Localism, Pretext, and the Color of School Dollars

By Derek W. Black. Full Text. 

Educational inequality is embedded in the structure of education itself. School districts, not individual schools, are the gatekeepers of educational opportunity. Racial isolation exists between school districts, not within them. Enormous funding gaps exist between neighboring school districts, sometimes in the same city, but not within them. These fault lines dictate everything from class size and teacher quality to suspension rates, achievement test scores, and graduation. To date, courts have rejected claims and remedies that would interfere with school district boundaries or local funding. The reluctance rests on the notion that localism is the historical foundation of public education. This Article reveals that this notion is thoroughly mistaken.

Drawing on education history and state constitutions, this Article demonstrates that localized and unequal schools are contrary to the original intent for public education. State constitutions consistently assigned educational responsibilities to the states, rather than local communities, with the goal of ensuring all students’ access to a quality education. The only exception to this trend occurred in the late 1800s when Southern states reverted to localism as a strategy to segregate and defund Black children’s access to education. Using this history, this Article identifies two doctrinal solutions to current inequality. First, federal courts should recognize certain aspects of southern states’ continued reliance on local school funding as violating the Equal Protection Clause. Second, regardless of historical discrimination, state courts should reject localism as a sufficient justification for states’ failure to ensure adequate and equal education under their state constitutions.