Using litigation to address violence in urban public schools.

• Author: Parthum, Michelle

1. INTRODUCTION

   It is well recognized that America is facing a crisis in public education. (1) Nationwide, black and Latino students suffer from an achievement gap compared with white and Asian students: black and Latino students perform worse on standardized tests, (2) have lower high school graduation rates, (3) and have lower college attendance and graduation rates than white and Asian students. (4) This reality is connected to many other disturbing national trends, such as the disproportionate incarceration rate of black and Latino men (5) and the disproportionate unemployment levels for black and Latino adults. (6) It is clear that our nation's schools are not helping all children to succeed. (7)

   Much attention has rightly been paid to the achievement gap in the last few decades. (8) Politicians, scholars, parents, and teachers have come to realize that the achievement gap is a critical civil rights issue and have begun discussing ways that it could be overcome. (9) This attention and conversation is essential. Over time, the focus has narrowed to "outputs," the actual rate of student achievement as indicated by standardized tests. (10) However, there are important characteristics of a child's schooling that have not found their way into conversations about academic outputs, and these issues deserve to be discussed alongside the very important topic of student achievement.

   One such issue is student behavior and discipline within the school environment. It is true that in the wake of several highly publicized incidents of school violence in the last fifteen years, student behavior in schools has received periods of passing attention from politicians and the media. (11) However, there is a phenomenon of school violence that has received very little attention or discussion, and it is essential that these conversations begin to take place. This phenomenon is the everyday violence of inner-city schools populated predominantly by black and Latino students. These schools are plagued with violence and behavioral disruptions that dwarf such incidents at suburban schools attended predominantly by white and Asian students. (12) The culture of disruption and violence in these schools is troubling for many reasons. Incidents of violence and behavioral disruptions take away the instructional time so desperately needed by students in these schools. (13) The frequency of these incidents creates a school culture of chaos and disruption, undermining the learning environment. (14) Incidents of disruption and violence normalize antisocial behavior (15) in students and prevent these schools from fulfilling one of their obligations to students and parents: training students to become productive members of society. (16) This is evident in a phenomenon called the school-to-prison pipeline, which posits that inner-city schools have become staging grounds for the acts of violence that will land their students in prison. (17) This issue is critically important to the social and emotional development of students in inner-city schools, as well as to their academic progress. It is for this reason that a discussion of school discipline belongs within a conversation about academic attainment and the achievement gap faced by black and Latino students. School discipline is an essential factor contributing to this achievement gap, and until this problem is addressed, the achievement gap will not close.

   This Note discusses the phenomenon of violence and disruption within inner-city schools and what can be done to solve that problem. Parts II and III provide a history of some litigation efforts that resulted in greater educational equity for all students, specifically, school desegregation litigation and school finance litigation. Part IV examines school discipline in general, its importance in the educational process, and the difficulties that inner-city schools face in maintaining environments that are conducive to learning. This Part explains some of the methods currently used in inner-city schools for behavioral control and details their shortcomings, drawing upon the school-to-prison pipeline concept to argue that our schools are not providing our students with healthy models of behavioral control. Part V proposes a litigation strategy to address the problem of urban school violence that utilizes other strategies that have previously found success in the area of education reform.

2. COURT INVOLVEMENT IN SCHOOL DESEGREGATION

   The United States Supreme Court in Brown v. Board of Education (18) declared that state-imposed segregation of public schools violates the Equal Protection Clause (19) of the U.S. Constitution. (20) A year later, the Court reheard the case (21) and ordered that public schools desegregate. (22) To enforce this desegregation mandate, the Supreme Court empowered federal district courts to hold school districts accountable for creating plans (23) that would lead to desegregated school districts. (24) The district courts were also given authority to evaluate the adequacy of proposed plans (25) and to retain jurisdiction over these cases while such plans were implemented. (26) Following this decision, numerous plaintiffs brought cases asking the federal district courts to enforce this ruling against local school districts. (27)

   An example of one such case is Swann v. Charlotte-Mecklenburg Board of Education. (28) In this case, the Supreme Court upheld the district court's authority to impose a desegregation plan upon the Charlotte Mecklenburg school system. (29) In the course of exercising this authority, the district court (1) ordered the school district to "come forward with a plan for both faculty and student desegregation"; (30) (2) held the school district's initial proposed plan to be unacceptable and appointed an education administrator to develop a plan of his own, (31) and (3) reviewed the different proposed plans and selected the plan it deemed best suited to achieve the objective of desegregation. (32) In affirming the actions of the district court, the Supreme Court stated that "[i]n default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy." (33)

   Swann is exemplary of the many desegregation cases that took place throughout the country, which were characterized by certain key similarities. (34) First, the plaintiffs' complaints in all these cases were founded on the same legal authority, the Equal Protection Clause of the Constitution and the Supreme Court's rulings in Brown I and Brown II. (35) Second, the defendants in these suits were all local school districts. The Supreme Court's order in Brown II had charged local districts with desegregation, (36) so where segregated conditions persisted, plaintiffs sought to hold these districts accountable for their failure. (37) Third, the forums were all federal district courts. (38) Fourth, the district courts took an active role by ordering school boards to develop plans to address desegregation, (39) evaluating those plans, (40) appointing experts to develop plans where those proffered by the school districts were held unacceptable, (41) and ultimately selecting the plans to be implemented. (42) In addition, these courts typically retained jurisdiction over the cases while the selected plans were implemented to ensure that the objective of desegregation was in fact accomplished. (43) These cases form a strong precedent for the involvement of courts in complex issues of educational access. (44)

3. SCHOOL FINANCE AND PERSISTENT INEQUITIES

   Despite the efforts made in cases like Brown and Swann to desegregate schools, public schools across this country remained segregated by race. (45) The persistence of segregation caused advocates for equal educational opportunity to take their battle in a new direction: school finance reform. (46) Because local property taxation formed the predominant funding source for public schools, (47) great disparities in school funding existed between communities. Property-rich districts were able to generate substantial revenues based upon their high property values, whereas property-poor districts raised substantially less. (48) Disparate revenues meant disparate amounts spent to educate each individual child. (49)

   Litigants drew upon the strategies utilized in school desegregation cases to challenge these funding formulas in court. (50) As opposed to the desegregation cases, there was no Supreme Court order that plaintiffs could rely upon for their cause of action. (51) However, these plaintiffs interpreted the holding of Brown I to mean that the Equal Protection Clause required some measure of equality in public schooling, (52) so they used the Fourteenth Amendment as the basis for their claims. (53) Specifically, plaintiffs argued that public school finance schemes, with their "substantial dependence on local property taxes and resultant wide disparities in school revenue, violate[d] the equal protection clause of the Fourteenth Amendment." (54)

   Based upon the Supreme Court's equal protection jurisprudence, litigants had to establish one of two threshold issues before benefiting from strict scrutiny review of the school finance plans. (55) They either had to prove that wealth was a "suspect" classification (56) or that education was a "fundamental" right. (57) one case in which the plaintiffs' equal protection argument was successful was Serrano v. Priest. (58) In this case, the court held that the plaintiff class was a suspect class for equal protection purposes (59) and that education was a fundamental right. (60) The court applied strict scrutiny to its review of the school financing system, ultimately holding that the system, as structured, was not "necessary to achieve a compelling state interest." (61)

   However, the Supreme Court effectively closed the door on this litigation strategy (62) in San Antonio Independent School District v...