Introduction 642 I. How Schools are Segregated 648 A. An Overview of the New York City Public School System 648 B. A Snapshot of School Segregation in New York City 651 C. The Impact of School Segregation 652 D. Residential Segregation as a Possible, but Not Sufficient, Explanation for Segregation 656 E. Previous Integration Efforts and Public Discourse Surrounding Integration 662 II. The Legal Landscape: Brown, Davis, and Everything in Between 665 A. Brown v. Board of Education and Washington v. Davis: Two Guiding Precedents 665 B. Alternative Precedent 667 C. The Use of Racial Classifications in Rezoning 670 D. An Analogy to Racial Gerrymandering 671 III. Constitutional Solutions, Statutory Fixes, and Incentivizing Socioeconomic Integration 673 A. Equal Protection Clause Argument 674 B. Implementing a Statutory Remedy 677 C. Incentivizing Socioeconomic Integration 677 Conclusion 680 INTRODUCTION
In 2017, Public School (P.S.) 199 and P.S. 191 of District 3 were located (1) on Manhattan's Upper West Side, on West 70th Street and West 62nd Street, respectively. Serving kindergarten through fifth grade, P.S. 199 was an award-winning school where students' test scores were almost two times higher than the citywide average. (2) For the 2017-2018 school year, only 10% of the students received free lunch, (3) and the student body was 64% white and 19% black and Latino. (4) The prior year, the school's Parent Teacher Association ("PTA") raised $777,000. (5) In stark contrast stood P.S. 191, which was categorized by the state as a "persistently dangerous school." (6) During the 2017-2018 school year, the school served kindergarten through eighth grade, (7) students' test scores fell considerably below the city average, (8) and approximately 73% of the students received free lunch. (9) Many of them resided in the Amsterdam Houses, a nearby public housing community. (10) The student body during that same school year was 70% black and Latino, (11) and in the previous year the PTA raised only $27,000. (12) These schools, although separated by only a few blocks, were worlds apart in terms of quality, resources, and student achievement. (13)
Given the disparity between wealthy, mostly white schools and poorer, mostly black and Latino schools, parents face a choice: Do they send their children to their zoned schools, despite their unpropitious reputation, or do they shop around for a charter or private school option for their children in hopes of obtaining for them a more promising academic experience? This question is racially-loaded, as evident in the stories of two mothers--Alie Stumpf and Saratu Ghartey--who were forced to prioritize their children's academics and social experience over their racial identities when deciding which school their children will attend. (14) Stumpf, a white mother, made the decision to send her daughter to their neighborhood school, although she will be a racial minority in the classroom. (15) In making this decision, Stumpf considered not only her child's experience, but also that of other students. (16) She said that "school integration will only be achieved when white families like mine commit to integrated schools in their own neighborhoods." (17) Further, Stumpf acknowledged that the "rocks" her white daughter may face in attending a less privileged school will not feel as sharp as they would to students of minority identities, such as Ghartey's child. (18)
Ghartey, a mother in a black family, came to a different conclusion than Stumpf in deciding whether to send her child to their neighborhood school or seek an academically stronger option. (19) Ghartey's story involves a search for a pre-K program, not an elementary school. (20) However, the conflict exists in either context. Ghartey is less enthusiastic about "tak[ing] a chance on [these] work-in-progress schools," noting that when "raising a little black boy in America" there is "little room for error." (21) Ghartey participated in a pre-K lottery program through which applicants rank the available pre-K schools in order of preference and are assigned to a school. (22) She opted to rank two reputable schools as her son's top two choices, but was assigned to her fifth choice, a less desirable option in their own district of Bedford-Stuyvesant. (23) Ultimately, Ghartey decided to enroll her son in a school in lower Manhattan. (24) She noted in her accounts of this experience that because she and her son live in Brooklyn, they will need to revisit this school choice process once he is ready for kindergarten. (25) Thus, inequality in school programs and resources impacts not only students' individual academic experiences, but also their parents' choice of residence and the way in which parents seek to balance the value of their children's potential for academic success with their exposure to diversity. (26)
The differences in public schools in New York City highlight the problematic reality that the New York City school system is segregated along economic and racial lines. One highly regarded study, known as the UCLA Study, noted that New York City, despite being one of the most diverse cities in the United States, has one of the most racially and socioeconomically segregated school systems in the country. (27) In 2010, nineteen of the public school system's thirty-two community school districts maintained a student population that was, at most, 10% white, even though white students made up 14% of the public school population in the 2009-2010 school year. (28) As of the 2016-2017 school year, about 30.7% of New York City public schools are "racially representative." (29) Further, about 70% of schools are "economically stratified." (30) This means that the school's economic need, as measured by the Economic Need Index, is more than ten percentage points from the citywide average. (31) These demographics illustrate that New York City's public schools do not reflect the City's, and the school system's, highly diverse population. (32)
School segregation has a significant negative impact on students within the New York City public school system. (33) Students in primarily poor, black and Latino schools achieve magnitudes less than students in wealthy, white schools. (34) There are also various psychological harms associated with segregated schools, such as students' feelings of inferiority within their greater communities, which limit their potential for professional and economic success. (35) Although school segregation is widely regarded as problematic, there is little to no constitutional basis to combat the effects of de facto segregation--segregation resulting from societal disparity--as opposed to de jure segregation--segregation enshrined in law. (36) This is derived from two illustrious Supreme Court cases: Brown v. Board of Education (37) and Washington v. Davis. (38) In Brown, the Supreme Court invalidated laws that allowed for racial discrimination in public schools, thus holding that de jure segregation of public schools is unconstitutional. (39) Yet, as previously described, it is clear that school segregation still exists in a variety of ways de facto, for which Brown does not provide recourse. Courts are reluctant to treat instances of de facto segregation with the same scrutiny as they treat cases of de jure segregation. This position is grounded in the Court's decision in Washington v. Davis, which requires that a plaintiff provide a finding of discriminatory purpose in order to prove that a de facto segregated school system violates the Constitution. (40) Namely, it must be established that there is intentional discrimination at play. (41) New York City's school segregation problem falls between these two Supreme Court decisions, without the protection of either. On one hand, the alleged discrimination resulting from segregated schools is not a product of legislation. But in the absence of a law explicitly mandating the segregation, it is difficult to prove that the schools are intentionally segregated.
The extent to which New York City school zones are drawn with the intent to divide socioeconomic and racial populations is unclear. Arguably, the lack of congruency between school demographics and New York City's population is a result of racial patterns present in housing, which is often highly segregated due to a variety of factors. (42) Therefore, if school segregation is regarded as a residential segregation problem, and not as a product of discriminatory intent, it will be difficult to mandate integration or remedial action.
In addition to the authority that Brown and Davis provide, there exists a body of jurisprudence that supports alternative resolutions for de facto segregation. (43) These cases refer to considerations, in addition to pure intent and purpose, that are relevant to a determination that a practice is unconstitutionally discriminatory. (44) Without overturning or explicitly countering the rules established in Davis, they suggest that impact and effect are significant factors that weigh in favor of a finding that a practice is unconstitutional. (45) These cases indicate that judges are not only reviewing these matters with respect to the intent and purpose behind them, but rather analyzing the results of certain practices in their entirety when deciding whether such practices should be upheld. Although these cases do not minimize Davis's precedential value, they are equally authoritative and worth considering here. (46)
This Note aims to close the gap between Brown and Davis in hopes of providing a remedy that will allow for greater racial and socioeconomic integration. It does not propose that Davis should be overruled or that discriminatory purpose should not be a fundamental component of analyzing equal protection cases. However, it does suggest that the problem of school segregation should be considered through the lens of the equally authoritative and persuasive precedents that put...