader with possible explanations for why school desegregation failed. The author will argue that the unexpected complexity of the task of desegregation, the lack of a unified direction among the judiciary, and local political entities, as well as beliefs about the effects that school desegregation would have on White children, prevented desegregation efforts from being successful. Part IV will analyze the various alternatives to court-ordered school desegregation that developed as a result to the legal, social and political barriers, which prevented court-ordered desegregation from taking place. Part V briefly surveys the school-reform efforts of four cities. Part VI discusses the role of school finance in relation to student achievement. The property tax, as the major source of funding for public schools, will be examined, as well as the effects of funding disparities between affluent and poor school districts. Part VII follows with a discussion of the use of testing as a method of school reform.

  • Separate But Unequal: The Status of America’s Public Schools

    Transcript of the symposium, which took place at the University of Michigan Law School on Saturday, February 9, 2002 in Hutchins Hall.

  • Conscious Use of Race as a Voluntary Means to Educational Ends in Elementary and Secondary Education: A Legal Argument Derived From Recent Judicial Decisions

    This paper provides an in-depth examination of the ten recent court decisions concerning race-based student selection processes. As these cases will illustrate, school districts face increasing demands to justify any race-conscious selection process. The significance of meeting the demands and the implications for what appears to be an evolving legal theory is national in scope and broad in application. Some have even argued that some of these cases mark a departure away from the Court's thinking in Brown v. the Board of Education. It should also be noted that each of the cases mentioned above occurred in the context of some form of school choice, which heightens the significance of the research and the implications of its findings.