CLIMBING DOWN THE UP ESCALATOR:RECONCEPTUALIZING THE ROLE OF LOCAL CONTROL IN PUBLIC EDUCATION

Joseph MarinelliEDPP 5041: Politics of Centralization and Decentralization

May 12, 2015

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I. The Legal Framework and Fiscal Structure of American PublicSchools

Since the Constitution of the United States does not

explicitly mention education, public or private, the primary

responsibility to maintain and cultivate an educated citizenry

falls to the state level. Thus, every state constitution includes

an education provision outlining the duty of the state as public

education provider. Although no two state education provisions

are identical, they exhibit basic similarities primarily

influenced by the historical context surrounding the state’s

admittance into the Union. Focusing on this criterion of

historical context, Tractenberg groups state education provisions

according to four chronological categories or stages, the first

of which beginning in 1776. In particular, he identifies the

second period from 1835 to 1912, which he calls the “Foundational

stage,” as the most prolific time for state education provisions.

Over this 77-year span, the number of states doubled, and

Tractenberg claims the majority of these newly-admitted states

ratified constitutions containing education clauses that “placed

far more explicit responsibility on states and their legislatures

regarding the establishment, funding, and administration of free

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common school systems.”1 Today, most state education provisions

include some iteration of these three basic obligations. Offering

greater specificity to inter-state variations, Ziebarth compares

the actual content and language of all 50 state education

clauses, recording whether or not each clause accords the state

with the following responsibilities of public school governance:

establishment and maintenance of free system of public schools,

financial liability, separation of church and state, and creation

of “decision-making entities,” such as a state board of

education, state superintendent of education, local boards of

education, and local superintendents of education. Interestingly,

according to Ziebarth’s comparative analysis, Iowa is the only

state whose education clause does not contain explicit reference

to the establishment and maintenance of a free public schooling

system.2

While state governments have the clear legal obligation to

fulfill the stipulations of their constitutions’ education

1 Paul L. Tractenburg, “Education,” In State Constitutions for the Twenty-first Century, vol. 2, The Agenda of State Constitutional Reform (Albany: State University of New York Press, 2006), 242.

2 Todd Ziebarth, “State Constitutions and Public Education Governance,”Education Committee of the States, last modified October 2000, accessed April 2015, http://www.ecs.org/clearinghouse/17/03/1703.htm.

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clauses, states have typically delegated authority over matters

of public education to the local level. This autonomy officially

granted by state legislatures to local governments creates an

additional layer of legal complexity when considering as a whole

the traditionally decentralized operation of public schools

influenced by the unique social, political, and economic dynamics

of a given locality or larger metropolitan region. Despite long-

standing and widespread deference to local control of public

education, does the state still maintain ultimate legal

responsibility? To answer this weighty question, it is first

necessary to examine in detail the concepts of “local government”

and “local power” as specified by law.

In strictly legal terms, a “municipal corporation” is the

formal governing entity that operates autonomously at the local

level. Both cities and incorporated suburbs constitute municipal

corporations. In other words, the popularized difference between

central cities and outlying suburbs does not reflect a

differentiation in legal treatment; both are municipalities.

Consequently, they generally share the same fundamental municipal

powers to tax property, provide public services, and regulate

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land use. Yet as Briffault argues, in practice these legal powers

accorded to municipal governments favor “suburban” conditions and

financial interests, and thus place cities at a distinct

disadvantage. Simply put, “real local autonomy” requires “fiscal

self-sufficiency,” and legal localism assumes municipalities are

fiscally-independent governing entities – an assumption that

holds true for the majority of incorporated suburbs with a stable

population and tax base. For fiscally-dependent big cities

experiencing population decline, however, consistently inadequate

revenue streams compounded by private business disinvestment

largely negate their “real local autonomy.”3

Propelling this self-reinforcing cycle of declining

population and increasing fiscal strain occurring in metropolitan

central cities across the country, an inherently discriminatory

brand of localism has become firmly entrenched in state law and

American jurisprudence over the last 100 years. At the turn of

the twentieth century, Briffault argues the convergence of

industrialization, immigration and “liberalized” incorporation

laws passed by state legislatures gradually provided suburban

3 Richard Briffault, “Our Localism: Part II – Localism and Legal Theory,” Columbia Law Review 90, no. 2 (1990): 349-55.

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residential neighborhoods with strong financial incentives to

veto central city annexation and incorporate as separate, self-

governing municipalities. By the 1950s in the midst of the post-

war economic boom, a burgeoning “suburban” middle class wishing

to “escape from the politics, legislation and taxes of the

central city,” perceived the benefits of “suburban political

autonomy” to far exceed the costs of incorporation.4 In addition

to the subsequent economic segmentation exempting suburbanites

from having to pay increasing city taxes, the political

incorporation of outlying suburbs effectively established

territorial boundaries that corresponded to ethnic and racial

divides. Inter-local contracting of public services and special

service districts, or state-aided limited purpose governments

linking suburban municipalities for a specific purpose, preserved

local political autonomy while providing economies of scale

without “disrupting suburban class or ethnic homogeneity.”5

Furthermore, suburban municipalities preserved themselves as

“exclusively residential” through zoning laws, permitting local

residents “to reap the benefits of easy access to industrial or

4 Ibid., 362-64.5 Ibid., 376.

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commercial opportunities in other jurisdictions without having to

provide any land for locally undesirable land uses.”6 Following

the landmark Supreme Court decision in Village of Euclid v. Ambler Realty

Co.,7 suburban municipalities’ ability to exclude unwanted

commerce along with non-white demographics of the population

through prohibitive zoning laws was upheld in a series of zoning

cases in lower circuit, appellate and state supreme courts, of

which two are particularly important. In Duffcon Concrete Products, Inc.

v. Borough of Cresskill,8 the New Jersey Supreme Court ruled in favor

of Cresskill’s zoning ordinance that barred the development of

heavy industry within the borough. Similarly, in Valley View Village

Inc., v. Proffett, the Sixth Circuit Court of Appeals found it within

reason for “a residential village to pass an ordinance preserving

its residential character, so long as the business and industrial

needs of its inhabitants are supplied by other accessible areas

in the community at large.”9 In both decisions, the courts

justified their rulings in favor of the local ordinances by

arguing that no exclusion had actually occurred, so long as

6 Ibid., 369.7 272 U.S. 365 (1926).8 1 N.J. 509, 64 A.2d 347 (1949).9 221 F.2d 412, 418 (6th Cir. 1955).

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commercial development opportunities existed elsewhere in the

larger region. Yet, as Briffault points out, “the regional

perspective taken by the courts…is paradoxical,” because it

undermines a locality’s autonomy and authority to zone.10 Less

apparent, but equally important in these two cases is the

privileging of “residential character,” which basically insulated

local property values from becoming more affordable to less

affluent minority population groups.

To summarize, favorable state incorporation laws, inter-

local contracts and limited purpose governments, and judicial

deference to suburban zoning all contributed to making the

autonomous suburb fiscally and politically feasible, even

desirable. Eventually over time, the all-residential white

suburbia archetype acquired a mythos of having “natural” or

“organic” origins. Consequently, the “idealized residential

suburb as the paradigm locality” engendered the public belief

that the primary purpose of local government and local power was

“to protect the home and family.” The association of local

control with the “small, homogeneous residential community and

10 Briffault, “Localism and Legal Theory,” 369.

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the values of home and family,” – this definitively “American”

morality of localism, in turn, became the ideological foundation

upon which the fiscal structures of the traditional district-

based schooling model were built.11

As one way to fulfill the constitutional obligation of funding

a public schooling system, states authorize municipalities to

levy property taxes on local real estate as a major source of

revenue. In other words, local governments can only be

“champions” of family values if they maintain fiscal

independence. Here, suburban municipalities’ regulatory power to

zone is crucial, as it works to insulate and protect an affluent

locality’s high tax base capacity and low taxation rate. Such a

property-based system of school finance, Briffault argues, has

led to“interlocal inequalities in both the quality of local

schools and property taxation.”12 According to Orfield, property

taxation on average accounts for well over two-thirds of local

tax revenues. As a result, “local governments have a direct

incentive to favor profitable uses [of local property] over

11 Ibid., 382.12 Richard Briffault, “Our Localism: Part I – The Structure of Local

Government Law,” Columbia Law Review 90, no. 1 (1990): 22.

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others, and whenever possible, to exclude unprofitable uses such

as large apartments and moderate- to low-value homes.”13 From a

regional perspective, this competitive practice of “fiscal

zoning”14 largely determines the socioeconomic demographics of a

municipality relative to property values and employment

opportunities. By excluding apartments or any kind of subsidized

housing, local zoning works to prevent wealth redistribution, and

it guarantees “newcomers have wealth as great or greater than

current residents.”15 Despite most states implementing school

equalization programs and covering approximately 50 percent of

the costs associated with local public schools,16 a cyclic

deprivation of capital still persists, disproportionately

affecting concentrations of impoverished urban populations and

exacerbating gross disparities in wealth and income.

II. Does Fiscal Inequity in School Finance PerpetuateSocioeconomic and Racial Segregation?

13 Myron Orfield, American Metropolitics: The New Suburban Reality (Washington, D.C.: Brookings Institution Press, 2002), 91.

14 Ibid.15 Briffault, “The Structure of Local Government Law,” 22.16 Orfield, 86. This is the estimated percentage of state education aid

in 1996-97.

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The idealization of suburbia as the paradigm urban

community, together with underlying fiscal policies legitimizing

local control as political reality, has led to a trend of

regional fragmentation and embittered inter-local competition

across metropolitan areas. Within these larger regions, municipal

territorial boundaries and prohibitive local zoning laws parallel

the overlapping, discriminatory social constructs of

socioeconomic standing (SES) and race, seeking to preserve de

facto segregated residential housing patterns. According to

Massey, residential segregation by race plays a central role “in

concentrating poverty and creating the underclass.”17 Ingrained

into non-redistributive fiscal policies and practice, localist

ideology directly produces depressed, predominantly black, inner-

city ghettos standing as mirror opposites to the wealthiest,

predominantly white, suburban municipalities.18 Thus, local

17 Douglas S. Massey, “American Apartheid: Segregation and the Making of the Underclass,” American Journal of Sociology 96, no. 2 (1990): 330. Quantifyingthe relationship between racial segregation and poverty through the index of dissimilarity, Massey discounts the “out-migration of middle-class blacks fromthe ghetto” as a factor negatively impacting concentrations of urban poverty. Rather, he concludes that the “deleterious conditions” existing in many largeU.S. cities “occur through the joint effect of rising poverty and high levels of racial segregation” (351-52).

18 It is not the intention of this statement to validate the false notion of the “suburban monolith.” Rather, Orfield’s cluster analysis and typology of a fragmented suburbia speak to the immensely fragile social and

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government as the protector of family values – the “middle-class

residential community…a haven from the heartless political and

economic world beyond local borders”19 – manifests as the

preservation of socioeconomically and racially homogeneous

communities according to locality boundaries. If the U.S. housing

market were perfectly non-discriminatory, Massey argues, then

“the economic dislocations of the 1970s,” resulting from the

transition to a post-industrial society, “would not have produced

concentrated poverty or led to the emergence of a socially and

spatially isolated underclass.”20 In particular for blacks

considered part of this “American urban underclass,”21 increased

SES in terms of educational level and income does not correlate

to greater residential integration to the same extent as with

other minority populations.22 Drawing from housing audits

conducted by local fair housing organizations after the passage

of the Fair Housing Act as part of the 1968 Civil Rights Act,23

economic conditions of such a deeply-polarized American society (28).19 Briffault, “Localism and Legal Theory,” 382.20 Massey, 330.21 Ibid., 352.22 Nancy A. Denton and Douglas S. Massey, “Residential Segregation of

Blacks, Hispanics, and Asians By Socioeconomic Status and Generation,” Social Science Quarterly 69, no. 4 (1988): 814.

23 42 U.S.C. § 3601 (1968).

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Massey and Denton found that “systematic housing

discrimination”24 occurred well into the 1980s. This lack of

spatial mobility for blacks despite socioeconomic gains indicates

“the continued salience of race in American society and

suggest[s] that race remains the dominant organizing principle of

U.S. Urban housing markets.”25

Due to explicit relationship between residential housing

patterns and local public schools, the predominance of race in

determining housing market demands directly affects the racial

composition of student bodies, which, in turn, influences

parents’ and residents’ general perceptions about schools and the

larger communities they serve. Orfield contends that racial data

analysis of elementary schools indicates that once a minority

school population reaches a “threshold level” of 10 to 20

percent, segregation rapidly occurs.26 He argues the impetus for

such a dramatic transition is “white homebuyers, perceiving the

community to be in decline, [who] choose not to buy there, and

24 Douglas S. Massey and Nancy A. Denton, “The Continuing Causes of Segregation,” in American Apartheid: Segregation and the Making of the Underclass (Cambridge: Harvard University Press, 1993), 99.

25 Ibid., 110.26 Orfield, 10.

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before long, whites already living in the neighborhood move

away.”27 As a result of this disinvestment by white homeowners,

housing prices plummet, and “earlier perceptions become

reality.”28 In a system of public schooling reliant on property

taxes and attendance zones, residential segregation inevitably

leads to segregated schools making concentrated poverty nearly

inseparable from racial discrimination.

Furthermore, even in the absence of prevailing racist public

sentiment or individual acts of explicit discrimination, the

perverse values of local control, deeply-embedded within the

fiscal structures of a decentralized schooling system, implicitly

incentivize race- and class-based segregation and work to sustain

it. Critical race theorist Ladson-Billings argues school funding

disparities are “a function of institutional and structural

racism,”29 built into the localist ideology of conjoint self-

interest among residents to protect against “other” lifestyles.

Institutional racism redoubles concentrated urban minority

27 Ibid., 11.28 Ibid.29 Gloria Ladson-Billings. “Just what is critical race theory and

what’s it doing in a nice field like education?” Qualitative Studies in Education 11, no. 1 (1998): 20.

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poverty, creating “a cycle of low educational achievement,

underemployment and unemployment, and standard housing.”30 As

articulated in most state education clauses, the primary purpose

of publicly-funded education is the “Jeffersonian Principle” –

namely, “to prepare society’s children to be functioning members

of the state.”31 Albeit vague, Jefferson clearly viewed the

efficacy of a participatory democracy as contingent upon an

educated and informed citizenry. Yet, Massey maintains that

concentrated poverty in minority neighborhoods “inevitably

concentrates deprivation in schools,”32 putting high-poverty

students at a distinct academic disadvantage relative to their

low-poverty peers. If the overall health and functioning of

society heavily relies on a free system of public schooling that

must provide truly equal educational opportunity in terms of

adequacy and accessibility, then the ideal of local control first

must be scrutinized, re-conceptualized, and ultimately

discredited from its historically privileged status.

30 Ibid.31 Julie K. Underwood, “School Finance Adequacy as Vertical Equity,” U.

Mich. J.L. Reform 28, no. 3 (1994-95): 514.32 Massey, 350.

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Helpful to unpack the logical fallacies of localism as a

political and moral ideology, Briffault summarizes three

interwoven legal concepts of local government in tension with one

another: “local government as arm of the state; the ‘city’ idea

of local government as a diverse, urban polity – a state in

microcosm; and the suburban notion of local government as the

site, and virtual extension, of home and family.”33 Two

predominant theories that value and defend local power, the

political participation and the economic efficiency argument,

then draw from these three concepts of local government in an

attempt to construct independent, but inter-related normative

cases for greater local autonomy. To analyze the first argument

that claims local control stimulates political participation,

Briffault uses as an example the work of Frug,34 who’s ideas

build from the first two concepts of local government as arm of

the state and as a state in microcosm. Briffault interprets Frug

to suggest active public participation as “a way of saving the

civic republican tradition from an elite-dominated, special-

33 Briffault, “Localism and Legal Theory,” 392.34 Gerald E. Frug, “The City as a Legal Concept,” Harvard Law Review 93,

no. 6 (1980): 1057-1154, http://www.jstor.org/stable/1340702.

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interest pluralism.”35 According to Frug, effective public

participation requires “face-to-face interaction,” which can

occur only on a “small-scale” conducive to facilitating a feeling

community. Briffault deems this link between community and local

government “tenuous” at best. Within an increasingly mobile

society, “people are regularly involved in more than one locality

in the course of their daily lives.”36 To analyze the second

argument that purports local control is economically efficient,

Briffault discusses Tiebout’s seminal work,37 which emphasizes

the responsiveness, and thus discretionary power of local

government to respond to the multiple preferences and desires of

the consumer-voter in contrast to larger, centralized government.

Tiebout appeals mainly to the concept of local government as

extension of home life, as he values above all else “consumer-

voter mobility,” the individual’s ability to choose from a

“multiplicity of local governments,” thereby generating low-cost,

highly-efficient, homogeneous localities.38 Briffault criticizes

35 Briffault, “Localism and Legal Theory,” 395.36 Ibid., 412-13.37 Charles M. Tiebout, “A Pure Theory of Local Expenditures,” Journal of

Political Economy 64, no. 5 (1956): 416-24, http://www.jstory.org/stable/1826343.38 Briffault, “Localism and Legal Theory,” 400-02.

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Tiebout’s theory for “its exclusive reliance on mobility,” and

its inaccurate treatment of citizens as purely transient

consumer-voters. Because the economic theory misconstrues the

relationship between local government and its constituents, it

fails to provide a “normative argument argument for local

autonomy.”39

Taken together, the two theories in support of localism

reveal a fundamental tension between the “reduction of

externalities and maximization of internal efficiency.”40

Although politically autonomous localities can limit

externalities by providing economies of scale through inter-local

contracts and limited purpose governments, Briffault states in

the case of housing, schools and other services that have the

most significant impact on a locality’s wealth or social status,

“interlocal cooperation is highly unusual and more commonly the

product of state or federal compulsion than voluntary local

action.”41 With local governments having little to no financial

incentive to consider negative externalities imposed on

39 Ibid., 419.40 Ibid., 428.41 Ibid., 431-32.

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neighboring localities as a result of their own decisions, both

political and economic advocates of local control downplay the

significance of the broader regional perspective of increasing

wealth disparity and polarization. Rather than offer hope for

remedial action or structural legislative reform, a blatantly

regressive, deferential commitment to localism exacerbates

socioeconomic and racial segregation.

III. Reconceptualizing Local Control and Public Education inTerms of Capital

Local control and autonomy in its current form neither

serves the interest of the “community” at large, nor does it

build a sustainable community model. Rather, decentralized power

favors the interests of capital preservation. But what exactly is

capital? Who is properly called a capitalist?

According to early political economist Adam Smith, “whatever

a person saves from his revenue he adds to his capital.”42 In

this sense, capital constitutes something different than income

or revenue – a kind of savings or “stock” put aside for later

consumption or investment. Still, an individual’s income or

42 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), ed. Edwin Cannan (London: Methuen & Co., Ltd., 1904), vol. I, bk. II, chap. 3:15.

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revenue comprises the replenishing source of this cache. A

century later, Fisher criticizes Smith for separating one’s

savings into two parts: static capital and gradual, successive

instances of revenue injection. In contrast, Fisher maintains

that “wealth” consists of “stock” and “flow,” where “the former…

is capital, the latter, income and outgo, production and

consumption.”43 Fisher basically introduces the concept of

capital in relation to interest – the idea of “rate of flow” as

proportional to “value of flow.”44 In short capital and income

are “different aspects of commodity in time.”45 Placed in the

more detailed context of “cash flow,” perhaps this understanding

of capital gets to the root of the idea that “one has to spend

money to make money.” But how then does one acquire money if one

has no money to spend in the first place? How does one develop or

establish capital from something other than capital in a

capitalist society? Any form of capital must be stored in

something (in)tangible, not simply for the sake of being able to

exchange that which stores it (e.g. bartering; purchasing). But

43 Irving Fisher, “What is Capital?” The Economic Journal 6, no. 24 (1896):514.

44 Ibid.45 Ibid., 516.

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it its this general “economic object” that contains, limits, and

transforms capital from the conceptual to the actual. According

to Fisher, “objects of capital are antecedent to the value of

those objects, as is obvious from the fact that we cannot express

the value without reference to the objects themselves, concretely

described and measured.”46 In essence, the viability of

capitalism as an economic system depends upon the individual

capitalist actor, who by perceiving value in certain objects or

assets, actualizes capital into “transactional liquidity.”47

Within a given transaction, the value of capital itself remains

unchanged; it is value. Instead, what is affected is the

representational medium of value through which the exchange

occurs.

At the core of American citizenship lies property ownership,

specifically landed property. Historically, through the buying,

selling, and developing of real estate, a distinct social strata

of land-owning capitalists emerged as they simultaneously

accumulated and produced wealth, driving the American economy as

46 Ibid., 530.47 Glenn Stevens, “Liquidity and the lender of the last resort”

(lecture, Australian National University, Canberra, April 15, 2008), 2, http://www.bis.org/review/r080415b.pdf.

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it transition from agricultural to industrial. As Ladson-Billings

points out, “property ownership as a prerequisite to citizenship

was tied to the British notion that only people who owned the

country, not merely those who lived in it were eligible to make

decisions about it.”48 For the greater part of two centuries,

however, property ownership and its concomitant political power

enjoyed by the land-owning capitalist class was restricted, with

rare exception, to white European men. Naturally, those at the

opposite end of the social spectrum, namely enslaved Africans,

owned neither land nor anything else considered “property.”

Rather, they were property themselves, de-humanized into means of

production as economic objects of invested capital. Larson-

Billings comments, “African Americans, thus, represent a unique

form of citizen in the USA – property transformed into

citizen.”49 But extending beyond the formal ends of both

institutionalized slavery and legal state-mandated racial

segregation, the “more pernicious and long lasting”

countervailing message of race-based slavery and de-humanization

remains structural intact – “the construction of whiteness as the

48 Ladson-Billings, 15.49 Ibid., 16.

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ultimate property.”50 Although this was most explicit, and

perhaps most immediate in terms of economic impact, with regard

to real estate or landed property ownership, the generalizable

act of possessing, “necessary to lay the basis for rights in

property – was defined to include only the cultural practices of

whites.”51 In other words, form the founding the country, the

privilege of whiteness was implicit within the legal-

constitutional framework from which American capitalism grew.

Hence, Ladson-Billings and Tate developed a Critical Race Theory

wherein themes of race, property, and capital intersect to create

a lens through which to analyze the combined social, economic,

and political implications of public education in the legal

context of local autonomy and control.

Over the course of American history, but particularly during

and in between the transitional periods of rapid

industrialization beginning in the 1890s and rapid post-

industrialization during the 1970s, an unquestioned deference to

localism has shaped legislation and subsequent legal

50 Gloria Ladson-Billings and William F. Tate IV, “Toward a Critical Race Theory of Education,” Teachers College Record 97, no. 1 (1995): 58.

51 Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1721, http://www.jstor.org/stable/1341787.

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interpretation by the judiciary. Critically analyzed, however,

proponent theories of localism fail to justify their claims that

politically powerful and autonomous local governments engender

strong community life and democratic participation, and lead to

greater regional efficiency through inter-local competition and

cooperation – the primary means to accomplish these goals being

decentralized public education and local land-use regulation.

Rather, localist ideology distorts the role of local government

to operate according to the entangled social and financial

interests of those with capital at the expense of those without

it. In general, an entrenched localism redirects public attention

from this distortion to an empty, archaic morality of racially-

biased family values and esoteric democratic principles; it

preserves the financial structures that support a subdued social

hegemony of sorts. In short, the endgame of traditional localism

is the erosion of community, a self-consuming conflict between

those who lack the tools to realize the ideology in which are

enmeshed. The linchpin for changing this cycle of generational

capital deprivation is an equal opportunity to state-funded,

adequate public schooling that imparts students with the tools,

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resources, and ultimately, social capital to break this

oppressive cycle. The method only way to achieve this is to sever

the fiscal structure that makes the quality of education a direct

function of a locality’s net capital assets and collective

socioeconomic status. The question then becomes whether to pursue

this structural reform through legislation or litigation.

IV. The Effectiveness of School Finance Litigation After Brown v.Board of Education52

Brown I simply scraped the surface of the metaphorical

iceberg that is structural racism. The Supreme Court condemned

state-sanctioned racial segregation not on the basis of

underlying funding disparities, but on the grounds that “the evil

of state-mandated segregation was the conveyance of a sense of

unworthiness and inferiority.”53 Similarly, Wechsler questions

the decision claiming the issue of race-based segregation brought

before the Court in Brown I was not a matter of discrimination,

per se, but “the denial by the state of freedom to associate”

impinging equally upon all groups involved.54 By interpreting the

52 347 U.S. 483 (1954).53 Harris, 1750.54 Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,”

Harvard Law Review 73, no. 1 (1959): 33-34, http://www.jstor.org/stable/1337945.

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question of legalized racial segregation as such a neutral matter

of association, Harris argues that Wechsler, “ignores the crucial

fact that the system of white supremacy was built not merely to

achieve race segregation, but also to construct systematic

disadvantage.”55 Nonetheless, substantive unequal conditions

persisted despite the Court’s decisions in Brown. While the

landmark case served as the “ideological foundation”56 foundation

for later school finance cases, litigants pursued the path of

exposing the flaws in the existing structure of school finance,

first in relation to the Fourteenth Amendment, and then to state

constitutions’ education clauses. In doing so, plaintiffs

directly confronted entrenched public attitudes of local control.

Underwood divides school finance litigation into three

“waves of reform”57 as follows: the first wave of litigation

appealing to equal protection and strict scrutiny, beginning with

Serrano v. Priest and ending with San Antonio v. Rodriguez;58 the second

wave focusing on equal resources according to state

55 Harris, 1751.56 John Dayton and Anne Proffitt Dupre, “School Funding Litigation:

Who’s Winning the War?” Vand. L. Rev. 57, no. 6 (2004): 2358.57 Underwood, 513.58 487 P.2d 1241 (Cal. 1971); 411 U.S. 1 (1973).

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constitutional provisions; the third wave shifting from equal

spending to a “student-oriented focus”59 and the concept of a

minimum adequate education dependent upon individual student

need. While in Serrano the California Supreme Court ruled in favor

of the plaintiffs who successfully argued deprivation of equal

protection under the Fourteenth Amendment, the victory was short-

lived with the ruling of the United States’ Supreme Court two

years later in Rodriguez. Whereas the “Serrano principle” of fiscal

neutrality stipulated that funding “must be a function of the

wealth of the state as a whole,”60 in Rodriguez the Court found no

constitutional justification for treating education as a

“fundamental right,” thus not requiring the application of strict

scrutiny to state public school funding systems. The start of the

modern era of school funding litigation in the early 1970s marks

the beginning of the still ongoing debate regarding the

relationship between educational expenditures and educational

quality. But is it the role of the judicial branch to determine

the nature of this relationship? Rebell stresses that litigation,

regardless of how adaptable or innovative in response to prior

59 Underwood, 513.60 Dayton and Dupre, 2359-60.

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precedent, can only make a certain amount of progress due to “the

judicial inclination…to leave the formulation of a remedy up to

the same legislative and executive leadership that failed to

address the problem in the first place.”61 As a way to move past

to the apparent stalemate between courts and state legislatures,

Rebell argues that “civic dialogue…needs to be undertaken at all

levels,”62 in an honest and authentic manner. Echoing this call

for greater dialogue, Dayton states that any kind of resolution

to inter-local funding disparities “must be consistent with the

will of the people.”63 What it comes down to is communication in

tandem with community. At the same time fitting and troubling,

humans living in community and communicating with each other

serves as the cornerstone of any effective educational

institution.

V. Concluding Thoughts

In short, the way we educate, the way we pay for it, the way

we conceive of the word “education” and its purpose is

61 Michael A. Rebell, “Fiscale Equity in Education: Deconstructing The Reigning Myths and Facing Reality,” N.Y.U. Rev. L. & Soc. Change 21, no. 4 (1994-95):718.

62 Ibid., 722.63 John Dayton, “When All Else Has Failed: Resolving the School Funding

Problem,” B.Y.U. Educ. & L.J. 1995, no. 1 (1995): 19, http://digitalcommons.law.byu.edu/elj/vol1995/iss1/2.

28

unsustainable, and the current fragility of socioeconomic

conditions reflect this. How can a seemingly viable and

productive national economic system like American capitalism

produce so much wealth – the highest global GDP 64– yet,

distribute it to so very few people? How can 400 Americans

possess more wealth than than the bottom half of all American

earners – 150 million people?65 These 400 Americans comprise a

combined net worth of $2.29 trillion, and Bill Gates, the richest

American living today, is worth $80.3 billion.66 Meanwhile,

approximately 15 percent, or 45 million Americans, were

considered below the poverty line in 2013.67 The 2015 poverty

guideline for a single person living in the 48 contiguous states

and Washington, D.C., is $11,770.68 Albeit a rough comparison, in

theory, a single American living in poverty who earns $11,770 in

64 The World Bank, “United States: Data,” accessed May 2015, http://data.worldbank.org/country/united-states.

65 Robert Reich, Beyond Outrage: What Has Gone Wrong with Our Economy and Our Democracy, and How to Fix It (New York: Vintage Books, 2012), xiii.

66 Kerry A. Dolan and Luisa Kroll, eds., “The Richest People in America– Forbes,” last modified September 29, 2014, accessed May 2015, http://www.forbes.com/forbes-400/.

67 United States Census Bureau, “About Poverty – Highlights,” last modified September 16, 2014, accessed May 2015, http://www.census.gov./hhes/www/poverty/about/overview/.

68 U.S. Department of Health & Human Services, “2015 Poverty Guidelines,” accessed May 2015, http://aspe.hhs.gov/poverty/15poverty.cfm.

29

annual income earns less than 0.000015 percent of the net worth

of Gates, who has enjoyed the title of richest American for 21

consecutive years.

The point is these wealth disparities are simply staggering.

How can any representative or public official at the local,

state, or federal level believe that the country spends too much

on education when the Department of Education allocates only

$67.1 billion (a little more than 80 percent of Gates’ worth) in

discretionary appropriations?69 Regardless, it is not the amount

of spending; it is the convoluted fiscal structure through which

funding gets appropriated. As Rebell points out, the “Comer

Model,” developed by James Comer in New Haven public schools

proves that “infusions of large sums of money, if used well, can

make dramatic differences in the education of poor children.”70

Perhaps then, a new kind of grassroots localism needs to

emerge – a re-conceptualized localism liberated from the

traditional ideology that actually takes into account the larger

regional effects of local decisions, an authenticated localism

69 U.S. Department of Education, “Budget Office,” last modified February 2, 2015, accessed May 2015, http://www2.ed.gov/about/overview/budget/index.html.

70 Rebell, 698.

30

that builds community and social capital. The first step in

moving toward a revised, post-modern localism is a revised

community model that depends on a system of local public

education, but that is fiscally independent of geographical

locale. In this digital age, a given individual belongs to a

multiplicity of communities defined in terms more significant

than mere territorial boundaries. At its worst, our current

paradigm of public education fails miserably to provide necessary

support and community-building for a large majority of Americans,

particularly in concentrated areas of black urban poverty. The

recent protests that have occurred in metropolitan areas across

the country testify to intensifying feelings of disenchantment

and disenfranchisement. At its best, our current model of

education, to borrow from Gardner, prepares students for

“neighborly morality (and for the role of good person) but not

for the ethics implied in the role of citizen in a cyber-

community.”71 Changing the way we think about education,

reforming the way pay for public schools – these are just small

71 Howard Gardner, Truth, Beauty, and Goodness Reframed: Educating for the Virtues in the Twenty-First Century (New York: Basic Books, 2011), 103.

31

steps in the right direction toward a much-needed social

transformation.

32

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