Christopher E. Adams, Is Economic Integration the Fourth Wave in School Finance Litigation?

• Publication year: 2007

COMMENTS

IS ECONOMIC INTEGRATION THE FOURTH WAVE IN SCHOOL FINANCE LITIGATION?

Imagine you are a low-income¹parent of a child attending Urban Elementary. Ninety percent of your child's classmates also come from low- income families. Compared with students at Suburban Elementary a few miles away, your child is significantly more likely to have an unqualified teacher and to be unable to read proficiently by third grade.²While students at Suburban discuss college, the majority of your child's highly influential peers will not graduate from high school. But you have heard of school districts that function differently. Based on research indicating that low-income students perform significantly better when surrounded by middle-class peers, some districts have begun integrating schools by income level.

Believing your child has the right to an adequate education, you wish to register her at Suburban Elementary, where you believe middle-class peers would improve her achievement. However, state officials inform you that students may only attend schools in the district in which they live.

INTRODUCTION

The above hypothetical describes a common challenge faced by students and parents at predominantly low-income urban public schools. School funding notwithstanding, economic isolation is a major obstacle to student achievement.³At the same time, a handful of socioeconomic integration efforts around the nation confirm what social science has long suggested: Low- income students perform better at majority middle-class schools. This raises the question: is there a way for students living in urban areas to receive an education in a more economically integrated setting?

Forty-nine state constitutions⁴contain an education article that guarantees children some substantive level of education.⁵While the actual level varies, in "adequacy" cases, courts have held that this affirmative right requires that a state provide funding adequate for students to receive this education.⁶

However, given the challenges presented by concentrated poverty, funding alone may not create this opportunity.⁷

In successful adequacy challenges, plaintiffs demonstrate a causal link between what a state currently provides (inputs) and the resulting "inadequate" student achievement (outputs).⁸In contrast to equity challenges, which seek equal inputs, adequacy challenges ask whether inputs are sufficient to achieve adequate student outputs.⁹Still, despite adequacy challenges' purported focus on results, plaintiffs and courts have usually confined their analysis of inputs and remedies to funding.¹⁰Adequacy plaintiffs have been largely successful¹¹ and victories have often spawned increases in education funding.¹²

While focusing on funding has proved successful in court,¹³it remains to be seen whether enhanced spending alone can foster "adequate" student performance in urban school districts.¹⁴Funding notwithstanding, schools with high concentrations of low-income students are likely to be plagued by low achievement.¹⁵

In addition to this practical limitation, adequacy challenges focusing on funding may face greater legal resistance in the future. Enhanced separation of powers concerns¹⁶and comparatively high expenditures in many urban districts¹⁷may make courts less sympathetic to urban plaintiffs. In particular, courts that have previously found inadequacy may be less willing to do so in second round adequacy suits where achievement gaps persist despite increased funding.¹⁸

If urban plaintiffs focus on achieving economic integration-in addition to or instead of increased funding--they might avoid some of these limitations while directly addressing the challenges facing low-income students. Social scientists have long observed that low-income students are more likely to succeed when surrounded by middle-class peers.¹⁹In economically integrated settings, low-income students are more likely to be taught by qualified teachers and influenced by more ambitious peers.²⁰Realizing this, a small but growing number of school districts have begun integrating schools by socioeconomic level in efforts to increase achievement.²¹

Recently, education law scholars have suggested that economic integration could be an additional goal of adequacy challenges.²²Already, a handful of urban plaintiffs have argued that low-income students have received an inadequate education while attending schools with high concentrations of low- income students and low achievement.²³While early attempts have yet to prevail with this argument, this Comment argues that future plaintiffs may be more successful.²⁴

Part I of this Comment describes the development of and interaction between desegregation and school funding litigation. Part II discusses the limitations associated with the current focus on funding in adequacy suits. Part III examines the history and development of economic integration. Part IV argues that urban plaintiffs should consider seeking economic integration as a remedy in addition to, or instead of, increased funding. Part V examines the potential for plaintiffs to achieve economic integration either (1) by including economic isolation as a relevant input in determining adequacy, or (2) as a remedy in successful adequacy suits. Part VI discusses economic integration remedies proposed thus far and argues that public school vouchers could harness market forces to encourage economic integration.²⁵

I. THE ROAD TO ADEQUACY

Legal efforts to equalize and improve educational opportunities have evolved from an original focus on desegregation to a more recent focus on school funding. Despite similar goals, the legal means have been very different in each context.

A. Desegregation

In Brown v. Board of Education, the Supreme Court ruled that "separate but equal" schools were inherently unequal and violated the Equal Protection Clause of the Fourteenth Amendment.²⁶Brown and subsequent cases made it clear that intentional or de jure racial segregation was unconstitutional and existed when present or past policies had caused segregated schools.²⁷In early cases, courts held that any such segregation within districts was impermissible and ordered districts to remedy this segregation.²⁸But as white families fled cities for suburbs, they often crossed school district lines, leaving disproportionate concentrations of African Americans in urban schools.²⁹The question soon became whether desegregation remedies could involve suburban districts as well as urban districts.

In Milliken v. Bradley (Milliken I), the Supreme Court invalidated a segregation remedy that merged the Detroit Public School System with surrounding suburban districts in an attempt to achieve racial integration.³⁰In striking down the program, the Court determined that the remedy for de jure segregation must be limited to districts responsible for the constitutional wrong.³¹Thus, the suburban districts that had not maintained segregation policies could not be forced to merge with the urban Detroit public schools to attain a greater racial balance.³²

Milliken I's practical impact was to preclude interdistrict racial desegregation as a remedy in desegregation lawsuits.³³Thus, desegregation efforts, largely successful prior to Milliken I,³⁴were limited by their inability to address discrepancies between districts.³⁵Unable to involve suburban districts, majority African-American urban districts were often left without a meaningful way to integrate.³⁶As a result, urban plaintiffs soon shifted their attention to funding.³⁷

B. School Funding Challenges

As urban and suburban districts became more racially polarized, their resource disparities took on added significance.³⁸Following Milliken I and in lieu of interdistrict racial integration, the Detroit Public School System and the State of Michigan responded by providing extra funding for predominantly black schools.³⁹This new approach was upheld as constitutional in Milliken II.⁴⁰In addition, disillusionment amongst whites and blacks with forced intra- district busing⁴¹and judicial rejection of expensive voluntary racial integration initiatives⁴²accelerated the shift toward focusing on funding.

School funding challenges are often described as three waves of litigation.⁴³The wave metaphor is best used to characterize three types of funding challenges rather than three mutually exclusive periods.⁴⁴While first wave challenges alleged that funding inequities violated equal protection under the Fourteenth Amendment of the U.S. Constitution, second and third wave challenges are based upon rights under state constitutions.

1. The First Wave: Federal Equal Protection

In the first "wave" of school finance litigation, plaintiffs alleged that state funding systems violated the Equal Protection Clause of the United States Constitution.⁴⁵For example, in Serrano v. Priest, plaintiffs challenged a California funding system in which schools were funded almost exclusively through local taxes.⁴⁶The California Supreme Court found that wealth was a suspect classification and that education was a fundamental right.⁴⁷Applying strict scrutiny,⁴⁸the court did not find a "compelling state interest" in local control, but rather, a "cruel illusion" for poor districts incapable of taxing themselves at a rate sufficient to provide equal funding.⁴⁹But just three years later, in San Antonio Independent School District v. Rodriguez, the United States Supreme Court held that education was not a fundamental constitutional right.⁵⁰This decision essentially foreclosed challenges to school funding under the Equal Protection Clause of the U.S. Constitution.⁵¹

2. The Second Wave: "Equity" Under State Constitutions

School finance plaintiffs quickly turned their attention to equal protection claims under state constitutions.⁵²In this "second wave," plaintiffs asserted that education clauses in state constitutions, which generally guarantee some substantive level of education,⁵³suggested that education was a fundamental right.⁵⁴Despite...