Law in Contemporary Society

Unequal Funding of Public Education and the Conventional Criticism of Affirmative Action

-- By CMcKinney - 13 Mar 2015

Arguing against Affirmative Action

The Assignments

During my final semester in college, I was assigned to argue against affirmative action: Twice. Once in a public speaking course and once for a class debate. I began the projects by researching the legal status of affirmative action in America today, which was not hard to discover: The Supreme Court has approved the use of affirmative action programs that are designed to improve learning outcomes by increasing student body diversity. From there, I explored the conventional criticisms of the policy, and what I found was similarly unsurprising.

The Conventional Critical Narrative: State-sanctioned racial discrimination

If nothing else, Lino Graglia’s writings represent the orthodox right-wing critique of affirmative action. His argument goes something like this: The policy is inconsistent with the “traditional” American ideal that all people are equal in the eyes of the law and should be treated as individuals, rather than as members of racial groups. This might seem fair on its face: Why should an applicant with lower grades and test scores be selected over a more qualified candidate simply because of his race. And, so the argument goes, some groups simply tend to perform worse than others, and it is not the state’s role to challenge those results.

Arguments like Graglia’s, sounding in ‘color blindness’, have appeared in judicial decisions seemingly unrelated to affirmative action. Notably, in his 2007 plurality opinion in Seattle School District No. 1, Chief Justice Roberts dressed his argument for disemboweling a program designed to afford disadvantaged youths quality educations with a veneer of ‘color blindness.’ Prior to that decision, Seattle had voluntarily employed a series of school integration plans for thirty years – one of which was gutted by a state initiative in 1978, and then restored by the Supreme Court. These plans aimed to soothe the impact of de facto segregation in the city. Seattle School District Number 1, for example, sought to enroll more non-white students at the generously funded and well performing high schools on the city’s north end.

Seattle School District No. 1 was born when the mother of an 8th grade student filed suit against the city after her daughter was denied enrollment at the city’s finest public high school, which had recently undergone a $35 million renovation and offered programs in Biotechnology, Finance, and Digital Filmmaking. When the 2007 decision was issued, five members of the Court sided with the plaintiff and invalidated the student assignment plan. And aside from his citations to Brown, Roberts’ opinion sounded more in Graglia than Warren. The penultimate sentence of his opinion reads: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” With that, “color blindness” prevailed and Seattle was forced to abandon its efforts to enroll disadvantaged youths at the city’s best schools.

Affirmative Action and Disparate Public School Funding

Superficially, there might not seem to be a relationship between affirmative action programs intended to benefit university students with improved learning outcomes and public school integration plans designed to give disadvantaged youths an opportunity to attend the best schools. Nonetheless, if all children were given access to an equal public education, affirmative action would be far less justifiable. At least this is the conclusion I reached after I discovered a 1973 decision involving a school district less than a mile from my desk in San Antonio.

SAISD v. Rodriguez (1973)

Nineteen years after a unanimous Supreme Court declared that public education “must be made available to all on equal terms,” the Court heard San Antonio Independent School District v. Rodriguez. This lawsuit was filed in 1968 against Alamo Heights ISD by the Edgewood Concerned Parents Association, who alleged that the Texas School Finance System (TSFS) violated the Equal Protection Clause by granting markedly greater per student funding to schools in wealthy areas. Because about half of school funding was based on property tax revenues under TSFS’s financing scheme, Edgewood received $356 in public funding per student annually, while Alamo Heights received $594 for each of its students.

Comparing Alamo Heights ISD and Edgewood ISD

In Alamo Heights, the most affluent district in the city, a sizable majority of students were white. In Edgewood, located on the city’s low-income Inner Westside, 97% of students were Hispanic. Alamo Heights’ extra $238 of funding per student went a long way: Alamo Heights had one teacher for every 19 students, Edgewood had one for every 28; Alamo Heights had 9.4 library books per student, while Edgewood had 3.9; finally, Alamo Heights had one counselor for every 1,553 students, while Edgewood had one for every 5,672.

The Decision and Continuing Conflict in Texas

Despite the Brown mandate and the vast disparities in resources afforded to schoolchildren based solely on their addresses, five members of the Supreme Court voted to uphold the funding scheme. Justice Powell, writing for the majority, concluded that poverty is not a suspect classification and that education is not a fundamental right.

The battle over school funding in Texas did not end with Rodriguez. Since 1989, four different funding plans have been held to violate the state constitution, based on findings of inadequacy, inefficiency, and inequality. Nonetheless, the stopgap measures have continued to base about half of funding on local property taxes; and in 2012, the 100 richest districts in Texas received about $8,000 of funding per student, while the poorest 100 received $5,000.

The Real Question

I am not under the false impression that I am better versed in the levels of scrutiny or fundamental rights than the five justices who upheld TSFS’s financing scheme. Nonetheless, it inescapably unfair for some children to receive a better education than others in state-funded public schools solely because of the location of their homes. And in March 1973, the highest court in the United States affirmed that unfairness. There comes a time when implications become more important than formulas.

The Connection: Unequal Access to Education Spurs the Use of Affirmative Action

Brown mandated that public education be made available to all on equal terms. The Rodriguez majority eviscerated that mandate when it upheld a system that assured disadvantaged youths would receive less attention from teachers, scantily stocked libraries, and far less guidance from administrators. If Lino Graglia wishes to continue asserting that affirmative action cannot cure the problem of poor academic performance, I hope he takes note that, at least in his home state, many students denied an equal chance to perform from the start. So long as funding is based on wealth and wealth continues to be strongly correlated with historical and systematic advantages, Graglia’s opposition will not withdraw. In light Seattle School District No. 1 and Rodriguez, he should not hold his breath.


Webs Webs

r4 - 29 Jun 2015 - 20:06:34 - MarkDrake
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM