Education Secession and Gerrymandering — Inequity by design
The United States is crisscrossed by lines, the boundaries of roughly 13,000 school districts. But this map is hardly etched in stone; in fact, just in the last two years, more than two dozen communities have tried to redraw the lines to their advantage.[1]
Education is not a federal constitutional right, but it is a state constitutional right. Thomas Jefferson and John Adams tried to put a right to education into the federal constitution and failed, primarily because states did not want to pay a federal education tax. When the Northwest Ordinance of 1787 was developed, all newly accepted expansion states were required to have education in their state constitutions. Prior to the Civil War, only half the states had an education provision but after the war, the federal government felt it was imperative to teach civics to support the new democracy. Southern states could not be readmitted to the Union without an education clause in their state constitution and this set the stage for all future state admissions. However, there are no federal guidelines as to how each state is to provide education which allows education to be used as a tool of suppression.
Education gerrymandering is a white supremacy tool that perpetuates education inequity by design. Since 2017, thirty states have benefited from protected processes under state law for school district secession and two states have laws that allow communities to self-isolate from other school districts. These processes can be launched from a simple community majority vote to a multistep process requiring state approval. There is no regard to the impact on education equality or equity and the justification for gerrymandering is a simple claim that communities want to keep their tax dollars in their local schools. The number of communities looking for secession continues to rise with over 128 attempting secession since 2000.[2]
Neither the Supreme Court, nor any court, has the right to mandate funding or equity in education or the quality of education provided. Numerous equity cases have been brought before the Supreme Court and failed because there is no definition of ‘quality,’ ‘equality,’ or ‘equity’ for the courts to apply in their decisions. Congress can only enact federal education legislation under the ‘spending clause’ through their authority to tax and spend for the general welfare. [3]
State legislatures have wide discretion in supporting state constitutional obligations but are expected to act in good faith. They often ignore this responsibility when it comes to marginalized students. Because there is not a federal mandate or definition of education requirements, anything goes, even if students pay the educational price.
It’s a more concrete example of the ‘Make America Great Again’ ethos,” said Erika Wilson, a law professor at the University of North Carolina Chapel Hill who has written extensively on the topic. “I call it a form of destructive localism. People who are fortunate enough to form utopias do so on the backs of other folks who have been excluded.[4]
Educational gerrymandering encompasses the underestimating of education costs, minimizing supplementation of at risk-students, excluding an inflation rate and fixed cost increases, and cost shifting to local school districts. Manipulated and cherry-picked data are often used to support underfunded budgets. Manipulation and cost-shifting presents the illusion that states are doing a better job of decreasing school inequity than reality. The underestimating of costs and delays in funding inflates the savings for states presented in their overall budgeting.[5]
Court challenges on funding inequity have been successful more than half the time since the 1970s. However, despite court decisions against them, states do not change their practices or even address the remedy stipulated by the court. State funding formulas are extremely complex by design which makes it difficult to follow the money. There are opportunities embedded in the formulas that allow partiality in who receives the funds thus, preventing schools from often meeting adequate standards of performance or receiving equitable funding. Some of these funding deficiencies include intentional underestimating of education costs, lack of inflationary increases, exclusions or limits to low-income and special education students within the formula, and cost-shifting funding to low-income districts that do not have the resources to fill in the need.[6] As a result, courts overlook the causes of inequity and provide remedies that do not cure the disease. This presents a legal and political parallel to voter gerrymandering and therefore, education gerrymandering should be viewed as unconstitutional.[7]
But this isn’t just a failure of people — of their unwillingness to honor a social contract with a larger community, regardless of their fortunes. This is also a failure of the courts and our state legislatures. They have created a system that incentivizes middle-class people to use their moderate wealth to wall in opportunities for their own kids, while depriving the kids of others. They’ve allowed parents, acting in self-interest, to create school systems that reproduce, or even exacerbate, the structural inequality we see today.[8]
Historian and education attorney, Derek W. Black, argues courts incorrectly focus exclusively on the adequacy and equity of education funding for at-risk students and then they demand more revenue be applied to address the inequity.[9] Courts across the country do not focus on the causes of funding inequity. Black states inequity is by intentional design because states “have ulterior aims and biases — maintaining privilege for suburban schools, lowering taxes for wealthy individuals, and not ‘wasting’ money on low-income kids.” This is achieved through an unchecked, manipulated education gerrymandering that provides more resources to privileged school districts than needy districts. Studies have shown that a twenty percent funding variance within a state can be responsible for half of the Black-white graduation divide.[10]
States not only embrace this inequity, but they often justify it by having a targeted funding number backed into the budget by manipulating supporting documentation to serve their needs. This creates other issues that revolve around the objective of the formula by pulling funding away from disadvantaged students to redirect the funds to privileged students.[11] States that avoid their constitutional obligation to provide adequate funding for low-income and minority students, increase the gap in educational achievement by systemic design. More affluent suburban school districts have no interest in subsidizing education for low-income students by paying more taxes for what many believe, is wasted money on ‘at-risk students’. However, many of these same school districts will support an additional tax referendum to add funding for their own community schools.
Special education students are often hurt with funding gerrymandering. Texas sets the number of special education students at 8.5% with no actual data and this number is significantly lower than the national average of 13%. Six states do not provide extra funds for low-income students and the majority fund at a lower rate than what the federal government and experts project as a realistic number. Only three states use recommended numbers for low-income student enrollment. These local school districts are unable to compensate for this underfunding which is viewed as a cost-savings opportunity by the state. Two thirds of states exclude concentrated poverty in their budgeting which benefits primarily middle-income suburban districts.[12] If affluent suburban districts need more money, they are usually able to assess an additional community tax with little resistance. This protects suburban school districts from having to subsidize urban schools and assuring that 100% of their tax assessment benefits their schools.
School gerrymandering supports two key objectives, it boosts funding for affluent suburbs who can subsidize state funding and it minimizes suburban funding of disadvantaged students. State leaders do not prioritize public school funding and use failing schools to justify vouchers and privatization through charter schools. This avoids the need to raise taxes or take revenue from other programs while playing on the concept of ‘not wasting money’ on low-income students.
To manipulate the state mandate for public education, school funding is subject to a variety of gerrymandering techniques which allows the legislature to “resist and reject judicial authority.”[13] The Supreme Court Case of Brown v. Board of Education (1957) required districts to develop integration plans following the decision and districts that didn’t comply with the decision, were committing a constitutional violation according to the court. A few years later, in Swann v. Charlotte-Mecklenburg, the courts took more aggressive action to assure compliance with Brown by implying that districts had policy discretion but they did not have avoidance and resistance rights. Black argues that since school funding requires the same compliance of acting in good faith, the court and legislature can take actions to implement an appropriate remedy.[14]
The way school funding is determined and the lack of a definition of an ‘adequate’ or ‘equal’ education, allows funding loopholes to be exploited and perpetuated. These terms must be defined and universally accepted, along with measurements and enforcements — otherwise it is impossible to establish legal grounds for avoidance and rejection. Equity litigation requires schools to meet certain thresholds for equal opportunities.[15] School funding and academic standards are determined by state legislatures and courts can only provide opinions if the framework does not meet constitutional standards. Courts cannot remedy the problem with a legislative mandate or even a recommendation. Without clear definitions and metrics, the courts have little authority over education funding. However, the legislature does have full authority to provide definitions, inclusivity, metrics, implementation, and enforcement guidelines.
Our school funding structure means that, whatever the express motivation for a proposed school district split, “local control” through secession will always be tied to money. Incentivizing communities to opt out of the public good, create inefficiencies, and keep their money for themselves will only further the economic divide in our country and segregate America’s next generation.[16]
States do not have a legitimate or logical rationale for education discrimination and inequity. Courts have previously struck down discrimination based on race and gender, even when it has not been blatantly presented. Our courts must support equal opportunity and treatment and, if one group is denied equal access, that should fall under the protection of our laws. Additionally, the Supreme Court has taken action on voter gerrymandering for denying targeted groups including Vieth v. Jubelirer where all nine justices agreed “that ‘an excessive injection of politics’ in the redistricting process violates the Constitution.”[17] In the district court case, Gill v. Whitford, the court found gerrymandering represented “…an excessive injection of politics into the redistricting process that impinges on the representational rights of those associated with the party out of power.”[18]
Black defines gerrymandering as an illegitimate government goal to intentionally target a specific group with no justification to support the singling out of the group. The absence of animus does not deem the action constitutional, and the method of singling out a group does not justify the action.[19] Therefore, states have a constitutional duty to pursue equal and equitable education funding.
Education inequity is based on residential segregation by intentional design. From the early Federal housing program in the 1940s to redlining to white flight, predominately poor and Black communities are historically interlinked. There is an increasing movement of states towards vouchers and privatizing education which leads to further segregation and less funding for public education on a needs-basis. Believing that funding decisions are for financial gains alone is a whitewashing of the real reasons behind education funding inequity. The goal of white supremacy is to suppress education to prevent Black economic and political advancement that could threaten the status quo. If we allow public education to die due to underfunding, our democracy will be under threat as Jefferson and Adams feared.
Citations:
[1] Fractured: The Accelerating Breakdown of America’s School Districts. EdBuild. 2019. https://edbuild.org/content/fractured.
[2] Ibid
[3] Derek Black, Educational Gerrymandering: Money, Motives, and Constitutional Rights, 94 N.Y.U. L. Rev. 1385 (December 2019), 40–41.
[4] Chang, Alvin. School Segregation Didn’t Go Away. It Just Evolved. Vox. Vox, July 27, 2017. https://www.vox.com/policy-and-politics/2017/7/27/16004084/school-segregation-evolution.
[5] Ibid, 14–15.
[6] Ibid, 47–48.
[7] Ibid, 58–59.
[8] Chang, 2017
[9] Ibid, 1.
[10] Ibid, 2.
[11] Ibid, 11.
[12] Ibid, 15.
[13] Ibid, 44.
[14] Ibid, 46.
[15] Ibid, 50.
[16] “Fractured: The Accelerating Breakdown of America’s School Districts.” EdBuild, 2019. https://edbuild.org/content/fractured.
[17] Ibid, 58.
[18] Ibid, 58–59.
[19] Ibid, 60.
