The Covid-19 pandemic has drawn renewed focus on inequality in K-12 education in the United States. Some schools and systems have quickly transitioned to high-quality distance learning, while some have struggled to supply students with effective learning experiences.
While the context is totally new, these inequalities predate the pandemic. Despite decades of increases in per-pupil spending and ongoing waves of reform, you will find huge disparities in the quality of public schools, even those inside the same district and merely blocks away from one another. And accessibility best public schools is often restricted based on where you live.
Take two schools, for instance, that serve that old Town neighborhood of Chicago. Lincoln Elementary is one of the crown jewels from the Chicago Public Schools, with 80% from the students proficient in reading. Approximately a mile south is Manierre Elementary, where not really a single graduating eighth grader tested experienced in reading in 2021.
What keeps the two schools separate? An attendance zone boundary. Children who live north of North Avenue sign up for elite Lincoln Elementary. Children south of North Avenue are not allowed to enroll in Lincoln and are assigned to failing Manierre. For a child in Old Town, your fate turns on whether you live somewhere of the street or another.
This is definitely an American phenomenon. In nearly every city the pattern is the same: State regulations allows (or even requires) the district to draw attendance zones showing who gets to attend which schools. Districts use the lines to find out who can enroll in these elite, high-performing public schools. Young families respond to the policies by cramming in to the coveted zone, driving up home prices. Other parents lie about their address to achieve access. The divide between the two schools, often just blocks apart, grows with time.
The Top court ended overt segregation of the public schools using its 1954 ruling in Brown v. Board of Education. Conventional wisdom states that school districts, according to Brown, can assign children to varsities in any way they want, as long as they don't discriminate based on race.
But the usual understanding has forgotten about the Equal Educational Opportunities Act of 1974.
In March 1972, President Nixon was feeling boxed in through the issue of desegregation. Many federal courts had signed off on busing plans that will force the integration of public schools in districts which had previously engaged in overt segregation. But members of both parties-including Joe Biden-opposed federal-court-ordered busing.
Nixon opposed busing, but he also desired to express sympathy for children caught in failing schools which were divided along racial lines. So, on March 17, he delivered an address to the American people, offering an agreement. He proposed a moratorium on federally mandated busing but also a \”companion measure\” known as the Equal Educational Opportunities Act, which may increase funding for inner-city schools, particularly those attended by minorities.
That law, the EEOA, would not be signed for another two years. Presidents Nixon and Ford would need to negotiate with lawmakers to get it through the Democratic Congress. The resulting law is really a strange mixture of high-minded goals and status-quo-ism. It's all there in the first sentence of the law:
The Congress declares so that it is the policy of the us that-(1) all children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin; and (2) the neighborhood may be the appropriate basis for determining public school assignments.
On the main one hand, it promises equal opportunity.
On another hand, it endorses neighborhood-based schools and district-drawn attendance zones. Given the information on racially segregated neighborhoods, neighborhood-based schools would, by default, mean schools divided along racial lines. The EEOA also implicitly endorses the assignment of students to schools by the district or even the state, rather than a more open system by which parents would play a far more active role in determining which public school the youngster attends.
However, here's what Section 1703 from the EEOA says concerning the assignment of minority children to public schools:
No State shall deny equal educational chance to an individual due to his or her race, color, sex, or national origin, by . . . a job by an academic agency of a student to a school, other than the main one closest to their place of residence within the school district in which she or he resides, if the assignment produces a better segregation of students on the basis of race, color, sex, or national origin-
The full implications of this language have not yet been widely understood. For minority children, federal law defines the neighborhood school as \”the one closest to their place of residence inside the school district by which he or she resides.\” And Congress prohibits the district from assigning a minority child to a different school, whether it will result in \”a better segregation.\”
What is this peculiar, misshapen thing that we call an attendance zone? This is an administrative service area. Government bureaucrats carve up the map and see who gets preferred enrollment at what school. There are no elected officials in the attendance-zone level-and no political representation. The residents of a school zone aren't susceptible to special taxes that go towards the local school. An attendance zone is another license to discriminate. If the school is full (most of the best schools are), then the attendance zone offers the school with the ability to exclude families who live inside the district's jurisdictional boundaries but outside of the arbitrary zone for that school as drawn by district staff.
Note here that i am not referring to the boundaries between school districts, which are political subdivisions. Those lines are jurisdictional. As governmental entities, school districts are typically overseen by elected or appointed board members. School districts usually have the legal authority to evaluate taxes on their own constituents or issue bonds in order to fund the district's activities. That's not true in the attendance zone level.
Most attendance zones are irregular in shape, which means that there are lots of pockets where families whose closest school is highly coveted (and performing) are allotted to another school that may be struggling or perhaps failing. The presence of these pockets appears to be in violation of the EEOA.
Figure 1 shows the attendance zone for Mount Washington Elementary in La and the seven elementary schools that encircle it. At highly coveted Mount Washington, 75% from the students were experienced in reading in 2021, as the surrounding schools have reading proficiency rates between 16% and 54%. As a result, families pay a premium of $200,000 or even more for any house that falls around the right side of the Mount Washington attendance zone boundary.
Source: California Department of Education and Los Angeles Unified School District.
For families who live in the striped areas of the map, Mount Washington is the closest school. Because Mount Washington is so much \”whiter\” compared to surrounding schools, L.A. Unified School District is developing a \”greater degree of segregation\” by assigning minority students residing in those striped areas with other, more distant schools. Any minority student living in those areas-black, Hispanic, Asian, Native American-could file a claim in the federal courts, asking the courts to make Mount Washington Elementary to permit them an equal opportunity to enroll.
Similar maps might be made for any number of public schools in American cities. P.S. 8 in Brooklyn. John Hay Elementary in Seattle. Lakewood Elementary in Dallas. Mary Lin Elementary in Atlanta. Lincoln Elementary in Chicago. Ivanhoe Elementary in Los Angeles. Chesterton Elementary in San Diego. Penn Alexander Elementary in Philadelphia. All these schools is a coveted public school showing above-average student performance, and every is encompassed by underperforming schools with high concentrations of poor, minority students.
Other parts of the law provide more clarity about exactly what is permitted and what is illegal. Section 1704 explicitly states that districts do not have to keep things in balance \”on the foundation of race, color, sex, or national origin.\” Racially imbalanced schools are not in violation of what the law states, so long as minority students have not been allotted to schools farther from their house.
Also, it's perfectly legal under the EEOA for the district to assign a minority child to a school that is not the nearest to their residence, if it does not exacerbate segregation. Take a Hispanic child whose closest school is Aragon Avenue Elementary, which has only 3% white students and only 16% overall proficiency in reading. The district is free to assign that child to go to Mount Washington Elementary, because this kind of assignment would alleviate segregation, instead of exacerbate it. And minority students can choose a school that isn't nearest for their homes, no matter its impact on segregation, since the district has not assigned them there.
Section 1705 says that \”assignment on neighborhood basis [is] not really a denial of equal educational opportunity.\” At first glance, this appears to provide legal cover for attendance zones. But Congress, perhaps anticipating that districts could play games with the concept of the word neighborhood, reiterates once again a really specific meaning of a neighborhood school: It is \”the school nearest [the student's] host to residence.\”
There is surprisingly little case law highly relevant to the EEOA. The major cases all cope with other provisions of the law, such as its requirement that states and districts take \”appropriate action\” to beat obstacles to education that arise from language barriers. I've been unable to find any case law that interprets and applies the clause from the EEOA that governs student assignment.
The harder you look at attendance zones, the more they appear to violate fundamental principles. Isn't public education said to be \”the Great Equalizer\” providing equal chance of all children, no matter race or income level? Aren't we all supposed to be treated equally underneath the law?
In the landmark ruling of Brown v. Board of Education, Chief Justice Warren wrote:
In these days, it is doubtful that any child may reasonably be anticipated to succeed in life if he's denied the chance of instruction. Such an opportunity, in which the state has undertaken to supply it, is a right which must be made available to all on equal terms.
Sixty-six years after the Brown ruling, public education continues to be not \”available to any or all on equal terms.\” In 1951, they used Linda Brown's race to help keep her from Sumner Elementary School. In 2021, they use a meandering line drawn with the neighborhood to keep many local children from Mount Washington Elementary.
After studying this problem for several years, I've come to the final outcome that attendance zones are-and should be-vulnerable to legal challenge. This vulnerability extends beyond an EEOA challenge to the form of a particular zone.
Look first at the state constitutions. There are seven states where the state constitution requires the legislature to determine schools that are \”open to all\”: Alaska, Arizona, Indiana, Boise state broncos, North Dakota, Sc, and South dakota. This is actually the question for all those state courts: If a school can decline to enroll a child solely based on his or her residential address inside the district, is that school truly \”open to all\” the residents from the district? I do not believe that it is.
Similarly, five states promise \”equality of educational opportunity.\” Louisiana, Montana, and New york mention this phrase (or something like that very similar) in their state constitution. The Supreme Courts of New Jersey and Tennessee have inferred that a similar constitutional right exists in those states. When a school-district official draws a geographic attendance-zone boundary assigning one child to a great school and denying enrollment to another child on the opposite side of the street, the district fails to provide the \”equality of opportunity\” that is promised by those five states.
But those aren't the only real states where attendance-zone boundaries might be vulnerable. In 13 states (including three that also have an \”open to all\” requirement), the courts have previously declared education to be a \”fundamental right.\” In these states, the courts have to apply \”strict scrutiny\” to the classifications that create unequal use of public schools. What's important about strict scrutiny is it transfers the burden of proof towards the government, requiring these to reveal that the discrimination was necessary to further a \”compelling governmental interest\” and that the policy was \”narrowly tailored\” to accomplish this interest.
Enrollment exclusions based on geography are hardly \”narrowly tailored.\” Indeed, in most states, charter schools are forbidden from establishing geographic attendance zones. Defenders of geographic zoning would be forced to reason that the government includes a \”compelling interest\” in establishing exclusionary boundaries for some public schools, while forbidding them for others.
An a great deal larger real question is whether attendance zones are susceptible to challenge within the federal courts underneath the 14th Amendment's promise of Equal Protection. Don't these exclusionary zones violate Justice Warren's commitment to the idea that a public education must be \”available to any or all on equal terms\”?
On the top, it is an easy idea to dismiss. The government courts only apply strict scrutiny to government actions whenever a \”fundamental right\” is restricted or perhaps a \”suspect classification\” is employed. But education is not a \”fundamental right\” under the U.S. Constitution, and classifications according to where you reside don't create a suspect class as based on the courts. Without strict scrutiny, such policies would face little risk of being overturned.
However, the final Court's original definition of Equal Protection, outlined in early 1900s, seems to be at odds with the geographical enrollment preferences and attendance-zone boundaries that emerged within the mid-1900s and then be used today. In one of the first key cases that applied the idea of equal protection inside a case that didn't involve race (Royster Guano Company v. Virginia, 1920), a legal court said the following:
The classification should be reasonable, not arbitrary, and must rest upon some ground of difference using a fair and substantial relation to the item of the legislation, so that all persons similarly circumstanced shall be treated alike.
It seems clear that two children, living across the street in one another and inside the jurisdictional boundaries of the same school district, are \”similarly circumstanced\” relative to the laws that establish the academic system. Are the ones two children \”treated alike\” when one is allotted to a top-notch public school and the other turned away due to where she lives?
No, they are not.
A case within the federal courts would concentrate on asking the judges to use \”intermediate scrutiny\” to these discriminatory laws and policies, because they did in other high-stakes cases involving equal access to public institutions of education. In Plyler v. Doe (1982), the Court overturned a Texas law that authorized school districts to deny enrollment to children who have been undocumented immigrants. A legal court applied the standard in Brown that education \”must be made open to all on equal terms.\” In US v. Virginia (1996), a legal court struck down the male-only admissions policy in the Virginia Military Institute since the State had didn't provide a \”substantially comparable\” alternative to ladies who have been averted. No court could fairly deem Manierre Elementary to be \”substantially comparable\” to Lincoln Elementary.
Some will argue that it is very unlikely the courts will use the Equal Protection clause to strike down an insurance policy that has such a long history in our country and that is so widespread. Could be. But we ought to be troubled that attendance zones appear, at the minimum, to violate the spirit of equal protection.
One Supreme Court justice, writing in 1992, saw the wisdom in focusing on equal access in the public schools. Justice Antonin Scalia argued that we should open up the public schools to any or all comers, imagining an academic system \”in which parents can disregard neighborhood-school assignment, and also to send their kids (with transportation paid) to whichever school they choose.\”
In a concurring opinion in the Freeman v. Pitts desegregation case, Justice Scalia argued that the Court could have taken another approach in the years following the Brown decision. By overseeing complicated desegregation plans, the Court had waded deeper and deeper in to the operations of school districts, prescribing a variety of bureaucratic remedies that may theoretically transform a \”segregated\” district right into a \”unitary\” one.
Instead, Justice Scalia proposed that the court could have simply focused on school access:
An observer not really acquainted with the history surrounding this issue might suggest that we steer clear of the problem by requiring only that the school authorities establish a regime in which parents can disregard neighborhood-school assignment, and to send their kids (with transportation paid) to whichever school they choose. As long as there's free choice, he would say, there is no reason to require the schools be produced identical. The constitutional right is equal racial use of schools, not access to racially equal schools.
To Scalia, equal access would be a more justiciable question-a question appropriate for that courts to weigh in on-than the question of what actions might be taken to transform a \”segregated\” district right into a \”unitary\” one.
In the same opinion, Scalia predicted the Court's longstanding method of desegregation was determined to result in the courts irrelevant, as districts removed all remnants of overt (or de jure) segregation. And his prediction was right: Today almost all school districts are judged to become \”unitary,\” despite stark ongoing divisions of race and sophistication, since they are far enough taken off any overt policies that segregated the schools by race.
Focusing on access, as Scalia suggested, would restore the courts' rightful role like a guardian of equal opportunity in the schools. It would not mean that a child includes a to attend a specific school. Good public schools are scarce, specially in the inner cities. Great public schools are even harder to locate. Not everybody will be able to attend the very best school in the district. But all district residents must have an equal opportunity to enroll in the very best schools within the district. Inside a public school lottery, for instance, you will find winners and losers. The outcomes might seem frustrating or even tragic. But a lottery gives every district family a good chance-an equal opportunity-to enroll the youngster in a coveted school that could dramatically change their life trajectory.
We may go through sympathy for those who may be harmed by rulings that will open these elite schools to all residents of a district. Take a family who has paid $250,000 more for a house due to its guaranteed access to an elite public school. Those parents desired to secure the best education for his or her children, and that's laudable. But that doesn't mean we ought to still block open use of these public schools.
In some methods, these people are such as the taxi companies in New York City. Taxi companies paid millions of dollars for \”medallions\” allowing them to operate taxis within the city. For years, these medallion owners fought off efforts to issue more medallions-and improve taxi service for countless New Yorkers-because they thought about being protected from competition. With the emergence of ride-sharing services such as Uber, the medallions lost much of their value. And taxi companies have attempted to use their political clout to bar such services and retain their protected position.
But the courts have said no. Buying a taxi medallion does not mean that you are protected from disruptive competition 'till the end of time. Likewise, buying a house that provides you preferential access to a public school does not mean that you'll be able to keep other families out forever.
If the courts turn to open up the general public schools, perhaps the most suitable ruling will be a narrow one that simply forbade school districts by using a homeowner child's address to find out their eligibility for any school inside the district. Rather than being forced to implement a particular court-endorsed remedy, districts would be liberated to experiment with different allocation techniques that don't depend on geography.
Some districts would create a system of school-site lotteries, like most charter schools use. Others would implement a centralized lottery such as the ones utilized in New Orleans, San Francisco, and Washington, D.C. You could even imagine districts trying a system according to \”first-come-first-serve,\” as La did for many years with highly coveted dual-language immersion programs. Each of these approaches has shortcomings and the possibility of abuse. But, unlike the current system, they are with different principle of equal opportunity.
Local school officials shouldn't, and do not, have unlimited power to determine who gets access to what schools. They're constrained by civil rights laws passed by Congress, and they are constrained through the founding documents of our democracy, both the state constitutions and the U.S. Constitution. Those constraints have to be enforced to visit a world in which a child's home address doesn't play this type of critical role in determining their destiny.