Schools, race, and money.

• Author: Ryan, James E.

In the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities--one white, the other black--but it is a course, I predict, our people will ultimately regret. --Justice Thurgood Marshall(1) I. INTRODUCTION

It seems unfashionable these days, if not atavistic, to talk seriously about ways to increase racial integration.(2) To be sure, one still encounters attempts to spark conversations about improving race relations and promoting integration, but a strong sense of fatigue seems to accompany such attempts.(3) A distinct trend in academic and popular commentary, from the left and the right, is to seek ways to move beyond racial integration as an issue. Conservative critics of racially based policies, especially desegregation and affirmative action, argue that such policies have achieved about as much as they ever will, and that whites and minorities would be better off if the government reentered a period of "benign neglect" regarding issues of race.(4) Critics on the left seem equally ready to abandon integration as a good idea gone bad, as they either promote or excuse racial separatism.(5) The Supreme Court has joined and at times led this trend by ruling that policies benefiting African Americans are generally as impermissible as policies discriminating against them,(6) and by strongly implying that it is time for federal courts to get out of the business of school desegregation.(7)

School finance litigation fits nicely within this prevailing mood. The goal of school finance litigation, generally speaking, is to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes. Such litigation is not targeted to assist only minority students, but rather is designed to assist all "poor" students.(8) School finance litigation is thus often depicted both as a means of moving beyond race as the salient issue in education reform and as an effective way to achieve educational equity and adequacy for disadvantaged students from all racial and ethnic backgrounds.(9) Concomitantly, from its inception thirty years ago to the present, such litigation has been seen as either a supplement to or a substitute for desegregation litigation.(10)

School finance litigation began in the late 1960s, at a time when civil rights advocates were growing disillusioned with the pace and progress of desegregation. Those involved in early school finance cases believed that such litigation could accomplish a goal--improving the educational opportunities available to poor and minority students--that desegregation was only fitfully attaining.(11) Similarly, those who are currently dissatisfied with desegregation--an ecumenical and ever-growing group composed of both liberals and conservatives, blacks and whites--believe that reform efforts should be directed solely at improving the education that minority students receive, regardless of whether those students are in integrated or segregated schools.(12) More and more, one hears calls from courts, advocates, and academics alike that desegregation is not the answer, that the NAACP may have erred in pushing for integration rather than for equalization of facilities and programs, and that poor, urban, minority schools would succeed if only reform x, y, or z were adopted.(13) Most of these reforms require funding, often funding above and beyond current levels, which naturally increases the importance of school finance schemes.(14) School finance litigation, meanwhile, continues apace. Nearly twenty state supreme courts have declared their states' systems of school financing unconstitutional, with five of these decisions issued within the last two years.(15) Indeed, while desegregation is entering its twilight phase, school finance litigation shows no signs of abating.

It thus seems an appropriate time to consider school finance litigation and desegregation in tandem and to compare, before we turn our backs completely on desegregation, the relative benefits of school finance reform and desegregation. Surprisingly, such an examination has rarely occurred: Very little scholarly attention has been devoted to the relationship between school finance and desegregation or to the role that race plays in school finance reform.(16) This relative lack of attention is odd not only because each topic has separately received intense scrutiny, both academic and popular, but because the two reform efforts share a long, interwoven history as well as the overlapping goal of improving the educational opportunities and achievement of poor minority students.(17) They also share the failure to realize fully that goal and thus shoulder some of the responsibility for the continued existence of numerous schools in metropolitan areas that are both separate and unequal.(18) To understand why such schools exist in something of a pre-Plessy world, one must pay attention to both school finance litigation and school desegregation.(19)

This Article is part of a larger project that seeks to do just that: to pay attention to and explore the relationship between school finance litigation and school desegregation. I hope to show that one cannot fully understand the dynamics and limitations of school finance reform without considering the dynamics of race in general and school desegregation in particular.(20) Indeed, the central contention of this Article is that, far from moving beyond race, school finance reform has been and will continue to be hamstrung by the obstacles created by poor race relations and the Court's desegregation jurisprudence.(21)

Specifically, I describe how residential segregation and the limited reach of school desegregation have helped to create and maintain schools that are isolated not simply by race but also by socioeconomic status. The effects of racial and socioeconomic isolation, this Article suggests, cannot be adequately addressed by school finance reform, because students in schools with high concentrations of poverty need more than increased funding to improve their achievement. Increasing expenditures in racially isolated schools, moreover, cannot replicate the social benefits of racially integrated schools. By helping to isolate not simply minority students, but poor minority students, race has played a critical role in creating and maintaining schools that appear to be beyond the reach of school finance reform.

To put the argument simply: Although it is possible that school finance reform could have been a helpful supplement to desegregation, it is a poor substitute. Despite the hopes of early school finance advocates, we should not expect school finance reform to solve the problems created by the failure to desegregate many urban schools. Indeed, this Article suggests not only that school finance reform has done little to improve the academic performance of students in predominantly minority districts, but also that it may be a costly distraction from the more productive policy of racial and socioeconomic integration.

The remainder of this Article proceeds in three parts. Part II offers a brief interpretive history of school desegregation and school finance litigation. One point of this history is to place in doctrinal context the discussion of the limits of school finance reform that follows. Another is to highlight the similarities between school desegregation and school finance litigation and to describe the parallel progression (or regression) in each set of cases. Specifically, the second Part demonstrates how both school finance and school desegregation cases began as efforts to secure equal educational opportunities for disadvantaged students through tying arrangements: Desegregation sought to tie the fate of black students to that of white students, and school finance equalization sought to tie the fate of poor districts to that of wealthier ones. This original goal and the tying strategy have largely been abandoned, and both desegregation and school finance litigation now seem to operate from the implicit premise that poor and predominantly minority schools will remain isolated. Instead of challenging the isolation of such schools, both desegregation and school finance litigation have become primarily concerned with securing "adequate" resources for such schools.

Part III argues that the focus on money, at least in racially isolated school districts, may be ill-advised. It explains how race relations in general and the limits of school desegregation in particular have created and sustained schools that are primarily composed of poor minority students. Part III then describes the costs of these racially and socioeconomically isolated schools. The first cost is purely financial: Because poor students typically have greater needs, schools composed of poor students are costlier to run than schools composed of middle- and upper-income students. The second cost arises from peer influence: A growing body of research confirms that peers generally exert a strong influence on student performance and that students from lower socioeconomic backgrounds in particular suffer from being surrounded solely or primarily by students from similarly impoverished backgrounds. While the first cost of isolation can be ameliorated with increased funds, the second one cannot be. Part III accordingly suggests that the needs of racially and socioeconomically isolated schools may exceed the reach of school finance reform.

Part IV argues that alternatives to school finance litigation, which would aim to increase the racial and socioeconomic integration in metropolitan schools, should be (re)considered. Part IV begins by canvassing the still-growing body of evidence regarding racial and socioeconomic integration. I contend that this evidence indicates that integration is a more effective means of...