Healthy schools: a major front in the fight for environmental justice.

• Author: Neal, Daria E.

1. INTRODUCTION II. HOUSING DISCRIMINATION SET THE FOUNDATION FOR TOXIC SCHOOLS A. Toxic Neighborhoods Lead to Toxic Schools III. HEALTH IMPACTS ON CHILDREN MUST BE A FACTOR IN SITING AND MAINTENANCE POLICIES A. Use of State Education Mandates as a Tool to Achieve Environmentally Healthy School Facilities B. San Antonio Independent School District v. Rodriquez Triggered State Constitutional Challenges to Property Tax Funding Schemes C. Demonstrating Disparate Facility Conditions Heightens Success When Seeking to Enforce Equality and Adequacy Standards D. School Siting." Ensuring New Schools Have a Healthy Start E. EPA Can Play an Effective Role By Aggressively Pursuing Enforcement Actions Against Regulated Facilities Near Schools F. Federal Action is Appropriate and Required IV. POLICY RECOMMENDATIONS V. CONCLUSION. I. INTRODUCTION

   Public schools are under constant attack for "failing" America's children. Whether it is criticism of teachers, parents, or administrators, there seems to be a general malaise when it comes to the future of public schools. This can be attributed, in part, to the physical conditions of our schools. Many schools are in desperate need of repair, with lead paint, asbestos, pesticides, and poor ventilation systems prevalent in the nation's schools. Additionally, in an effort to build "better" schools in urban areas, new schools are often sited near polluting industrial facilities. Both scenarios negatively impact the health of children.

   Environmental justice, at its very heart, is about the right of all people to live in environmentally healthy communities. Children spend the majority of their formative years in schools. If the schools are in poor condition or located near toxic facilities or on contaminated sites, the health and well being of their students are in jeopardy. A growing number of families are opting to send their children to private school for quality facilities as well as academics. Those that cannot afford the alternative are left to send their children to public schools that can and will make them sick. Because attending school is legally mandated, federal and state governments have a duty to ensure the environmental conditions in and surrounding schools do not negatively impact the health of students.

   The environmental justice movement addresses a broad range of issues including transportation equity, fair housing, zoning regulations, and community planning. In the middle of each area of concern lies a school. Schools are located where people live, near roads, and near businesses, both industrial and commercial. The goal of environmental justice is to ensure equal protection of all people from environmental hazards and eliminate the disproportionate burden low-income and minority communities presently bear. We must look at the environmental health of our schools and develop aggressive and creative ways to ensure our children are sent to learn in facilities that do not threaten their lives. Furthermore, in recognition of continued systemic housing segregation, guaranteeing clean schools will have a ripple effect on the surrounding community.

   The issue of dilapidated schools has become increasingly persuasive in school equity and school adequacy litigation. In this Article, equity and adequacy litigation will be analyzed for their effectiveness as tools for environmental justice. Although schools throughout the country suffer from unsatisfactory environmental conditions, according to a 1996 General Accounting Office report the largest number of such schools are in cities "serving 50 percent or more minority or 70 percent or more poor students." (l) Furthermore:

   [O]ver 38 percent of schools in central cities reported at least one inadequate building, 9 percentage points higher than schools located in the urban fringe of large cities. Furthermore, 67 percent of central city schools (with almost 10 million students) reported at least one building feature needing repair or replacement compared with the overall average of 59 percent. (2) II. HOUSING DISCRIMINATION SET THE FOUNDATION FOR TOXIC SCHOOLS

   The United States' history of systemic de jure and de _facto housing segregation, racist land use decisions, and discriminatory mortgage lending practices is long and ever-present today. Limited housing opportunities for African Americans resulted in the creation of predominately African American communities located in the most environmentally toxic locations. Many African American communities are located in areas zoned for mixed residential/industrial/commercial use, while predominately white communities tend to be zoned strictly for residential use. (3) The result is African Americans live in neighborhoods surrounded by pollution creating industries.

   For example, in 1936, Newtown, a community in Gainesville, Georgia, suffered a devastating tornado that destroyed over 600 homes. (4) Approximately 300 "Negro families" were left homeless. (5) Through federal Reconstruction Finance Corporation loans, seventy-five housing units were constructed near the railroad tracks and made available to "colored purchasers." (6) The twenty-eight by twenty-two foot houses were considerably smaller than the houses built in "white new town." (7) The new construction effectively established a separate and inferior community for African Americans. Over the years, the area surrounding the black community was zoned for commercial and industrial use. Today, the small community is nearly locked in by polluting industries, including a Cargill plant and a Ralston Purina Plant. Residents often leave their homes to discover their cars and community park covered with yellow grain dust from the plants. (8) The health impacts have been devastating. Long time residents observe an increase in asthma in children and an overall increase in cancer among the older residents. (9) The story of Newtown is not unique. Systemic housing discrimination and segregation has pushed blacks into the least desirable areas throughout the United States.

   In December 2006, an Associated Press analysis of Census data, Environmental Protection Agency (EPA) risk scores, and a U.S. research study found "[m]inorities are 79 percent more likely than whites to live in neighborhoods where industrial pollution is suspected of posing the greatest health danger." (10) The analysis showed that in nineteen states, "blacks were more than twice as likely as whites to live in neighborhoods where air pollution seems to pose the greatest health danger." (11) The average income in the highest risk neighborhoods was $18,806--more than $3000 less than the nationwide average income. (12)

   Of the forty-four states with hazardous waste facilities, forty of them "have disproportionately high percentages of people of color in circular host neighborhoods within 3 kilometers of the facilities." (13) Professor Bullard and his colleagues report that "[s]tates with the 10 largest differences in people of color percentages between host neighborhoods and non-host areas include (in descending order by the size of the differences): Michigan (66% vs. 19%), Nevada (79% vs. 33%), Kentucky (51% vs. 10%), Illinois (68% vs. 31%), Alabama (66% vs. 31%), Tennessee (44% vs. 20%), Washington (53% vs. 20%), Kansas (47% vs. 16%), Arkansas (52% vs. 21%), and California (81% vs. 51%)." (14)

   1. Toxic Neighborhoods Lead to Toxic Schools

   Given the undisputable fact that minority communities are likely to be subjected to industrial pollution, schools located in these communities and their students are also subjected to such hazards. Approximately 80% of kindergarten through twelfth grade childrens' time is spent in school. (15) Although such a high percentage of their time is spent at school, "there is still no entity responsible for protecting children's health in the school environment." (16) Nevertheless, school districts persist in sending children to schools constructed on contaminated land and near environmentally hazardous facilities.

   In Houston, Texas, Cesar Chavez High School is a large state-of-the-art facility serving approximately 3000 children. (17) Yet, three petrochemical plants are located within a quarter mile of the school. (18) In northeast Washington, D.C., River Terrace Elementary School is located just blocks from a major electrical power plant. In Los Angeles, California, Belmont Learning Complex, a state-of-the-art school intended to serve mostly Latino students, was constructed atop of a site that housed numerous hazardous chemicals. (19) In 1998, Barnet School, located in Vermont, closed due to an odor problem that was traced to severe rodent infestation. (20) Approximately 800 rodents were discovered in the school walls. (21) In July 2007, the Washington Post reported in its series on D.C. public schools that sixty-four year old Davis Elementary School suffered from peeling paint and improper ventilation. (22) In 2001, more than 600,000 students, largely African Americans and other children of color, in Massachusetts, New York, New Jersey, Michigan, and California were attending nearly 1200 public schools located within a haft mile of federal Superfund or state-identified contaminated sites. (23)

   Many school systems continue to turn a blind eye to protecting children's health in the school environment. After Hurricane Katrina hit the U.S. Gulf Coast, more than 30% of New Orleans schoolyards tested two years after the hurricane were found to be contaminated with arsenic in amounts two to three times the levels requiring cleanup under federal and state law. (24) Arsenic is a toxic "substance that can cause cancer, neurological damage, and other chronic health problems, and is particularly harmful to children." (25) Despite schools being in session, neither the Louisiana Department of Environmental Quality nor the U.S. EPA had taken measures to protect students. (26) In fact, "both agencies claim that the high arsenic levels existed before the...