Schools, race, and money

Yale Law Journal

Volumn 109, Issue 2, 1999, Pages 249-316

  Ryan, James E ^a  

^a NONE

Author keywords

[No Author keywords available]

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EID: 0041032189     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797490     Document Type: Article

References (420)

1. Milliken v. Bradley (Milliken I), 418 U.S. 717, 814-15 (1974) (Marshall, J., dissenting).
2. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 1 (1993) (observing that the term "segregation" disappeared from the public vocabulary in the 1970s and 1980s); James S. Kunen, The End of Integration, TIME, Apr. 29, 1996, at 39, 39-40; Glenn C. Loury, Integration Has Had Its Day, N.Y. TIMES, Apr. 23, 1997, at A23.
3. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 1 (1993) (observing that the term "segregation" disappeared from the public vocabulary in the 1970s and 1980s); James S. Kunen, The End of Integration, TIME, Apr. 29, 1996, at 39, 39-40; Glenn C. Loury, Integration Has Had Its Day, N.Y. TIMES, Apr. 23, 1997, at A23.
4. See, e.g., DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 1 (1993) (observing that the term "segregation" disappeared from the public vocabulary in the 1970s and 1980s); James S. Kunen, The End of Integration, TIME, Apr. 29, 1996, at 39, 39-40; Glenn C. Loury, Integration Has Had Its Day, N.Y. TIMES, Apr. 23, 1997, at A23.
5. Consider, for example, the recent Presidential Commission on Race. The Commission met initially with some fanfare, quickly took on a tired feel, eventually released a report that apparently received little attention, and has since disbanded. See, e.g., Kevin Merida, A Short Leash for Clinton's Race Commission, EMERGE, Jan. 31, 1998, at 24, available in 1998 WL 11360589; Rhetoric on Race, AUSTIN-AM. STATESMAN, Sept. 20, 1998, at J2; Richard Salvatierra, If Race Commission Pushes Quotas, Who Needs It?, TUCSON CITIZEN, Oct. 23, 1998, available in 1998 WL 13141687; George Wilson, Playing with the Race Card, 34 WASH. INFORMER, Apr. 27, 1998, at 13, available in 1998 WL 11470855.
6. Consider, for example, the recent Presidential Commission on Race. The Commission met initially with some fanfare, quickly took on a tired feel, eventually released a report that apparently received little attention, and has since disbanded. See, e.g., Kevin Merida, A Short Leash for Clinton's Race Commission, EMERGE, Jan. 31, 1998, at 24, available in 1998 WL 11360589; Rhetoric on Race, AUSTIN-AM. STATESMAN, Sept. 20, 1998, at J2; Richard Salvatierra, If Race Commission Pushes Quotas, Who Needs It?, TUCSON CITIZEN, Oct. 23, 1998, available in 1998 WL 13141687; George Wilson, Playing with the Race Card, 34 WASH. INFORMER, Apr. 27, 1998, at 13, available in 1998 WL 11470855.
7. Consider, for example, the recent Presidential Commission on Race. The Commission met initially with some fanfare, quickly took on a tired feel, eventually released a report that apparently received little attention, and has since disbanded. See, e.g., Kevin Merida, A Short Leash for Clinton's Race Commission, EMERGE, Jan. 31, 1998, at 24, available in 1998 WL 11360589; Rhetoric on Race, AUSTIN-AM. STATESMAN, Sept. 20, 1998, at J2; Richard Salvatierra, If Race Commission Pushes Quotas, Who Needs It?, TUCSON CITIZEN, Oct. 23, 1998, available in 1998 WL 13141687; George Wilson, Playing with the Race Card, 34 WASH. INFORMER, Apr. 27, 1998, at 13, available in 1998 WL 11470855.
8. Consider, for example, the recent Presidential Commission on Race. The Commission met initially with some fanfare, quickly took on a tired feel, eventually released a report that apparently received little attention, and has since disbanded. See, e.g., Kevin Merida, A Short Leash for Clinton's Race Commission, EMERGE, Jan. 31, 1998, at 24, available in 1998 WL 11360589; Rhetoric on Race, AUSTIN-AM. STATESMAN, Sept. 20, 1998, at J2; Richard Salvatierra, If Race Commission Pushes Quotas, Who Needs It?, TUCSON CITIZEN, Oct. 23, 1998, available in 1998 WL 13141687; George Wilson, Playing with the Race Card, 34 WASH. INFORMER, Apr. 27, 1998, at 13, available in 1998 WL 11470855.
9. See, e.g., STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION, INDIVISIBLE (1997); Loury, supra note 2. The phrase "benign neglect" appeared in a 1970 memorandum that Daniel Patrick Moynihan wrote to President Nixon, when Moynihan was serving as Assistant Secretary of Labor. Moynihan suggested that the federal government could adopt more of a hands-off policy toward the enforcement of civil rights laws because of the educational gains that African Americans had made. See Charles Sumner Stone, Jr., Thucydides' Law of History, or from Kerner, 1968 to Hacker, 1992, 71 N.C. L. REV. 1711, 1719 (1993); James Dao, At Career's End, Moynihan Reflects on Life of Public Service, TIMES UNION, Nov. 15, 1998, at F3.
10. See, e.g., STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION, INDIVISIBLE (1997); Loury, supra note 2. The phrase "benign neglect" appeared in a 1970 memorandum that Daniel Patrick Moynihan wrote to President Nixon, when Moynihan was serving as Assistant Secretary of Labor. Moynihan suggested that the federal government could adopt more of a hands-off policy toward the enforcement of civil rights laws because of the educational gains that African Americans had made. See Charles Sumner Stone, Jr., Thucydides' Law of History, or from Kerner, 1968 to Hacker, 1992, 71 N.C. L. REV. 1711, 1719 (1993); James Dao, At Career's End, Moynihan Reflects on Life of Public Service, TIMES UNION, Nov. 15, 1998, at F3.
11. See, e.g., STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION, INDIVISIBLE (1997); Loury, supra note 2. The phrase "benign neglect" appeared in a 1970 memorandum that Daniel Patrick Moynihan wrote to President Nixon, when Moynihan was serving as Assistant Secretary of Labor. Moynihan suggested that the federal government could adopt more of a hands-off policy toward the enforcement of civil rights laws because of the educational gains that African Americans had made. See Charles Sumner Stone, Jr., Thucydides' Law of History, or from Kerner, 1968 to Hacker, 1992, 71 N.C. L. REV. 1711, 1719 (1993); James Dao, At Career's End, Moynihan Reflects on Life of Public Service, TIMES UNION, Nov. 15, 1998, at F3.
12. See, e.g., STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION, INDIVISIBLE (1997); Loury, supra note 2. The phrase "benign neglect" appeared in a 1970 memorandum that Daniel Patrick Moynihan wrote to President Nixon, when Moynihan was serving as Assistant Secretary of Labor. Moynihan suggested that the federal government could adopt more of a hands-off policy toward the enforcement of civil rights laws because of the educational gains that African Americans had made. See Charles Sumner Stone, Jr., Thucydides' Law of History, or from Kerner, 1968 to Hacker, 1992, 71 N.C. L. REV. 1711, 1719 (1993); James Dao, At Career's End, Moynihan Reflects on Life of Public Service, TIMES UNION, Nov. 15, 1998, at F3.
13. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY (1996); Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation To Replicate the Disease?, 78 CORNELL L. REV. 1 (1992); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993). Bell's famous article, Serving Two Masters, 85 YALE L.J. 470 (1975), was one of the earliest calls to reexamine the goals and implementation of desegregation. See also Caroline Hendrie, Pressure for Community Schools Grows as Court Oversight Wanes, EDUC. WK., June 17, 1998, at 23 (quoting the president of the National Urban League affiliate as saying of the return to de facto neighborhood schools in Oklahoma City, "I don't have a big concern about the return to neighborhood schools. . . . For me, the real concern is that children get a good education wherever they go to school.").
14. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY (1996); Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation To Replicate the Disease?, 78 CORNELL L. REV. 1 (1992); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993). Bell's famous article, Serving Two Masters, 85 YALE L.J. 470 (1975), was one of the earliest calls to reexamine the goals and implementation of desegregation. See also Caroline Hendrie, Pressure for Community Schools Grows as Court Oversight Wanes, EDUC. WK., June 17, 1998, at 23 (quoting the president of the National Urban League affiliate as saying of the return to de facto neighborhood schools in Oklahoma City, "I don't have a big concern about the return to neighborhood schools. . . . For me, the real concern is that children get a good education wherever they go to school.").
15. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY (1996); Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation To Replicate the Disease?, 78 CORNELL L. REV. 1 (1992); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993). Bell's famous article, Serving Two Masters, 85 YALE L.J. 470 (1975), was one of the earliest calls to reexamine the goals and implementation of desegregation. See also Caroline Hendrie, Pressure for Community Schools Grows as Court Oversight Wanes, EDUC. WK., June 17, 1998, at 23 (quoting the president of the National Urban League affiliate as saying of the return to de facto neighborhood schools in Oklahoma City, "I don't have a big concern about the return to neighborhood schools. . . . For me, the real concern is that children get a good education wherever they go to school.").
16. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY (1996); Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation To Replicate the Disease?, 78 CORNELL L. REV. 1 (1992); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993). Bell's famous article, Serving Two Masters, 85 YALE L.J. 470 (1975), was one of the earliest calls to reexamine the goals and implementation of desegregation. See also Caroline Hendrie, Pressure for Community Schools Grows as Court Oversight Wanes, EDUC. WK., June 17, 1998, at 23 (quoting the president of the National Urban League affiliate as saying of the return to de facto neighborhood schools in Oklahoma City, "I don't have a big concern about the return to neighborhood schools. . . . For me, the real concern is that children get a good education wherever they go to school.").
17. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY (1996); Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation To Replicate the Disease?, 78 CORNELL L. REV. 1 (1992); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993). Bell's famous article, Serving Two Masters, 85 YALE L.J. 470 (1975), was one of the earliest calls to reexamine the goals and implementation of desegregation. See also Caroline Hendrie, Pressure for Community Schools Grows as Court Oversight Wanes, EDUC. WK., June 17, 1998, at 23 (quoting the president of the National Urban League affiliate as saying of the return to de facto neighborhood schools in Oklahoma City, "I don't have a big concern about the return to neighborhood schools. . . . For me, the real concern is that children get a good education wherever they go to school.").
18. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY (1996); Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation To Replicate the Disease?, 78 CORNELL L. REV. 1 (1992); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993). Bell's famous article, Serving Two Masters, 85 YALE L.J. 470 (1975), was one of the earliest calls to reexamine the goals and implementation of desegregation. See also Caroline Hendrie, Pressure for Community Schools Grows as Court Oversight Wanes, EDUC. WK., June 17, 1998, at 23 (quoting the president of the National Urban League affiliate as saying of the return to de facto neighborhood schools in Oklahoma City, "I don't have a big concern about the return to neighborhood schools. . . . For me, the real concern is that children get a good education wherever they go to school.").
19. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995); Shaw v. Reno, 509 U.S. 630, 642-43 (1993); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494-95 (1989); id. at 520 (Scalia, J., concurring); see also Adarand, 515 U.S. at 239 (Scalia, J., concurring) ("In my view, government can never have a 'compelling interest' in discriminating on the basis of race to 'make up' for past racial discrimination in the opposite direction."). Justice Thomas has gone so far as to suggest that affirmative action is as immoral as laws that intentionally discriminate against blacks. See id. at 240 (Thomas, J., concurring) ("I believe that there is a 'moral [and] constitutional equivalence' . . . between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality." (quoting id. at 243 (Stevens, J., dissenting))).
20. See Missouri v. Jenkins, 515 U.S. 70 (1995); Freeman v. Pitts, 503 U.S. 467 (1992); Board of Educ. v. Dowell, 498 U.S. 237 (1991).
21. "Poor" is in quotation marks because school finance litigation typically seeks to obtain more resources for property-poor school districts rather than for poor students; although property-poor school districts are often populated by poor students, there is not a perfect correlation. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 57 (1973) (noting that "studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts" (footnote omitted)).
22. For example, David Long, an attorney who has been involved in more than 10 school finance cases, suggested when interviewed that focusing on race in these cases would have been too limited and that the goals of school finance litigation were broader and more inclusive. Telephone Interview with David Long (May 12, 1998).
23. See James Gordon Ward, Implementation and Monitoring of Judicial Mandates: An Interpretive Analysis, in THE IMPACTS OF LITIGATION AND LEGISLATION ON PUBLIC SCHOOL FINANCE 225, 233 (Julie K. Underwood & Deborah A. Verstegen eds., 1990).
24. See RICHARD F. ELMORE & MILBREY WALLIN MCLAUGHLIN, REFORM AND RETRENCHMENT: THE POLITICS OF CALIFORNIA SCHOOL FINANCE REFORM 35 (1982) (describing the goals and motivation of early school finance advocates). Derrick Bell, for example, worked as an attorney on numerous desegregation cases before working on one of the earliest school finance cases, Serrano v. Priest, 487 P.2d 1241 (Cal. 1971). See ELMORE & MCLAUGHLIN, supra, at 35; see also Bell, supra note 5, at 472 n.5 (noting that Bell "was a staff attorney specializing in school desegregation cases with the NAACP Legal Defense Fund from 1960 to 1966").
25. See RICHARD F. ELMORE & MILBREY WALLIN MCLAUGHLIN, REFORM AND RETRENCHMENT: THE POLITICS OF CALIFORNIA SCHOOL FINANCE REFORM 35 (1982) (describing the goals and motivation of early school finance advocates). Derrick Bell, for example, worked as an attorney on numerous desegregation cases before working on one of the earliest school finance cases, Serrano v. Priest, 487 P.2d 1241 (Cal. 1971). See ELMORE & MCLAUGHLIN, supra, at 35; see also Bell, supra note 5, at 472 n.5 (noting that Bell "was a staff attorney specializing in school desegregation cases with the NAACP Legal Defense Fund from 1960 to 1966").
26. See RICHARD F. ELMORE & MILBREY WALLIN MCLAUGHLIN, REFORM AND RETRENCHMENT: THE POLITICS OF CALIFORNIA SCHOOL FINANCE REFORM 35 (1982) (describing the goals and motivation of early school finance advocates). Derrick Bell, for example, worked as an attorney on numerous desegregation cases before working on one of the earliest school finance cases, Serrano v. Priest, 487 P.2d 1241 (Cal. 1971). See ELMORE & MCLAUGHLIN, supra, at 35; see also Bell, supra note 5, at 472 n.5 (noting that Bell "was a staff attorney specializing in school desegregation cases with the NAACP Legal Defense Fund from 1960 to 1966").
27. See, e.g., AMY STUART WELLS & ROBERT L. CRAIN, STEPPING OVER THE COLOR LINE: AFRICAN-AMERICAN STUDENTS IN WHITE SUBURBAN SCHOOLS 336 (1997). In their case study of the St. Louis desegregation plan, which sends thousands of minority students from the city to suburban schools, Wells and Crain report that "[t]ime and time again educators, policy makers, parents, students, and 'people on the streets' of metropolitan St. Louis told us that the millions of dollars the state pays to bring nearly 13,000 African-American students to suburban schools would be better spent 'fixing up' the city schools." Id.; see also STEVE FARKAS & JEAN JOHNSON, PUBLIC AGENDA, TIME TO MOVE ON: AFRICAN-AMERICAN AND WHITE PARENTS SET AN AGENDA FOR PUBLIC SCHOOLS 10 (1998) (reporting results of a survey conducted by Public Agenda and the Public Education Network that indicated that African-American parents, by an 80% to 90% margin, "say the higher priority for the nation's schools should be to raise academic standards and achievement rather than focus on achieving more diversity and integration").
28. See, e.g., AMY STUART WELLS & ROBERT L. CRAIN, STEPPING OVER THE COLOR LINE: AFRICAN-AMERICAN STUDENTS IN WHITE SUBURBAN SCHOOLS 336 (1997). In their case study of the St. Louis desegregation plan, which sends thousands of minority students from the city to suburban schools, Wells and Crain report that "[t]ime and time again educators, policy makers, parents, students, and 'people on the streets' of metropolitan St. Louis told us that the millions of dollars the state pays to bring nearly 13,000 African-American students to suburban schools would be better spent 'fixing up' the city schools." Id.; see also STEVE FARKAS & JEAN JOHNSON, PUBLIC AGENDA, TIME TO MOVE ON: AFRICAN-AMERICAN AND WHITE PARENTS SET AN AGENDA FOR PUBLIC SCHOOLS 10 (1998) (reporting results of a survey conducted by Public Agenda and the Public Education Network that indicated that African-American parents, by an 80% to 90% margin, "say the higher priority for the nation's schools should be to raise academic standards and achievement rather than focus on achieving more diversity and integration").
29. The three reforms that are currently in fashion and that overlap to a certain extent are standards-based reform (using curricular standards and assessments to regularize the curriculum and chart progress), whole-school or systemic reform (reorienting the structure of schools and classes), and site-based management (providing teachers, parents, and school administrators more authority over the operation of schools). See, e.g., JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM 9-12 (1997) (describing the scope of current reforms and the history of earlier waves of reform); ALLAN ODDEN & CAROLYN BUSCH, FINANCING SCHOOLS FOR HIGH PERFORMANCE: STRATEGIES FOR IMPROVING THE USE OF EDUCATIONAL RESOURCES (1998); KENNETH K. WONG ET AL., U.S. DEP'T OF EDUC., PROSPECTS: SPECIAL ANALYSES (1996); James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 VA. L. REV. 349 (1990); Olatokunbo S. Fashola & Robert E. Slavin, Schoolwide Reform Models: What Works?, 79 PHI DELTA KAPPAN 370 (1998) (describing various whole-school reform programs). The precursor to today's reforms was the "effective schools" movement, which sought to identify the most essential traits - such as effective leadership and strong teacher preparation - of productive and successful schools. See, e.g., Stewart C. Purkey & Marshall S. Smith, Effective Schools: A Review, 83 ELEMENTARY SCH. J. 427 (1983).
30. The three reforms that are currently in fashion and that overlap to a certain extent are standards-based reform (using curricular standards and assessments to regularize the curriculum and chart progress), whole-school or systemic reform (reorienting the structure of schools and classes), and site-based management (providing teachers, parents, and school administrators more authority over the operation of schools). See, e.g., JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM 9-12 (1997) (describing the scope of current reforms and the history of earlier waves of reform); ALLAN ODDEN & CAROLYN BUSCH, FINANCING SCHOOLS FOR HIGH PERFORMANCE: STRATEGIES FOR IMPROVING THE USE OF EDUCATIONAL RESOURCES (1998); KENNETH K. WONG ET AL., U.S. DEP'T OF EDUC., PROSPECTS: SPECIAL ANALYSES (1996); James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 VA. L. REV. 349 (1990); Olatokunbo S. Fashola & Robert E. Slavin, Schoolwide Reform Models: What Works?, 79 PHI DELTA KAPPAN 370 (1998) (describing various whole-school reform programs). The precursor to today's reforms was the "effective schools" movement, which sought to identify the most essential traits - such as effective leadership and strong teacher preparation - of productive and successful schools. See, e.g., Stewart C. Purkey & Marshall S. Smith, Effective Schools: A Review, 83 ELEMENTARY SCH. J. 427 (1983).
31. The three reforms that are currently in fashion and that overlap to a certain extent are standards-based reform (using curricular standards and assessments to regularize the curriculum and chart progress), whole-school or systemic reform (reorienting the structure of schools and classes), and site-based management (providing teachers, parents, and school administrators more authority over the operation of schools). See, e.g., JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM 9-12 (1997) (describing the scope of current reforms and the history of earlier waves of reform); ALLAN ODDEN & CAROLYN BUSCH, FINANCING SCHOOLS FOR HIGH PERFORMANCE: STRATEGIES FOR IMPROVING THE USE OF EDUCATIONAL RESOURCES (1998); KENNETH K. WONG ET AL., U.S. DEP'T OF EDUC., PROSPECTS: SPECIAL ANALYSES (1996); James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 VA. L. REV. 349 (1990); Olatokunbo S. Fashola & Robert E. Slavin, Schoolwide Reform Models: What Works?, 79 PHI DELTA KAPPAN 370 (1998) (describing various whole-school reform programs). The precursor to today's reforms was the "effective schools" movement, which sought to identify the most essential traits - such as effective leadership and strong teacher preparation - of productive and successful schools. See, e.g., Stewart C. Purkey & Marshall S. Smith, Effective Schools: A Review, 83 ELEMENTARY SCH. J. 427 (1983).
32. The three reforms that are currently in fashion and that overlap to a certain extent are standards-based reform (using curricular standards and assessments to regularize the curriculum and chart progress), whole-school or systemic reform (reorienting the structure of schools and classes), and site-based management (providing teachers, parents, and school administrators more authority over the operation of schools). See, e.g., JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM 9-12 (1997) (describing the scope of current reforms and the history of earlier waves of reform); ALLAN ODDEN & CAROLYN BUSCH, FINANCING SCHOOLS FOR HIGH PERFORMANCE: STRATEGIES FOR IMPROVING THE USE OF EDUCATIONAL RESOURCES (1998); KENNETH K. WONG ET AL., U.S. DEP'T OF EDUC., PROSPECTS: SPECIAL ANALYSES (1996); James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 VA. L. REV. 349 (1990); Olatokunbo S. Fashola & Robert E. Slavin, Schoolwide Reform Models: What Works?, 79 PHI DELTA KAPPAN 370 (1998) (describing various whole-school reform programs). The precursor to today's reforms was the "effective schools" movement, which sought to identify the most essential traits - such as effective leadership and strong teacher preparation - of productive and successful schools. See, e.g., Stewart C. Purkey & Marshall S. Smith, Effective Schools: A Review, 83 ELEMENTARY SCH. J. 427 (1983).
33. The three reforms that are currently in fashion and that overlap to a certain extent are standards-based reform (using curricular standards and assessments to regularize the curriculum and chart progress), whole-school or systemic reform (reorienting the structure of schools and classes), and site-based management (providing teachers, parents, and school administrators more authority over the operation of schools). See, e.g., JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM 9-12 (1997) (describing the scope of current reforms and the history of earlier waves of reform); ALLAN ODDEN & CAROLYN BUSCH, FINANCING SCHOOLS FOR HIGH PERFORMANCE: STRATEGIES FOR IMPROVING THE USE OF EDUCATIONAL RESOURCES (1998); KENNETH K. WONG ET AL., U.S. DEP'T OF EDUC., PROSPECTS: SPECIAL ANALYSES (1996); James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 VA. L. REV. 349 (1990); Olatokunbo S. Fashola & Robert E. Slavin, Schoolwide Reform Models: What Works?, 79 PHI DELTA KAPPAN 370 (1998) (describing various whole-school reform programs). The precursor to today's reforms was the "effective schools" movement, which sought to identify the most essential traits - such as effective leadership and strong teacher preparation - of productive and successful schools. See, e.g., Stewart C. Purkey & Marshall S. Smith, Effective Schools: A Review, 83 ELEMENTARY SCH. J. 427 (1983).
34. The three reforms that are currently in fashion and that overlap to a certain extent are standards-based reform (using curricular standards and assessments to regularize the curriculum and chart progress), whole-school or systemic reform (reorienting the structure of schools and classes), and site-based management (providing teachers, parents, and school administrators more authority over the operation of schools). See, e.g., JEAN ANYON, GHETTO SCHOOLING: A POLITICAL ECONOMY OF URBAN EDUCATIONAL REFORM 9-12 (1997) (describing the scope of current reforms and the history of earlier waves of reform); ALLAN ODDEN & CAROLYN BUSCH, FINANCING SCHOOLS FOR HIGH PERFORMANCE: STRATEGIES FOR IMPROVING THE USE OF EDUCATIONAL RESOURCES (1998); KENNETH K. WONG ET AL., U.S. DEP'T OF EDUC., PROSPECTS: SPECIAL ANALYSES (1996); James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 VA. L. REV. 349 (1990); Olatokunbo S. Fashola & Robert E. Slavin, Schoolwide Reform Models: What Works?, 79 PHI DELTA KAPPAN 370 (1998) (describing various whole-school reform programs). The precursor to today's reforms was the "effective schools" movement, which sought to identify the most essential traits - such as effective leadership and strong teacher preparation - of productive and successful schools. See, e.g., Stewart C. Purkey & Marshall S. Smith, Effective Schools: A Review, 83 ELEMENTARY SCH. J. 427 (1983).
35. See Michael A. Rebell, Fiscal Equality in Education: Deconstructing the Reigning Myths and Facing Reality, 21 N.Y.U. REV. L. & SOC. CHANGE 691, 697-98 (1995) (discussing the fairly high costs of a school reform strategy developed by James Comer).
36. For citation and discussion of these cases, see infra Section II.B.
37. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
38. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
39. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
40. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
41. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
42. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
43. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
44. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
45. Indeed, as I have explained elsewhere, an ostensible desegregation case, Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996), offers evidence relevant to school finance debates, insofar as it reveals that equalizing expenditures at relatively high levels may not significantly improve the educational achievement of poor minority students. See James E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529 (1999). This case, however, has not figured in school finance scholarship. This is not to say that the relationship between desegregation and school finance, or the role that race plays in school finance reform, has gone completely unexamined, but the exceptions are quite limited and focused studies. See Kevin Brown, The Legal Rhetorical Structure for the Conversion of Desegregation Lawsuits to Quality Education Lawsuits, 42 EMORY L.J. 791 (1993); Deborah M. Kazal-Thresher, Merging Educational Finance Reform and Desegregation Goals, 1 EDUC. POL'Y ANALYSIS ARCHIVES 7 (June 6, 1993) ; Douglas S. Reed, The People v. The Court: School Finance Reform and the New Jersey Supreme Court, 4 CORNELL J.L. & PUB. POL'Y 137 (1994); Douglas S. Reed, Twenty-Five Years After Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 L. & SOC'Y REV. 175 (1998); Kent L. Tedin, Self-Interest, Symbolic Values, and the Financial Equalization of the Public Schools, 56 J. POL. 628 (1994). The Brown and Kazal-Thresher articles, moreover, suggest that attention should be shifted away from desegregation and toward financial reforms, which, as argued throughout this Article, seems the wrong direction in which to proceed. See Brown, supra, at 803-19; Kazal-Thresher, supra.
46. See ELMORE & MCLAUGHLIN, supra note 11, at 21-32 (describing early school finance reform goals); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975) (describing the NAACP's desegregation strategies and goals); RICHARD LEHNE, THE QUEST FOR JUSTICE: THE POLITICS OF SCHOOL FINANCE REFORM 9-22 (1978) (describing the early history of school finance litigation); MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (describing the NAACP's desegregation strategies and the exogenous factors that influenced those strategies); Paul L. Tractenberg, A Tale of Two States: A Comparative Study of School Finance and Educational Reform in California and New Jersey 20-27 (Dec. 5, 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing the goals of New Jersey and California school finance cases).
47. See ELMORE & MCLAUGHLIN, supra note 11, at 21-32 (describing early school finance reform goals); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975) (describing the NAACP's desegregation strategies and goals); RICHARD LEHNE, THE QUEST FOR JUSTICE: THE POLITICS OF SCHOOL FINANCE REFORM 9-22 (1978) (describing the early history of school finance litigation); MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (describing the NAACP's desegregation strategies and the exogenous factors that influenced those strategies); Paul L. Tractenberg, A Tale of Two States: A Comparative Study of School Finance and Educational Reform in California and New Jersey 20-27 (Dec. 5, 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing the goals of New Jersey and California school finance cases).
48. See ELMORE & MCLAUGHLIN, supra note 11, at 21-32 (describing early school finance reform goals); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975) (describing the NAACP's desegregation strategies and goals); RICHARD LEHNE, THE QUEST FOR JUSTICE: THE POLITICS OF SCHOOL FINANCE REFORM 9-22 (1978) (describing the early history of school finance litigation); MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (describing the NAACP's desegregation strategies and the exogenous factors that influenced those strategies); Paul L. Tractenberg, A Tale of Two States: A Comparative Study of School Finance and Educational Reform in California and New Jersey 20-27 (Dec. 5, 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing the goals of New Jersey and California school finance cases).
49. See ELMORE & MCLAUGHLIN, supra note 11, at 21-32 (describing early school finance reform goals); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975) (describing the NAACP's desegregation strategies and goals); RICHARD LEHNE, THE QUEST FOR JUSTICE: THE POLITICS OF SCHOOL FINANCE REFORM 9-22 (1978) (describing the early history of school finance litigation); MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (describing the NAACP's desegregation strategies and the exogenous factors that influenced those strategies); Paul L. Tractenberg, A Tale of Two States: A Comparative Study of School Finance and Educational Reform in California and New Jersey 20-27 (Dec. 5, 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing the goals of New Jersey and California school finance cases).
50. See ELMORE & MCLAUGHLIN, supra note 11, at 21-32 (describing early school finance reform goals); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975) (describing the NAACP's desegregation strategies and goals); RICHARD LEHNE, THE QUEST FOR JUSTICE: THE POLITICS OF SCHOOL FINANCE REFORM 9-22 (1978) (describing the early history of school finance litigation); MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (describing the NAACP's desegregation strategies and the exogenous factors that influenced those strategies); Paul L. Tractenberg, A Tale of Two States: A Comparative Study of School Finance and Educational Reform in California and New Jersey 20-27 (Dec. 5, 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing the goals of New Jersey and California school finance cases).
51. See Erwin Chemerinsky, Lost Opportunity: The Burger Court and the Failure To Achieve Equal Educational Opportunity, 45 MERCER L. REV. 999, 999 (1994) ("American schools are separate and unequal. . . . Forty years after Brown v. Board of Education proclaimed that separate can never be equal in public education, American schools are racially segregated and grossly unequal." (citation omitted)).
52. There is at least one additional reason why the lack of attention to the relationship between school finance and desegregation is curious, and why an examination of the two in tandem is worthwhile. The research findings regarding desegregation often reveal much about school finance reform, and vice versa, yet scholars from the two fields rarely seem to take advantage of each other's work. For example, an ongoing and heated debate among school finance scholars concerns the degree to which expenditures and achievement are related - or, more colloquially, whether "money matters." See infra text accompanying notes 174-94. Cases and research in the desegregation field, particularly regarding Milliken II relief, support the argument that significantly increasing expenditures will not necessarily increase achievement. Yet these cases and research are rarely if ever mentioned among school finance scholars. At the same time, desegregation research also suggests that integrating students of different socioeconomic backgrounds benefits poorer students academically and socially and is a worthwhile option to consider from an educational-policy perspective; this research, however, is difficult to find in school finance articles that seek to establish that money does not matter. One of my subsidiary aims in this Article is to begin to bridge the gap that has separated these academic endeavors and to utilize research from both fields in an attempt to sort out which reforms seem most promising and which most futile.
53. See James E. Ryan, The Influence of Race in School Finance Reform, 98 MICH. L. REV. (forthcoming Nov. 1999) (arguing that minority school districts, especially those in urban areas, do not fare well in school finance litigation, and that race seems to play an influential role in court decisions and legislative reactions to those decisions); Ryan, supra note 16, at 546-60 (arguing that the underlying right recognized in state school finance cases could support a claim for racial and/or socioeconomic integration).
54. See James E. Ryan, The Influence of Race in School Finance Reform, 98 MICH. L. REV. (forthcoming Nov. 1999) (arguing that minority school districts, especially those in urban areas, do not fare well in school finance litigation, and that race seems to play an influential role in court decisions and legislative reactions to those decisions); Ryan, supra note 16, at 546-60 (arguing that the underlying right recognized in state school finance cases could support a claim for racial and/or socioeconomic integration).
55. I use the broad term "race relations" to encompass private attitudes and actions as well as government discrimination, all of which, as will become apparent in the discussion of residential segregation, bear some causal responsibility for the creation and maintenance of racially isolated school districts. See infra Subsection III.B.1. There is obviously one caveat to this argument: Race is not going to play a role in school finance reform in states that have small minority populations.
56. See, e.g., DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 199-201 (1995) (reporting poll data); FARKAS & JOHNSON, supra note 12, at 26-27 (reporting that only 22% of white parents favor busing as a way to achieve integrated schools, while 55% of black parents suppon it); GARY ORFIELD ET AL., DISMANTLING DESEGREGATION 73, 108 (1996) (reporting poll data).
57. See, e.g., DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 199-201 (1995) (reporting poll data); FARKAS & JOHNSON, supra note 12, at 26-27 (reporting that only 22% of white parents favor busing as a way to achieve integrated schools, while 55% of black parents suppon it); GARY ORFIELD ET AL., DISMANTLING DESEGREGATION 73, 108 (1996) (reporting poll data).
58. See, e.g., DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 199-201 (1995) (reporting poll data); FARKAS & JOHNSON, supra note 12, at 26-27 (reporting that only 22% of white parents favor busing as a way to achieve integrated schools, while 55% of black parents suppon it); GARY ORFIELD ET AL., DISMANTLING DESEGREGATION 73, 108 (1996) (reporting poll data).
59. 347 U.S. 483 (1954).
60. See Robert L. Carter, Public School Desegregation: A Contemporary Analysis, 37 ST. LOUIS U. L.J. 885, 885 (1993) ("When we were arguing school segregation cases in 1952 and 1953 before the Supreme Court, we saw the dual school system as the key barrier to equal educational opportunity for African-Americans. With the 1954 declaration in Brown v. Board of Education, I believed the path was then clear for black children to receive an equal education. My confidence in the inevitability of this result now seems naive." (footnote omitted)); see also Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End?, 37 ST. LOUIS U. L.J. 923, 926-31 (1993) (describing the debate between Judge Carter, who supports more integration, and Professor Kevin Brown, who supports African-American immersion schools); James S. Liebman, Desegregating Politics: "All-Out" School Desegregation Explained, 90 COLUM. L. REV. 1463, 1486 (1990) (describing plaintiffs' "assumptions about the advantages of interracial education").
61. See Robert L. Carter, Public School Desegregation: A Contemporary Analysis, 37 ST. LOUIS U. L.J. 885, 885 (1993) ("When we were arguing school segregation cases in 1952 and 1953 before the Supreme Court, we saw the dual school system as the key barrier to equal educational opportunity for African-Americans. With the 1954 declaration in Brown v. Board of Education, I believed the path was then clear for black children to receive an equal education. My confidence in the inevitability of this result now seems naive." (footnote omitted)); see also Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End?, 37 ST. LOUIS U. L.J. 923, 926-31 (1993) (describing the debate between Judge Carter, who supports more integration, and Professor Kevin Brown, who supports African-American immersion schools); James S. Liebman, Desegregating Politics: "All-Out" School Desegregation Explained, 90 COLUM. L. REV. 1463, 1486 (1990) (describing plaintiffs' "assumptions about the advantages of interracial education").
62. See Robert L. Carter, Public School Desegregation: A Contemporary Analysis, 37 ST. LOUIS U. L.J. 885, 885 (1993) ("When we were arguing school segregation cases in 1952 and 1953 before the Supreme Court, we saw the dual school system as the key barrier to equal educational opportunity for African-Americans. With the 1954 declaration in Brown v. Board of Education, I believed the path was then clear for black children to receive an equal education. My confidence in the inevitability of this result now seems naive." (footnote omitted)); see also Wendy R. Brown, School Desegregation Litigation: Crossroads or Dead End?, 37 ST. LOUIS U. L.J. 923, 926-31 (1993) (describing the debate between Judge Carter, who supports more integration, and Professor Kevin Brown, who supports African-American immersion schools); James S. Liebman, Desegregating Politics: "All-Out" School Desegregation Explained, 90 COLUM. L. REV. 1463, 1486 (1990) (describing plaintiffs' "assumptions about the advantages of interracial education").
63. See KLUGER, supra note 17, at 88, 122, 134 (describing the disparity in funding between white and black students in the South); ORFIELD ET AL., supra note 22, at 36-37 (same); Michael A. Middleton, Brown v. Board: Revisited, 20 S. ILL. U. L.J. 19, 32 (1995) (describing how black children received inferior education under segregated systems because of severe underfunding); cf. John J. Donohue III et al., Social Action, Private Charity & Philanthropy: Understanding the Sources of Improvements in Black Schooling in Georgia, 1911-1960, at 3-4 (Dec. 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing how black schools made relative gains in school quality beginning in the 1930s in response to the threats of litigation and integration).
64. See KLUGER, supra note 17, at 88, 122, 134 (describing the disparity in funding between white and black students in the South); ORFIELD ET AL., supra note 22, at 36-37 (same); Michael A. Middleton, Brown v. Board: Revisited, 20 S. ILL. U. L.J. 19, 32 (1995) (describing how black children received inferior education under segregated systems because of severe underfunding); cf. John J.
65. See KLUGER, supra note 17, at 88, 122, 134 (describing the disparity in funding between white and black students in the South); ORFIELD ET AL., supra note 22, at 36-37 (same); Michael A. Middleton, Brown v. Board: Revisited, 20 S. ILL. U. L.J. 19, 32 (1995) (describing how black children received inferior education under segregated systems because of severe underfunding); cf. John J. Donohue III et al., Social Action, Private Charity & Philanthropy: Understanding the Sources of Improvements in Black Schooling in Georgia, 1911-1960, at 3-4 (Dec. 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing how black schools made relative gains in school quality beginning in the 1930s in response to the threats of litigation and integration).
66. See KLUGER, supra note 17, at 88, 122, 134 (describing the disparity in funding between white and black students in the South); ORFIELD ET AL., supra note 22, at 36-37 (same); Michael A. Middleton, Brown v. Board: Revisited, 20 S. ILL. U. L.J. 19, 32 (1995) (describing how black children received inferior education under segregated systems because of severe underfunding); cf. John J. Donohue III et al., Social Action, Private Charity & Philanthropy: Understanding the Sources of Improvements in Black Schooling in Georgia, 1911-1960, at 3-4 (Dec. 1997) (unpublished manuscript, on file with The Yale Law Journal) (describing how black schools made relative gains in school quality beginning in the 1930s in response to the threats of litigation and integration).
67. See Robert L. Carter, Reexamining Brown Twenty-Five Years Later: Looking Backward into the Future, 14 HARV. C.R.-C.L. L. REV. 615, 617 (1979) ("[T]he basic postulate of our strategy and theory in Brown was that the elimination of enforced, segregated education would necessarily result in equal education."); Middleton, supra note 25, at 29; Martha L. Minow, School Finance: Does Money Matter?, 28 HARV. J. ON LEGIS. 395, 395-96 (1991) (describing the predicate of early NAACP work as the principle that "green follows white: money for schooling follows the white students"); see also Liebman, supra note 13, at 396 (observing that scholars have argued that the decision was about enhanced educational opportunities as much as about integration).
68. See Robert L. Carter, Reexamining Brown Twenty-Five Years Later: Looking Backward into the Future, 14 HARV. C.R.-C.L. L. REV. 615, 617 (1979) ("[T]he basic postulate of our strategy and theory in Brown was that the elimination of enforced, segregated education would necessarily result in equal education."); Middleton, supra note 25, at 29; Martha L. Minow, School Finance: Does Money Matter?, 28 HARV. J. ON LEGIS. 395, 395-96 (1991) (describing the predicate of early NAACP work as the principle that "green follows white: money for schooling follows the white students"); see also Liebman, supra note 13, at 396 (observing that scholars have argued that the decision was about enhanced educational opportunities as much as about integration).
69. See Robert L. Carter, Reexamining Brown Twenty-Five Years Later: Looking Backward into the Future, 14 HARV. C.R.-C.L. L. REV. 615, 617 (1979) ("[T]he basic postulate of our strategy and theory in Brown was that the elimination of enforced, segregated education would necessarily result in equal education."); Middleton, supra note 25, at 29; Martha L. Minow, School Finance: Does Money Matter?, 28 HARV. J. ON LEGIS. 395, 395-96 (1991) (describing the predicate of early NAACP work as the principle that "green follows white: money for schooling follows the white students"); see also Liebman, supra note 13, at 396 (observing that scholars have argued that the decision was about enhanced educational opportunities as much as about integration).
70. See Robert L. Carter, Reexamining Brown Twenty-Five Years Later: Looking Backward into the Future, 14 HARV. C.R.-C.L. L. REV. 615, 617 (1979) ("[T]he basic postulate of our strategy and theory in Brown was that the elimination of enforced, segregated education would necessarily result in equal education."); Middleton, supra note 25, at 29; Martha L. Minow, School Finance: Does Money Matter?, 28 HARV. J. ON LEGIS. 395, 395-96 (1991) (describing the predicate of early NAACP work as the principle that "green follows white: money for schooling follows the white students"); see also Liebman, supra note 13, at 396 (observing that scholars have argued that the decision was about enhanced educational opportunities as much as about integration).
71. 411 U.S. 1 (1973).
72. See, e.g., Serrano v. Priest (Serrano I), 487 P.2d 1241 (Cal. 1971); Robinson v. Cahill (Robinson I), 303 A.2d 273 (N.J. 1973).
73. The widespread use of tracking in desegregated schools, which served to segregate students by race within such schools, prevented this theory from being fully realized in practice. See, e.g., JEANNIE OAKES, MULTIPLYING INEQUALITIES: THE EFFECTS OF RACE, SOCIAL CLASS, AND TRACKING ON OPPORTUNITIES TO LEARN MATHEMATICS AND SCIENCE passim (1990) (finding that disproportionately high percentages of African-American and Latino students are assigned to low-ability math and science classes and that such classes are taught by less qualified teachers and receive fewer resources, such as laboratories and science equipment).
74. The early theory of school finance cases did not require exact equality in expenditure levels, but rather equality in access to resources, or fiscal neutrality. The principle of fiscal neutrality required that all school districts have access to the same amount of resources for financing their schools; the exact level of expenditures, however, would depend on tax rates imposed by the districts and thus could differ. See JOHN E. COONS ET AL., PRIVATE WEALTH AND PUBLIC EDUCATION 201-02 (1970). Despite the fact that expenditure levels could differ, poor and wealthy districts would remain tied together financially under a scheme of fiscal neutrality insofar as both would have access to the same level of resources.
75. See Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 VAND. L. REV. 101 (1995); Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 TEMP. L. REV. 1151 (1995); William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. REV. 597 (1994).
76. See Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 VAND. L. REV. 101 (1995); Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 TEMP. L. REV. 1151 (1995); William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. REV. 597 (1994).
77. See Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 VAND. L. REV. 101 (1995); Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 TEMP. L. REV. 1151 (1995); William E. Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The Massachusetts Decision as a Model, 35 B.C. L. REV. 597 (1994).
78. Brown v. Board of Educ. (Brown II), 349 U.S. 294, 301 (1955) (failing to establish a standard or timetable for desegregation and instead holding that desegregation should occur "with all deliberate speed" through plans developed in federal district courts).
79. Green v. County Sch. Bd., 391 U.S. 430 (1968). In Green, the Court rejected freedom-of-choice plans, which gave students the option of transferring from black to white schools, on the ground that they placed the burden of desegregation on blacks, who were reluctant to transfer in the face of intimidation. It also held that segregated or dual school systems must be dismantled "root and branch" and that desegregation must be achieved with respect to facilities, staff, faculty, extracurricular activities, and transportation. Id. at 438.
80. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (striking down "racially neutral" student assignment plans that produced segregation by relying on existing residential patterns in the district, ruling that desegregation must be achieved in each district's schools to the greatest extent possible, and approving busing as a means to accomplish this goal).
81. In addition to the cases cited above, see Keyes v. School District No. 1, 413 U.S. 189 (1973), which held that Denver must desegregate all city schools, and Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969), which declared that desegregation must occur "at once" and that districts must "operate now and hereafter only unitary schools." Id. at 20.
82. In addition to the cases cited above, see Keyes v. School District No. 1, 413 U.S. 189 (1973), which held that Denver must desegregate all city schools, and Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969), which declared that desegregation must occur "at once" and that districts must "operate now and hereafter only unitary schools." Id. at 20.
83. Milliken v. Bradley (Milliken I), 418 U.S. 717 (1974).
84. Milliken v. Bradley (Milliken II), 433 U.S. 267 (1977) (holding that a court could order a state to pay for educational programs to repair the harm caused by segregation).
85. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 312 (1994); ORFIELD ET AL., supra note 22, at 11; J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 219-22 (1979).
86. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 312 (1994); ORFIELD ET AL., supra note 22, at 11; J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 219-22 (1979).
87. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 312 (1994); ORFIELD ET AL., supra note 22, at 11; J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 219-22 (1979).
88. It is interesting to note, given the five to four vote in Milliken I against the plaintiffs, that Milliken II was a unanimous decision in their favor.
89. See MARK G. YUDOF ET AL., EDUCATIONAL POLICY AND THE LAW 535 (1992) ("A number of courts, relying on Milliken II, have ordered the state or other governmental units to share the costs of implementing and maintaining desegregation and compensatory education programs with the local school board."). A group of commentators associated with the Harvard Project on School Desegregation describes the changes following Milliken I: Since 1977, school districts across the nation have used Milliken II provisions to install state-sponsored compensatory educational programs for minority students in racially isolated schools. . . . [T]he programs have played an increasingly prominent role in desegregation remedies since 1977. This is partly because the demographic patterns evident in Detroit in 1974 have become more pronounced. School districts in the nation's central cities and some older suburbs enroll large proportions of minority students, while surrounding suburbs remain predominantly white. As patterns of isolation persist, racial integration of the type envisioned in Brown has become increasingly difficult to achieve. This pattern has forced school officials and courts to rely on Milliken II programs to supplant rather than supplement true racial integration. ORFIELD ET AL., supra note 22, at 154.
90. See MARK G. YUDOF ET AL., EDUCATIONAL POLICY AND THE LAW 535 (1992) ("A number of courts, relying on Milliken II, have ordered the state or other governmental units to share the costs of implementing and maintaining desegregation and compensatory education programs with the local school board."). A group of commentators associated with the Harvard Project on School Desegregation describes the changes following Milliken I: Since 1977, school districts across the nation have used Milliken II provisions to install state-sponsored compensatory educational programs for minority students in racially isolated schools. . . . [T]he programs have played an increasingly prominent role in desegregation remedies since 1977. This is partly because the demographic patterns evident in Detroit in 1974 have become more pronounced. School districts in the nation's central cities and some older suburbs enroll large proportions of minority students, while surrounding suburbs remain predominantly white. As patterns of isolation persist, racial integration of the type envisioned in Brown has become increasingly difficult to achieve. This pattern has forced school officials and courts to rely on Milliken II programs to supplant rather than supplement true racial integration. ORFIELD ET AL., supra note 22, at 154.
91. See Assessing the Impact of Judicial Taxation on Local Communities: Hearing Before the Subcomm. on Admin. Oversight and the Courts of the Senate Comm. on the Judiciary, 104th Cong., 1996 WL 538968 (1996) [hereinafter, Assessing the Impact] (statement of Alfred A. Lindseth). Lindseth, an attorney who has represented a number of school districts seeking unitary status, explained that local districts have resisted recognition of unitary status to continue receiving court-ordered funding. St. Louis and Kansas City, for example, have received a total of over $2.5 billion so far to fund desegregation decrees; these districts currently spend $8000 per pupil as compared to the state average of $4500. Thus, school districts have become willing participants with plaintiffs in resisting unitary status. Lindseth suggests the same dynamic has occurred in other states, including Illinois and Georgia. See id.; see also ORFIELD ET AL., supra note 22, at 143-78.
92. See Assessing the Impact of Judicial Taxation on Local Communities: Hearing Before the Subcomm. on Admin. Oversight and the Courts of the Senate Comm. on the Judiciary, 104th Cong., 1996 WL 538968 (1996) [hereinafter, Assessing the Impact] (statement of Alfred A. Lindseth). Lindseth, an attorney who has represented a number of school districts seeking unitary status, explained that local districts have resisted recognition of unitary status to continue receiving court-ordered funding. St. Louis and Kansas City, for example, have received a total of over $2.5 billion so far to fund desegregation decrees; these districts currently spend $8000 per pupil as compared to the state average of $4500. Thus, school districts have become willing participants with plaintiffs in resisting unitary status. Lindseth suggests the same dynamic has occurred in other states, including Illinois and Georgia. See id.; see also ORFIELD ET AL., supra note 22, at 143-78.
93. Cf. ORFIELD ET AL., supra note 22, at 12 (reporting that a judge overseeing the monetary remedies in Detroit called Milliken II a "limited form of reparations").
94. See Missouri v. Jenkins, 515 U.S. 70 (1995) (describing extensive programs ordered by the court and funded in part by the state, pursuant to a desegregation decree).
95. Not all such suits have been successful. In School Board v. Baliles, 829 F.2d 1308 (4th Cir. 1987), the court rejected the Richmond School Board's attempt to secure funds from the state to finance compensatory and remedial programs. The case is nonetheless typical of the transformation wrought by the Milliken decisions. After the court of appeals held that the plaintiffs had failed to prove an interdistrict violation, the school board moved to realign itself with the plaintiffs and sued the state for money to fund remedial and compensatory programs. See id. at 1310. By the time the suit reached the court, however, the Richmond school system had been declared unitary, and thus the court held that the state was not responsible for funding the programs. See id. at 1314.
96. See United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996). In Yonkers, the school board (along with the NAACP) successfully sued the state for money ostensibly intended to finance efforts to eliminate the vestiges of segregation. City leaders were delighted with the ruling because they may finally get hundreds of millions of dollars to pay for new classrooms and more teachers for all students, not just those hurt by segregation. Mayor John D. Spencer has long argued that the city has been shortchanged to the tune of $50 million a year by a state education formula that favors the suburbs and rural areas. Joseph Berger, A Shared Victory, N.Y. TIMES, Sept. 26, 1996, at B6.
97. See United States v. City of Yonkers, 96 F.3d 600 (2d Cir. 1996). In Yonkers, the school board (along with the NAACP) successfully sued the state for money ostensibly intended to finance efforts to eliminate the vestiges of segregation. City leaders were delighted with the ruling because they may finally get hundreds of millions of dollars to pay for new classrooms and more teachers for all students, not just those hurt by segregation. Mayor John D. Spencer has long argued that the city has been shortchanged to the tune of $50 million a year by a state education formula that favors the suburbs and rural areas. Joseph Berger, A Shared Victory, N.Y. TIMES, Sept. 26, 1996, at B6.
98. See Pennsylvania Human Relations Comm'n v. School Dist., 681 A.2d 1366 (Pa. Commw. Ct. 1996) (ordering the state government to provide over $45 million to fund a remedial order designed to improve educational opportunities for minority students in racially isolated schools); see also Michael A. Riccardi, Lawyers Quickly Review Deseg Opinion: Both Sides Urge Supreme Court To Act Swiftly, THE LEGAL INTELLIGENCER, Sept. 10, 1996, at 1 ("The most remarkable turn that school desegregation litigation has taken in its 24-year history may be that the court has shifted its focus from undoing segregated conditions to improving opportunity for students in racially-isolated schools, estimated at 100,000 children of the city's 130,000 minority students.").
99. See Pennsylvania Human Relations Comm'n v. School Dist., 681 A.2d 1366 (Pa. Commw. Ct. 1996) (ordering the state government to provide over $45 million to fund a remedial order designed to improve educational opportunities for minority students in racially isolated schools); see also Michael A. Riccardi, Lawyers Quickly Review Deseg Opinion: Both Sides Urge Supreme Court To Act Swiftly, THE LEGAL INTELLIGENCER, Sept. 10, 1996, at 1 ("The most remarkable turn that school desegregation litigation has taken in its 24-year history may be that the court has shifted its focus from undoing segregated conditions to improving opportunity for students in racially-isolated schools, estimated at 100,000 children of the city's 130,000 minority students.").
100. See Berger, supra note 45, at B6 (reporting that Prince George's County, Maryland, the 10th largest school district in the country, has been trying, as have other school districts, to get the state to pay for the costs of correcting what have become known as the "vestiges of segregation," which include the sizable gap between the performances of white and black students).
101. See id.
102. Curiously, DeKalb County, the school district at issue in Freeman v. Pitts, 503 U.S. 467 (1992), tried to obtain Milliken II funding while simultaneously trying to lift the district court's remedial decree. See Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 770 (1993).
103. Curiously, DeKalb County, the school district at issue in Freeman v. Pitts, 503 U.S. 467 (1992), tried to obtain Milliken II funding while simultaneously trying to lift the district court's remedial decree. See Gary Orfield & David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 770 (1993).
104. See Reed v. Rhodes, 934 F. Supp. 1533, 1536 (N.D. Ohio 1996) (describing the 1978 desegregation decree regarding Cleveland public schools that, inter alia, required the "development of creative educational curriculums, including innovative reading and other programs designed to correct the effects of prior segregated schooling as is reasonably possible").
105. See Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 716 F. Supp. 1162, 1190 (E.D. Ark. 1989), rev'd in part, 921 F.2d 1371 (8th Cir. 1990) (directing the district court to approve a settlement plan); see also ORFIELD ET AL., supra note 22, at 156-57 (discussing the use of Milliken II programs at "Incentive Schools" that were part of a larger desegregation strategy).
106. See Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 716 F. Supp. 1162, 1190 (E.D. Ark. 1989), rev'd in part, 921 F.2d 1371 (8th Cir. 1990) (directing the district court to approve a settlement plan); see also ORFIELD ET AL., supra note 22, at 156-57 (discussing the use of Milliken II programs at "Incentive Schools" that were part of a larger desegregation strategy).
107. See Milliken II, 433 U.S. at 292-95 (Powell, J., concurring in judgment). Justice Powell, in arguing that the writ should be dismissed as improvidently granted, described the transformation of the litigation from one that pitted student and parent plaintiffs against the school board into one that featured the school board and plaintiffs teaming up against the state. The plaintiffs and school boards, Powell observed, "antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury." Id. at 293. Indeed, Powell noted, the school board "enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers." Id.
108. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 79 (1995) (noting that the Kansas City, Missouri School District (KCMSD) "has pursued a 'friendly adversary' relationship with plaintiffs [and] has continued to propose ever more expensive programs"); United States v. City of Yonkers, 96 F.3d 600, 603 (2nd Cir. 1996) (describing how the NAACP teamed with the Yonkers Board of Education in suing the state); Pennsylvania Human Relations Comm'n v. School Dist., 681 A.2d 1366 (Pa. Commw. Ct. 1996) (describing how the school district and student-parent plaintiffs sued the city and state); Berger, supra note 45, at B6 (noting that officials of Yonkers and the city's civil rights leaders "won a shared victory over an entity they have gradually come to see as a common foe: the State of New York").
109. See, e.g., Milliken II, 433 U.S. at 275-91 (approving remedial programs that targeted reading, teacher training, testing procedures, and counseling and career guidance).
110. See, e.g., Jenkins, 515 U.S. at 75 (describing a remedial order that required "a wide range of quality education programs for all students attending the KCMSD," including full-day kindergarten; expanded summer school; tutoring; an early childhood development program; and a state-funded "effective schools" program that extended not only to the 25 racially identifiable schools but also to the 43 other schools within the KCMSD); Pennsylvania Human Relations Comm'n, 681 A.2d at 1385 (rejecting the argument that a remedial order had to be limited to racially isolated schools and could not extend to the entire district). Jenkins may curtail the ability of courts to order district-wide relief, as it authorizes courts to order relief only for academic deficiencies that are traceable to segregation and forbids the use of remedial decrees to promote the desegregative attractiveness of an urban school district. See Jenkins, 515 U.S. at 94, 101-02.
111. See East Jackson Pub. Sch. v. State, 348 N.W.2d 303 (Mich. Ct. App. 1984) (holding that education is not a fundamental right under Michigan's constitution and that the obligation to provide a free public education does amount to an obligation to provide equal funding for each student). Michigan's school finance litigation has a mysterious history in that the state supreme court in 1972 held that education was a fundamental right and that the financing scheme had failed to advance a compelling state interest. See Milliken v. Green, 203 N.W.2d 457 (Mich. 1972). The Michigan court subsequently ordered a rehearing. In the interim, the United States Supreme Court decided Rodriguez, and the Michigan court's composition changed. In 1973, the Michigan court, without opinion, vacated its opinion in Milliken v. Green. See Milliken v. Green, 212 N.W.2d 711 (Mich. 1973). Two justices wrote concurring opinions holding that education was not a fundamental right. See id. at 717-18 (Kavanagh & Levin, JJ., concurring).
112. Litigation is pending in Missouri. See G. Alan Hickrod et al., The Effect of Constitutional Litigation on Education Finance: A Preliminary Analysis, 18 J. EDUC. FIN. 180, 187 (1992); Rebell, supra note 14, at 693 n.6.
113. Litigation is pending in Missouri. See G. Alan Hickrod et al., The Effect of Constitutional Litigation on Education Finance: A Preliminary Analysis, 18 J. EDUC. FIN. 180, 187 (1992); Rebell, supra note 14, at 693 n.6.
114. See Board of Educ. v. Nyquist, 439 N.E.2d 359 (N.Y. 1982) (upholding a financing scheme against equal protection and education clause arguments despite acknowledging significant inequalities in funding; applying a rational basis review and concluding that the education clause is not a mandate for equality but only a guarantee of a basic education). Litigation is currently pending in New York, alleging that New York fails to provide a sound, basic education to children in New York City public schools. See Campaign for Fiscal Equity v. State, 655 N.E.2d 661 (N.Y. 1995) (holding that such allegations constitute a valid cause of action and also that claims under Title VI were valid).
115. See Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758 (Md. 1983) (concluding that the education clause, requiring thorough and efficient education, does not require equal spending, and that the financing scheme survives a rational basis test).
116. See Danson v. Casey, 399 A.2d 360 (Pa. 1979) (concluding that the education clause, which requires provision of a thorough and efficient education, does not require equalized spending per pupil).
117. See Theodore M. Shaw, Missouri v. Jenkins: Are We Really a Desegregated Society?, 61 FORDHAM L. REV. 57, 60 (1992) (noting that school districts that once intentionally segregated students "have become plaintiffs in school desegregation cases, seeking Milliken II relief against the state in an attempt to circumvent the limitations imposed by the Supreme Court in San Antonio Independent School District v. Rodriguez and other cases").
118. See Ryan, supra note 20.
119. See Missouri v. Jenkins, 515 U.S. 70 (1995); Freeman v. Pitts, 503 U.S. 467 (1992); Board of Educ. v. Dowell, 498 U.S. 237 (1991).
120. See Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 169 n.1 (1999) (noting cases in which federal courts returned control to local officials); see also Kerry A. White, Boston Weighs Return to Neighborhood Schools, EDUC. WK., July 8, 1998, at 3 (describing a proposal to return to a neighborhood school system in Boston).
121. See Bradley W. Joondeph, A Second Redemption?, 56 WASH. & LEE L. REV. 169, 169 n.1 (1999) (noting cases in which federal courts returned control to local officials); see also Kerry A. White, Boston Weighs Return to Neighborhood Schools, EDUC. WK., July 8, 1998, at 3 (describing a proposal to return to a neighborhood school system in Boston).
122. See Caroline Hendrie, Falling Stars, EDUC. WK., Feb. 25, 1998, at 34; Caroline Hendrie, In Indianapolis, Nashville, a New Era Dawns, EDUC. WK., July 8, 1998, at 8 [hereinafter Hendrie, In Indianapolis] (describing how a combined city-county council agreed to provide $206.8 million to a Nashville school district in exchange for ending a busing plan that began as a result of a 1955 lawsuit);
123. See Caroline Hendrie, Falling Stars, EDUC. WK., Feb. 25, 1998, at 34; Caroline Hendrie, In Indianapolis, Nashville, a New Era Dawns, EDUC. WK., July 8, 1998, at 8 [hereinafter Hendrie, In Indianapolis] (describing how a combined city-county council agreed to provide $206.8 million to a Nashville school district in exchange for ending a busing plan that began as a result of a 1955 lawsuit);
124. See Caroline Hendrie, Falling Stars, EDUC. WK., Feb. 25, 1998, at 34; Caroline Hendrie, In Indianapolis, Nashville, a New Era Dawns, EDUC. WK., July 8, 1998, at 8 [hereinafter Hendrie, In Indianapolis] (describing how a combined city-county council agreed to provide $206.8 million to a Nashville school district in exchange for ending a busing plan that began as a result of a 1955 lawsuit);
125. Caroline Hendrie, Judge Decides State Funds for Desegregation To End in K.C., EDUC. WK., Apr. 2, 1997, at 1; Caroline Hendrie, Judge Ends Desegregation Case in Cleveland, EDUC. WK., Apr. 8, 1998, at 3; Caroline Hendrie, Md. District Asks Court To End Busing, EDUC. WK., Aug. 7, 1996, at 7; Peter Schmidt, Desegregation Costs Put Ga., Ohio Officials at Odds with Districts, EDUC. WK., Mar. 18, 1992, at 20. One interesting exception to this trend is Indianapolis, which reached a settlement to end interdistrict busing in which local housing officials, the state, and the U.S. Department of Justice agreed to take a series of steps aimed at increasing the number of low-income and minority families that can find housing in the suburbs. See Hendrie, In Indianapolis, supra, at 9. In an unusual twist, the suburban districts, which were receiving inner-city students (and the additional state funding that accompanied them), have been vigorously opposing the termination of the desegregation decree. See id.
126. Caroline Hendrie, Judge Decides State Funds for Desegregation To End in K.C., EDUC. WK., Apr. 2, 1997, at 1; Caroline Hendrie, Judge Ends Desegregation Case in Cleveland, EDUC. WK., Apr. 8, 1998, at 3; Caroline Hendrie, Md. District Asks Court To End Busing, EDUC. WK., Aug. 7, 1996, at 7; Peter Schmidt, Desegregation Costs Put Ga., Ohio Officials at Odds with Districts, EDUC. WK., Mar. 18, 1992, at 20. One interesting exception to this trend is Indianapolis, which reached a settlement to end interdistrict busing in which local housing officials, the state, and the U.S. Department of Justice agreed to take a series of steps aimed at increasing the number of low-income and minority families that can find housing in the suburbs. See Hendrie, In Indianapolis, supra, at 9. In an unusual twist, the suburban districts, which were receiving inner-city students (and the additional state funding that accompanied them), have been vigorously opposing the termination of the desegregation decree. See id.
127. Caroline Hendrie, Judge Decides State Funds for Desegregation To End in K.C., EDUC. WK., Apr. 2, 1997, at 1; Caroline Hendrie, Judge Ends Desegregation Case in Cleveland, EDUC. WK., Apr. 8, 1998, at 3; Caroline Hendrie, Md. District Asks Court To End Busing, EDUC. WK., Aug. 7, 1996, at 7; Peter Schmidt, Desegregation Costs Put Ga., Ohio Officials at Odds with Districts, EDUC. WK., Mar. 18, 1992, at 20. One interesting exception to this trend is Indianapolis, which reached a settlement to end interdistrict busing in which local housing officials, the state, and the U.S. Department of Justice agreed to take a series of steps aimed at increasing the number of low-income and minority families that can find housing in the suburbs. See Hendrie, In Indianapolis, supra, at 9. In an unusual twist, the suburban districts, which were receiving inner-city students (and the additional state funding that accompanied them), have been vigorously opposing the termination of the desegregation decree. See id.
128. Caroline Hendrie, Judge Decides State Funds for Desegregation To End in K.C., EDUC. WK., Apr. 2, 1997, at 1; Caroline Hendrie, Judge Ends Desegregation Case in Cleveland, EDUC. WK., Apr. 8, 1998, at 3; Caroline Hendrie, Md. District Asks Court To End Busing, EDUC. WK., Aug. 7, 1996, at 7; Peter Schmidt, Desegregation Costs Put Ga., Ohio Officials at Odds with Districts, EDUC. WK., Mar. 18, 1992, at 20. One interesting exception to this trend is Indianapolis, which reached a settlement to end interdistrict busing in which local housing officials, the state, and the U.S. Department of Justice agreed to take a series of steps aimed at increasing the number of low-income and minority families that can find housing in the suburbs. See Hendrie, In Indianapolis, supra, at 9. In an unusual twist, the suburban districts, which were receiving inner-city students (and the additional state funding that accompanied them), have been vigorously opposing the termination of the desegregation decree. See id.
129. Caroline Hendrie, Judge Decides State Funds for Desegregation To End in K.C., EDUC. WK., Apr. 2, 1997, at 1; Caroline Hendrie, Judge Ends Desegregation Case in Cleveland, EDUC. WK., Apr. 8, 1998, at 3; Caroline Hendrie, Md. District Asks Court To End Busing, EDUC. WK., Aug. 7, 1996, at 7; Peter Schmidt, Desegregation Costs Put Ga., Ohio Officials at Odds with Districts, EDUC. WK., Mar. 18, 1992, at 20. One interesting exception to this trend is Indianapolis, which reached a settlement to end interdistrict busing in which local housing officials, the state, and the U.S. Department of Justice agreed to take a series of steps aimed at increasing the number of low-income and minority families that can find housing in the suburbs. See Hendrie, In Indianapolis, supra, at 9. In an unusual twist, the suburban districts, which were receiving inner-city students (and the additional state funding that accompanied them), have been vigorously opposing the termination of the desegregation decree. See id.
130. See ORFIELD ET AL., supra note 22, at 243, 254-61.
131. Id. 68. See id. at 262; WELLS & CRAIN, supra note 12, at 336 (reporting that the removal of the court order in the St. Louis desegregation case "would no doubt be the beginning of the end of extra state resources to the city schools" and that, at most, "the St. Louis school board will be bought off by the state with a set amount of money in return for agreeing to end the interdistrict program"); Shaw, supra note 61, at 59 ("Whatever accomplishments flowed from the court-ordered remedy may only be of passing significance depending upon when and how the school district and the state are released from court supervision.").
132. See, e.g., Enrich, supra note 31, at 121-42 (describing the progression of school finance litigation); Heise, supra note 31, at 1152-53 (describing three waves of school finance litigation); Thro, supra note 31, at 598 n.4 (claiming to have invented the classification); Julie K. Underwood & William E. Sparkman, School Finance Litigation: A New Wave of Reform, 14 HARV. J.L. & PUB. POL'Y 517, 520-35 (1991) (describing school finance litigation theories).
133. See, e.g., Enrich, supra note 31, at 121-42 (describing the progression of school finance litigation); Heise, supra note 31, at 1152-53 (describing three waves of school finance litigation); Thro, supra note 31, at 598 n.4 (claiming to have invented the classification); Julie K. Underwood & William E. Sparkman, School Finance Litigation: A New Wave of Reform, 14 HARV. J.L. & PUB. POL'Y 517, 520-35 (1991) (describing school finance litigation theories).
134. Serrano I, 487 P.2d 1241 (Cal. 1971) (finding that wealth is a suspect classification and education a fundamental right and striking down a property-based funding scheme on state and federal equal protection grounds).
135. 411 U.S. 1 (1973) (holding that education is not a fundamental right and upholding an unequal school finance scheme under rational basis review).
136. Robinson I, 303 A.2d 273 (N.J. 1973).
137. See, e.g., Dupree v. Alma Sch. Dist., 651 S.W.2d 90 (Ark. 1983) (holding that the financing scheme in question violates the state equal protection provision); Serrano v. Priest (Serrano II), 557 P.2d 929 (Cal. 1976) (rejecting the legislative response to Serrano I on the ground that it did not provide sufficient assurance of equalization, and holding that the legislative scheme had to ensure that funding would vary no more than $100 per pupil); Horton v. Meskill (Horton I), 376 A.2d 359 (Conn. 1977) (holding that the state equal protection clause requires substantial equality in funding education); Washakie County Sch. Dist. v. Herschler, 606 P.2d 310 (Wyo. 1980) (holding that the state finance scheme was in violation of the state equal protection clause, on the ground that education is a fundamental right and wealth a suspect classification).
138. Challenges were rejected in the following states: Arizona, see Shofstall v. Hollins, 515 P.2d 590 (Ariz. 1973) (rejecting an equal protection challenge to a financing scheme, despite finding education to be a fundamental right); Colorado, see Lujan v. Board of Educ., 649 P.2d 1005 (Colo. 1982) (holding that education is not a fundamental right under federal or state constitutions and that the state education clause does not require uniform expenditure levels); Georgia, see McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981) (upholding a state financing scheme, concluding that the "adequate education" clause requires more than minimum education but that the legislature must determine the content of an adequate education); Idaho, see Thompson v. Engelking, 537 P.2d 635 (Idaho 1975) (upholding a finance scheme against state equal protection and education clause challenges); Maryland, see Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758 (Md. 1983) (rejecting a challenge based on the state equal protection and education clauses and holding that the education clause does not require equal funding); New York, see Board of Educ. v. Nyquist, 439 N.E.2d 359 (N.Y. 1982) (upholding a finance scheme on the ground that the education clause is not a mandate of equality and that education is not a fundamental right); North Carolina, see Britt v. North Carolina Bd. of Educ., 357 S.E.2d 432 (N.C. Ct. App. 1987) (upholding a finance scheme on the ground that the "general and uniform" education clause guarantees only equal access to school and that the "equal opportunity" provision bars only racial segregation), dismissed on appeal, 361 S.E.2d 71 (N.C. 1987); Ohio, see Board of Educ. v. Walter, 390 N.E.2d 813 (Ohio 1979) (rejecting challenges based on state equal protection and education clauses on the grounds that the legislature has discretion in educational matters and that the court will not interfere with such discretion where education appears adequate); Oklahoma, see Fair Sch. Fin. Council v. State, 746 P.2d 1135 (Okla. 1987) (rejecting a challenge based on state equal protection and education clauses and holding that the education clause does not require equal funding); Oregon, see Olsen v. State, 554 P.2d 139 (Or. 1976) (holding that the state constitution requires the provision of only minimum educational opportunities); Pennsylvania, see Danson v. Casey, 399 A.2d 360 (Pa. 1979) (rejecting a challenge based on state equal protection and "thorough and efficient education" clauses); South Carolina, see Richland County v. Campbell, 364 S.E.2d 470 (S.C. 1988) (rejecting an equalization challenge based on the state's education and equal protection clauses); and Washington, see Northshore Sch. Dist. No. 417 v. Kinnear, 530 P.2d 178 (Wash. 1974) (rejecting an equalization challenge based on the state's education and equal protection provisions and concluding that the adequacy claim was not supported by evidence), overruled by Seattle Sch. Dist. No. 1 v. State, 585P.2d71 (Wash. 1978).
139. Successful challenges were brought in the following states: Arkansas, see Dupree, 651 S.W.2d at 90; California, see Serrano I, 487 P.2d at 1241; Serrano II, 557 P.2d at 929; Connecticut, see Horton I, 376 A.2d at 359; New Jersey, see Robinson I, 303 A.2d at 273; Washington, see Seattle Sch. Dist. No. 1, 585 P.2d at 71 (overruling Kinnear and invalidating a school finance scheme on the ground that the education clause requires the provision of a basic education and requires the state legislature to define the scope of a basic education and provide necessary funds); West Virginia, see Pauley v. Bailey, 324 S.E.2d 128 (W. Va. 1984) (ordering the implementation of a master plan but holding that educational standards set by a state board of education were insufficiently specific to satisfy the constitutional mandate); Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979) (holding that a school financing scheme must be adequate and equal, based on the "thorough and efficient" education clause and the equal protection clause, and remanding for development of standards); and Wyoming, see Herschler, 606 P.2d at 310 (invalidating a school finance scheme on the ground that it failed to provide substantially equal funding).
140. See George D. Brown, Binding Advisory Opinions: A Federal Courts Perspective on the State School Finance Decisions, 35 B.C. L. REV. 543, 544 (1994) (observing that "state supreme courts show [a] pattern of expansive declarations of right and duty coupled with an insistence that solutions must come from the legislative rather than the judicial branch").
141. See Rebell, supra note 14, at 693. As Rebell notes, [F]ew of the plaintiff victories have resulted in reforms that have demonstrably ameliorated the inequities. Although inter-district disparities have been reduced in some states, adverse results have followed many court interventions, and overall, the record is disappointing. In some states, court orders have been virtually ignored; in others, the courts have felt compelled repeatedly to strike down legislative responses which were inadequate or unconstitutional or both. Id. at 693-94 (citations omitted); see also Lewis B. Kaden, Courts and Legislatures in a Federal System: The Case of School Finance, 11 HOFSTRA L. REV. 1205, 1255-59 (1983) (advocating greater judicial involvement in the remedial phase of school finance litigation); Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 VAL. U. L. REV. 459, 468 (1996) (arguing that "successful litigation has more often been the product, not the cause, of a political consensus that the schools need fundamental change" and that "[w]ithout such consensus, a state court has limited ability to confront state political institutions"); Note, Unfulfilled Promises: School Finance Remedies and State Courts, 104 HARV. L. REV. 1072, 1072 (1991) (arguing that "legislative inertia and unwarranted judicial deference to the political branches in the remedial phase hinder the school finance plaintiffs prospects for securing a constitutional remedy").
142. See Rebell, supra note 14, at 693. As Rebell notes, [F]ew of the plaintiff victories have resulted in reforms that have demonstrably ameliorated the inequities. Although inter-district disparities have been reduced in some states, adverse results have followed many court interventions, and overall, the record is disappointing. In some states, court orders have been virtually ignored; in others, the courts have felt compelled repeatedly to strike down legislative responses which were inadequate or unconstitutional or both. Id. at 693-94 (citations omitted); see also Lewis B. Kaden, Courts and Legislatures in a Federal System: The Case of School Finance, 11 HOFSTRA L. REV. 1205, 1255-59 (1983) (advocating greater judicial involvement in the remedial phase of school finance litigation); Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 VAL. U. L. REV. 459, 468 (1996) (arguing that "successful litigation has more often been the product, not the cause, of a political consensus that the schools need fundamental change" and that "[w]ithout such consensus, a state court has limited ability to confront state political institutions"); Note, Unfulfilled Promises: School Finance Remedies and State Courts, 104 HARV. L. REV. 1072, 1072 (1991) (arguing that "legislative inertia and unwarranted judicial deference to the political branches in the remedial phase hinder the school finance plaintiffs prospects for securing a constitutional remedy").
143. See Rebell, supra note 14, at 693. As Rebell notes, [F]ew of the plaintiff victories have resulted in reforms that have demonstrably ameliorated the inequities. Although inter-district disparities have been reduced in some states, adverse results have followed many court interventions, and overall, the record is disappointing. In some states, court orders have been virtually ignored; in others, the courts have felt compelled repeatedly to strike down legislative responses which were inadequate or unconstitutional or both. Id. at 693-94 (citations omitted); see also Lewis B. Kaden, Courts and Legislatures in a Federal System: The Case of School Finance, 11 HOFSTRA L. REV. 1205, 1255-59 (1983) (advocating greater judicial involvement in the remedial phase of school finance litigation); Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 VAL. U. L. REV. 459, 468 (1996) (arguing that "successful litigation has more often been the product, not the cause, of a political consensus that the schools need fundamental change" and that "[w]ithout such consensus, a state court has limited ability to confront state political institutions"); Note, Unfulfilled Promises: School Finance Remedies and State Courts, 104 HARV. L. REV. 1072, 1072 (1991) (arguing that "legislative inertia and unwarranted judicial deference to the political branches in the remedial phase hinder the school finance plaintiffs prospects for securing a constitutional remedy").
144. See Rebell, supra note 14, at 693. As Rebell notes, [F]ew of the plaintiff victories have resulted in reforms that have demonstrably ameliorated the inequities. Although inter-district disparities have been reduced in some states, adverse results have followed many court interventions, and overall, the record is disappointing. In some states, court orders have been virtually ignored; in others, the courts have felt compelled repeatedly to strike down legislative responses which were inadequate or unconstitutional or both. Id. at 693-94 (citations omitted); see also Lewis B. Kaden, Courts and Legislatures in a Federal System: The Case of School Finance, 11 HOFSTRA L. REV. 1205, 1255-59 (1983) (advocating greater judicial involvement in the remedial phase of school finance litigation); Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 VAL. U. L. REV. 459, 468 (1996) (arguing that "successful litigation has more often been the product, not the cause, of a political consensus that the schools need fundamental change" and that "[w]ithout such consensus, a state court has limited ability to confront state political institutions"); Note, Unfulfilled Promises: School Finance Remedies and State Courts, 104 HARV. L. REV. 1072, 1072 (1991) (arguing that "legislative inertia and unwarranted judicial deference to the political branches in the remedial phase hinder the school finance plaintiffs prospects for securing a constitutional remedy").
145. See Ryan, supra note 20 (discussing the history of the New Jersey litigation).
146. Mark G. Yudof, School Finance Reform in Texas: The Edgewood Saga, 28 HARV. J. ON LEGIS. 499, 499 (1991).
147. See Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989).
148. See Helena Elementary Sch. Dist. v. State, 769 P.2d 684 (Mont. 1989).
149. The cases in Montana, Tennessee, Texas, and Vermont, for example, relied on equality theories rather than adequacy theories. See id. at 684; Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993); Edgewood Indep. Sch. Dist. v. Kirby (Edgewood I), 777 S.W.2d 391 (Tex. 1989); Brigham v. State, 692 A.2d 384 (Vt. 1997).
150. See Thro, supra note 31, at 603 (observing that in the third wave of cases, "instead of emphasizing equality of expenditures, the plaintiffs [typically] have argued that all children are entitled to an education of at least a certain quality and that more money is necessary to bring the worst school districts up to the minimum level mandated by the state education clause"); see also Heise, supra note 31, at 1153 (stating that "the third wave illustrates the replacement of traditional 'equity' court decisions with 'adequacy' decisions").
151. Successful challenges have been brought in Alabama, see Opinion of the Justices, 624 So. 2d 107 (Ala. 1993) (directing the state senate to follow the trial court order, which called for a new finance scheme); Arizona, see Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806, 814 (Ariz. 1994) (invalidating the system of funding school facilities after finding that the funding scheme caused "gross disparities"); Kentucky, see Rose, 790 S.W.2d at 215 (invalidating the "whole gamut" of the state's education system, including its financing structure, on the grounds that it violated equality and quality requirements derived from the state constitution's education clause); Massachusetts, see McDuffy v. Secretary of Executive Office of Educ. 615 N.E.2d 516, 524 (Mass. 1993) (holding that a property-tax-based financing scheme violated the state education clause requiring the state to "cherish" the public schools); Montana, see Helena Elementary, 769 P.2d at 690 (holding that substantial funding disparities meant that "the State has failed to provide a system of quality public education granting to each student the equality of educational opportunity guaranteed under" the Montana Constitution); New Hampshire, see Claremont Sch. Dist. v. Governor, 703 A.2d 1353 (N.H. 1997) (holding that the state violated its constitutional duty to guarantee adequate education and funding); New Jersey, see Abbott v. Burke (Abbott II) 575 A.2d 359 (N.J. 1990) (holding that the revised funding scheme still violated the state education clause); Ohio, see DeRolph v. State, 677 N.E.2d 733 (Ohio 1997) (holding that the state's public school financing system violated the state constitutional requirement of a thorough and efficient state school system); Tennessee, see Tennessee Small Sch. Sys., 851 S.W.2d at 139 (holding that a state finance scheme, which resulted in funding disparities and was justified only by local control of education, violated the state equal protection clause); Texas, see Edgewood I, 777 S.W.2d at 398 (holding that the finance scheme violated the state's "efficient system" education clause, which the court interpreted to require substantially equal access to education funding); Vermont, see Brigham, 692 A.2d at 384 (holding that the financing scheme violated the state constitution's education and common benefits clauses, which require the provision of substantial equality of educational opportunity throughout the state).
152. Challenges were rejected by the following state supreme courts: Florida, see Coalition for Adequacy and Fairness in Sch. Funding v. Chiles, 680 So. 2d 400 (Fla. 1996) (rejecting the claim that the state failed to provide an adequate system of public schools); Illinois, see Lewis E. v. Spagnolo, 710 N.E.2d 798 (Ill. 1999) (holding that the state education clause does not guarantee a minimally adequate education); Committee for Educ. Rights v. Edgar, 672 N.E.2d 1178 (Ill. 1996) (rejecting challenges based on state education and equal protections clauses); Maine, see School Admin. Dist. No. 1 v. Commissioner, Dep't of Educ., 659 A.2d 854 (Me. 1995) (holding that funding disparities bore a rational relationship to a legitimate government interest); Minnesota, see Skeen v. State, 505 N.W.2d 299 (Minn. 1993) (rejecting a challenge to a financing scheme based on state equal protection and education clauses); Nebraska, see Gould v. Orr, 506 N.W.2d 349 (Neb. 1993) (dismissing claims that spending disparities violated state constitutional rights on the ground that the plaintiffs failed to allege that disparities caused educational inadequacies); North Dakota, see Bismarck Pub. Sch. Dist. No. 1 v. State, 511 N.W.2d 247 (N.D. 1994) (finding that a school finance scheme failed to further the constitutional requirement of equal educational opportunity, but upholding the scheme because the court lacked the supermajority required to strike down legislation); Oregon, see Coalition for Equitable Sch. Funding v. State, 811 P.2d 116 (Or. 1991) (rejecting challenges based on state constitutional provisions on the ground that the constitution presupposes the use of local revenues to fund schools); Rhode Island, see City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995) (holding that a system for financing public schools did not violate the state constitution's equal protection and education clauses); Virginia, see Scott v. Commonwealth, 443 S.E.2d 138 (Va. 1994) (upholding a finance scheme against a challenge based on the state education clauses after finding that education is a fundamental right but that the constitution does not require equal funding or equal educational opportunity); Wisconsin, see Kukor v. Grover, 436 N.W.2d 568 (Wis. 1989) (rejecting a challenge based on the state equal protection and education clauses and holding that education is a fundamental right but that equal funding is not).
153. Again, however, it is important to recognize that four of the victories came in cases based on equality, rather than adequacy, theories. See Helena Elementary, 769 P.2d at 684; Tennessee Small Sch. Sys., 851 S.W.2d at 139; Edgewood I, 777 S.W.2d at 391; Brigham, 692 A.2d at 384. These victories suggest that the shift in theories may not in itself be responsible for the higher success rate in "third wave" cases.
154. See, e.g., Shaw, supra note 61, at 58-60.
155. Enrich, supra note 31, at 180.
156. The arguments put forth by Enrich and Heise, for example, are by no means incontrovertible. As alluded to above, Enrich and Heise contend that adequacy is a more promising goal for a number of reasons: It is less complex than equality and has a comparatively greater appeal to norms of fairness and opportunity; it is less threatening and more consistent with local control; there is a more explicit textual source for such a right; adequacy coheres with the standards movement; and it appeals to urban districts that already receive relatively high levels of funding. See id. at 166-70; Heise, supra note 31, at 1174-76. To respond briefly: Determining what is an adequate education seems no less complex (and perhaps is more so) than determining what is an equal education. At the same time, it is difficult to understand why adequacy is more normatively appealing than equality. Adequacy may indeed be less threatening to other school districts and more consistent with local control, but this seems an odd defense - intentional segregation may also be less threatening and more consistent with local control. The textual source argument seems false, if only because the language of most state education clauses is quite vague. I would suggest that it is harder to find adequacy in "thorough and efficient," "general and uniform," and "cherish" clauses than it is to find a principle of equality in the combination of education and equal protection clauses. The best arguments marshaled by Enrich and Heise seem to be that adequacy coheres with the standards movement and has the potential to provide more money to urban districts, many of which already spend above statewide averages. But equalizing funding is not inconsistent with the standards movement, and there is no guarantee that the right to an adequate education will lead to more money for urban districts. Indeed, to the extent that it is difficult to prove the relationship between money and student achievement, state funds to urban districts that continually perform poorly may actually be in jeopardy under an adequacy standard.
157. See Frank I. Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through The Fourteenth Amendment, 83 HARV. L. REV. 7, 58-59 (1969).
158. See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 112 (1949) ("The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.") (Jackson, J., concurring); see also THE FEDERALIST No. 10 (James Madison); Liebman, supra note 13, at 362; Michelman, supra note 90, at 53-54.
159. See MASSEY & DENTON, supra note 2, at 62 (reporting that over half of all blacks in the United States live within 30 large metropolitan areas); George C. Galster, Polarization, Place, and Race, 71 N.C. L. REV. 1421, 1439 (1993) ("Nationally, two-thirds of African-American students and nearly half of other minority students attend primary and secondary schools in central-city districts, whereas less than a quarter of white students do so."); Gary Orfield et al., Deepening Segregation in American Public Schools 11 (Apr. 5, 1997) (unpublished paper prepared by the Harvard Project on School Desegregation) (on file with The Yale Law Journal) (reporting that 67.1% of black students are in schools whose enrollment is less than 50% white, and that 33.6% of black students are in schools whose enrollment is less than 10% white - that is, one-third of all black students attend schools whose student bodies are 90% to 100% minority). As is already apparent, this Article focuses on African-American and white students rather than students from all ethnic groups. While recognizing that the student population is more diverse than this portrays, and that the burgeoning Hispanic student population faces many of the same obstacles as do black students, I limit my focus because of the unique history of white-black race relations in this country and because of the greater
160. See COUNCIL OF GREAT CITY SCH., NATIONAL URBAN EDUCATION GOALS: BASELINE INDICATORS, 1990-91, at xi (1992) [hereinafter NATIONAL URBAN EDUCATION GOALS]; see also ORFIELD ET AL., supra note 22, at 61-63. To cite another, slightly outdated figure: As of 1986, the 25 largest urban school systems educated 27% of the country's African-American students but only 3% of the white students. See Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 MINN. L. REV. 825, 842 (1996).
161. See COUNCIL OF GREAT CITY SCH., NATIONAL URBAN EDUCATION GOALS: BASELINE INDICATORS, 1990-91, at xi (1992) [hereinafter NATIONAL URBAN EDUCATION GOALS]; see also ORFIELD ET AL., supra note 22, at 61-63. To cite another, slightly outdated figure: As of 1986, the 25 largest urban school systems educated 27% of the country's African-American students but only 3% of the white students. See Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 MINN. L. REV. 825, 842 (1996).
162. See COUNCIL OF GREAT CITY SCH., NATIONAL URBAN EDUCATION GOALS: BASELINE INDICATORS, 1990-91, at xi (1992) [hereinafter NATIONAL URBAN EDUCATION GOALS]; see also ORFIELD ET AL., supra note 22, at 61-63. To cite another, slightly outdated figure: As of 1986, the 25 largest urban school systems educated 27% of the country's African-American students but only 3% of the white students. See Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, 80 MINN. L. REV. 825, 842 (1996).
163. See Craig D. Jerald & Bridget K. Curran, By the Numbers: The Urban Picture, EDUC. WK., Jan. 8, 1998, at 56.
164. See Galster, supra note 92, at 1439.
165. Id. 97. See NATIONAL URBAN EDUCATION GOALS, supra note 93, at xi. Title I is a federal program ostensibly designed to provide monetary assistance to poor students and poor schools. See 20 U.S.C. §§ 6301-6514 (1994).
166. See Orfield et al., supra note 92, at 19.
167. See Jerald & Curran, supra note 94, at 64-65.
168. Concentrated Poverty, EDUC. WK., Jan. 8, 1998, at 14.
169. See Jerald & Curran, supra note 94, at 62-63.
170. See, e.g., Christopher Jencks & Meredith Phillips, The Black-White Test Score Gap: An Introduction, in THE BLACK-WHITE TEST SCORE GAP 1, 1 (Christopher Jencks & Meredith Phillips eds., 1998) (reporting that "the typical American black still scores below 75 per cent of American whites on most standardized tests" and "below more than 85 per cent of whites" on some standardized tests (footnotes omitted)).
171. Lynn Olson & Craig D. Jerald, The Achievement Gap, EDUC. WK., Jan. 8, 1998, at 10.
172. See id. The figures are from the National Assessment of Educational Progress (NAEP), a federal testing program given to a randomized sample of students throughout the country. The NAEP is generally thought to provide the best and most reliable data for state-by-state comparisons of student performance. See id. at 12.
173. See id. at 10.
174. See id. at 12. When individual states are examined, the gap between urban and non-urban schools can be quite dramatic: In Maryland, for example, only 9% of urban eighth-grade students scored at the "basic" level or higher on the NAEP in mathematics, compared to 63% of the students in non-urban districts; in New Jersey, 73% of fourth-grade students perform at least at the basic level in reading on the NAEP, whereas only 27% of those in urban districts do. See id. at 11. These examples are by no means exhaustive. For a table of the largest gaps between urban and non-urban districts, which lists the gaps in reading, math, and science in nine states, see id. 107. See Galster, supra note 92, at 1423.
175. See NATIONAL URBAN EDUCATION GOALS, supra note 93, at xvi.
176. See Abbott v. Burke (Abbott IV), 693 A.2d 417, 433 n.22 (N.J. 1997) (citing Abbott II, 575 A.2d 359 (N.J. 1990)); see also PHILIP BURCH, THE DROPOUT PROBLEM IN NEW JERSEY'S BIG URBAN SCHOOLS: EDUCATIONAL INEQUALITY AND GOVERNMENTAL INACTION at ix (1992) (noting that "there are really two school systems in New Jersey - one consisting of most suburban and rural districts, which have relatively low dropout rates and few major academic problems; the other consisting of a much smaller number of big, needy urban districts, many of which have [four-year] dropout rates of from 40 to 60 percent"); EDUCATION LAW CTR., WIPING OUT DISADVANTAGES 3 (1996) [hereinafter WIPING OUT DISADVANTAGES] (stating that poorer, urban high schools in New Jersey have dropout rates of 40% to 50%).
177. See Abbott v. Burke (Abbott IV), 693 A.2d 417, 433 n.22 (N.J. 1997) (citing Abbott II, 575 A.2d 359 (N.J. 1990)); see also PHILIP BURCH, THE DROPOUT PROBLEM IN NEW JERSEY'S BIG URBAN SCHOOLS: EDUCATIONAL INEQUALITY AND GOVERNMENTAL INACTION at ix (1992) (noting that "there are really two school systems in New Jersey - one consisting of most suburban and rural districts, which have relatively low dropout rates and few major academic problems; the other consisting of a much smaller number of big, needy urban districts, many of which have [four-year] dropout rates of from 40 to 60 percent"); EDUCATION LAW CTR., WIPING OUT DISADVANTAGES 3 (1996) [hereinafter WIPING OUT DISADVANTAGES] (stating that poorer, urban high schools in New Jersey have dropout rates of 40% to 50%).
178. See Abbott v. Burke (Abbott IV), 693 A.2d 417, 433 n.22 (N.J. 1997) (citing Abbott II, 575 A.2d 359 (N.J. 1990)); see also PHILIP BURCH, THE DROPOUT PROBLEM IN NEW JERSEY'S BIG URBAN SCHOOLS: EDUCATIONAL INEQUALITY AND GOVERNMENTAL INACTION at ix (1992) (noting that "there are really two school systems in New Jersey - one consisting of most suburban and rural districts, which have relatively low dropout rates and few major academic problems; the other consisting of a much smaller number of big, needy urban districts, many of which have [four-year] dropout rates of from 40 to 60 percent"); EDUCATION LAW CTR., WIPING OUT DISADVANTAGES 3 (1996) [hereinafter WIPING OUT DISADVANTAGES] (stating that poorer, urban high schools in New Jersey have dropout rates of 40% to 50%).
179. See WELLS & CRAIN, supra note 12, at 337.
180. See Jerald & Curran, supra note 94, at 66-67. Sometimes urban districts will under-report dropout rates for political or financial reasons. It is thus difficult to obtain truly accurate rates and fair to assume that the reported numbers will not overestimate the dropout rates and will occasionally underestimate those rates. For a discussion of the difficulties in obtaining a precise dropout figure for New York City Schools, see JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS 112-13 (1991).
181. See Jerald & Curran, supra note 94, at 66-67. Sometimes urban districts will under-report dropout rates for political or financial reasons. It is thus difficult to obtain truly accurate rates and fair to assume that the reported numbers will not overestimate the dropout rates and will occasionally underestimate those rates. For a discussion of the difficulties in obtaining a precise dropout figure for New York City Schools, see JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS 112-13 (1991).
182. See KOZOL, supra note 111, at 58.
183. See generally ARMOR, supra note 22, at 117-53; KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES (1985); MASSEY & DENTON, supra note 2; MYRON ORFIELD, METROPOLITICS: A REGIONAL AGENDA FOR COMMUNITY AND STABILITY (1997); GREGORY R. WEIHER, THE FRACTURED METROPOLIS: POLITICAL FRAGMENTATION AND METROPOLITAN SEGREGATION (1991).
184. See generally ARMOR, supra note 22, at 117-53; KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES (1985); MASSEY & DENTON, supra note 2; MYRON ORFIELD, METROPOLITICS: A REGIONAL AGENDA FOR COMMUNITY AND STABILITY (1997); GREGORY R. WEIHER, THE FRACTURED METROPOLIS: POLITICAL FRAGMENTATION AND METROPOLITAN SEGREGATION (1991).
185. See generally ARMOR, supra note 22, at 117-53; KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES (1985); MASSEY & DENTON, supra note 2; MYRON ORFIELD, METROPOLITICS: A REGIONAL AGENDA FOR COMMUNITY AND STABILITY (1997); GREGORY R. WEIHER, THE FRACTURED METROPOLIS: POLITICAL FRAGMENTATION AND METROPOLITAN SEGREGATION (1991).
186. See generally Florence Wagman Roisman, The Lessons of American Apartheid: The Necessity and Means of Promoting Residential Racial Integration, 81 IOWA L. REV. 479 (1995) (reviewing MASSEY & DENTON, supra note 2, and discussing the extent, causes, and consequences of segregation).
187. See ARMOR, supra note 22, at 127; JACKSON, supra note 113, at 190-230, 289-90, 300-01; MASSEY & DENTON, supra note 2, at 19-82, 221-22; Roisman, supra note 114, at 481.
188. See ARMOR, supra note 22, at 127-28; MASSEY & DENTON, supra note 2, at 63.
189. See MASSEY & DENTON, supra note 2, at 222 tbl.8.1.
190. See id. at 66-67; see also id. at 2 ("No group in the history of the United States has ever experienced the sustained high level of residential segregation that has been imposed on blacks in large American cities for the past fifty years.").
191. See id. at 74-78.
192. See id. at 75, 77. As Massey and Denton note: "Ironically, within a large, diverse, and highly mobile post-industrial society such as the United States, blacks living in the heart of the ghetto are among the most isolated people on earth." Id. at 77.
193. See id. The overall lack of change in integration levels does mask some important variations. Since 1970, there have been significant declines in black segregation in some small and mid-sized metropolitan areas in the South and West, particularly those with relatively small black populations, while segregation has continued unabated in larger metropolitan communities, particularly those in the Northeast and Midwest. See id. at 109-10. Even in the limited context of large metropolitan areas, there are differences between the South and North: In the 1980s, six of the 12 Southern metropolitan areas with the largest black populations experienced modest declines in segregation, while very little change occurred in Northern metropolitan areas. See id. at 221-22 & tbl.8.1. When these statistics are taken together, then, it appears that integration is more likely to occur in Southern metropolitan areas, especially in areas that have small black populations. See id. at 110, 223: see also Reynolds Farley & William H. Frey, Changes in the Segregation of Whites from Blacks During the 1980s: Small Steps Toward a More Integrated Society, 59 AM. SOC. REV. 23, 38-40 (1994).
194. For a collection of sources and a discussion of competing explanations for these trends, see Roisman, supra note 114, at 484-87.
195. This fact is significant in part because a large chunk (usually close to 50%) of school funds comes from local property taxes, and thus residential segregation within the same town would have less impact on school finance than does the existing residential segregation between poorer and wealthier towns. See Robert C. Johnstone & Jessica L. Sandham, States Increasingly Flexing Their Policy Muscle, EDUC. WK., Apr. 14, 1999, at 1.
196. See Thomas F. Pettigrew, Racial Change and Social Policy, 441 ANNALS OF AM. ACAD. POL. SCI. 114, 122 (1979). Pettigrew found that, as of 1974, blacks were twice as likely as whites in metropolitan areas to live inside the core city rather than in the suburbs. As he stated then, in an observation that is still relevant and accurate: "This doubled proportion of blacks in central cities is the basic fact underlying the spatial maldistribution of the races; and it is the largest single reason for the vast residential separation of black and white citizens in America today." Id. at 122; see also MASSEY & DENTON, supra note 2, at 67-74 (discussing trends in suburbanization and segregation since 1970).
197. See Thomas F. Pettigrew, Racial Change and Social Policy, 441 ANNALS OF AM. ACAD. POL. SCI. 114, 122 (1979). Pettigrew found that, as of 1974, blacks were twice as likely as whites in metropolitan areas to live inside the core city rather than in the suburbs. As he stated then, in an observation that is still relevant and accurate: "This doubled proportion of blacks in central cities is the basic fact underlying the spatial maldistribution of the races; and it is the largest single reason for the vast residential separation of black and white citizens in America today." Id. at 122; see also MASSEY & DENTON, supra note 2, at 67-74 (discussing trends in suburbanization and segregation since 1970).
198. See ANYON, supra note 13, at 4.
199. MASSEY & DENTON, supra note 2, at 61.
200. See id. at 67-74.
201. See ANYON, supra note 13, at 4.
202. See MASSEY & DENTON, supra note 2, at 69-70; see also John Charles Boger, Race and the American City: The Kerner Commission in Retrospect - An Introduction, 71 N.C. L. REV. 1289, 1310-13 (1993) (noting that in many suburbs, most black households are located in majority-black areas).
203. See MASSEY & DENTON, supra note 2, at 69-70; see also John Charles Boger, Race and the American City: The Kerner Commission in Retrospect - An Introduction, 71 N.C. L. REV. 1289, 1310-13 (1993) (noting that in many suburbs, most black households are located in majority-black areas).
204. See ARMOR, supra note 22, at 117-53; JACKSON, supra note 113, at 283-305; MASSEY & DENTON, supra note 2, at 83-114.
205. Compare, e.g., MASSEY & DENTON, supra note 2, at 88-96 (arguing that preferences play a small role in African-American segregation), with ARMOR, supra note 22, at 141 (arguing that preferences play a large role).
206. That race is the key factor in residential segregation is also persuasively demonstrated by the differing levels of segregation for Caribbean Hispanics, a group that consists mainly of Puerto Ricans and Cubans but also includes Dominicans and Panamanians. Caribbean Hispanics share a similar cultural background but display a wide variety of racial characteristics and identities. Some consider themselves white, some black, and others of mixed race. Massey and Denton examined segregation levels among Hispanics in 10 metropolitan areas and calculated those levels for three racial groups: white Hispanics, mixed-race Hispanics, and black Hispanics. They found that white Hispanics were the least segregated, black Hispanics the most segregated, and that mixed-race Hispanics fell in between, just as one would expect if race were the salient factor in residential segregation. See MASSEY & DENTON, supra note 2, at 113-14.
207. See George C. Galster & W. Mark Keeney, Race, Residence, Discrimination, and Economic Opportunity: Modeling the Nexus of Urban Racial Phenomena, 24 URB. AFF. Q. 87, 92-93 (1988) (discussing the scholarly literature and concluding that "the evidence shows that in most cases only a small fraction of the observed extent of racial segregation can be explained on 'class' grounds"). That income levels cannot completely explain residential segregation is apparent from the fact that blacks in metropolitan areas are highly segregated from whites, no matter what their income. In Northern metropolitan areas, for example, blacks earning less than $2500 in 1980 were only slightly more segregated than blacks earning more than $50,000. See id. at 92-93. For Hispanics and Asians, by contrast, not only are overall segregation levels lower, but those levels fall noticeably as income levels rise. Similar patterns are revealed when segregation levels are correlated by job and education. Blacks are highly segregated at all socioeconomic levels, while Hispanics and Asians become less segregated as socioeconomic levels rise. See MASSEY & DENTON, supra note 2, at 84-87. And, again, even when blacks do move to the suburbs, there is evidence that they live in majority-black areas. See Boger, supra note 128, at 1310-13.
208. See George C. Galster & W. Mark Keeney, Race, Residence, Discrimination, and Economic Opportunity: Modeling the Nexus of Urban Racial Phenomena, 24 URB. AFF. Q. 87, 92-93 (1988) (discussing the scholarly literature and concluding that "the evidence shows that in most cases only a small fraction of the observed extent of racial segregation can be explained on 'class' grounds"). That income levels cannot completely explain residential segregation is apparent from the fact that blacks in metropolitan areas are highly segregated from whites, no matter what their income. In Northern metropolitan areas, for example, blacks earning less than $2500 in 1980 were only slightly more segregated than blacks earning more than $50,000. See id. at 92-93. For Hispanics and Asians, by contrast, not only are overall segregation levels lower, but those levels fall noticeably as income levels rise. Similar patterns are revealed when segregation levels are correlated by job and education. Blacks are highly segregated at all socioeconomic levels, while Hispanics and Asians become less segregated as socioeconomic levels rise. See MASSEY & DENTON, supra note 2, at 84-87. And, again, even when blacks do move to the suburbs, there is evidence that they live in majority-black areas. See Boger, supra note 128, at 1310-13.
209. See George C. Galster & W. Mark Keeney, Race, Residence, Discrimination, and Economic Opportunity: Modeling the Nexus of Urban Racial Phenomena, 24 URB. AFF. Q. 87, 92-93 (1988) (discussing the scholarly literature and concluding that "the evidence shows that in most cases only a small fraction of the observed extent of racial segregation can be explained on 'class' grounds"). That income levels cannot completely explain residential segregation is apparent from the fact that blacks in metropolitan areas are highly segregated from whites, no matter what their income. In Northern metropolitan areas, for example, blacks earning less than $2500 in 1980 were only slightly more segregated than blacks earning more than $50,000. See id. at 92-93. For Hispanics and Asians, by contrast, not only are overall segregation levels lower, but those levels fall noticeably as income levels rise. Similar patterns are revealed when segregation levels are correlated by job and education. Blacks are highly segregated at all socioeconomic levels, while Hispanics and Asians become less segregated as socioeconomic levels rise. See MASSEY & DENTON, supra note 2, at 84-87. And, again, even when blacks do move to the suburbs, there is evidence that they live in majority-black areas. See Boger, supra note 128, at 1310-13.
210. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED 20-62 (1987); see also John D. Kasarda, Urban Industrial Transition and the Underclass, 501 ANNALS AM. ACAD. POL. & SOC. SCI. 26, 28-33 (1989).
211. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED 20-62 (1987); see also John D. Kasarda, Urban Industrial Transition and the Underclass, 501 ANNALS AM. ACAD. POL. & SOC. SCI. 26, 28-33 (1989).
212. Compare MASSEY & DENTON, supra note 2, at 240 n.28, 116-18, 144-45 (arguing that evidence of black middle-class out-migration is inconclusive and that such migration did not affect concentrated poverty in inner-city neighborhoods), with WILSON, supra note 133, at 49-62 (arguing that concentrated poverty arose in the inner cities because middle-class blacks left in the 1970s); see also Roisman, supra note 114, at 500-06. Moreover, Boger explains that, while a significant number of blacks did move to the suburbs between 1968 and 1993, the moves of African-American suburbanites most often led them not to "white" or racially integrated suburbs, but instead to older, near-city suburbs where residents are predominantly black or that quickly undergo racial transition to majority-black status after racial integration begins. Thus, suburban blacks in 1993 typically find themselves, as in yesterday's cities, residentially segregated from the white majority. Boger, supra note 128, at 1312-13.
213. See MASSEY & DENTON, supra note 2, at 130-147, 165-185; see also JENNIFER L. HOCHSCHILD, THE NEW AMERICAN DILEMMA 65, 172 (1984);
214. See MASSEY & DENTON, supra note 2, at 130-147, 165-185; see also JENNIFER L. HOCHSCHILD, THE NEW AMERICAN DILEMMA 65, 172 (1984);
215. WILSON, supra note 133, at 49, 55-62; Johnson, supra note 5, at 1411-12; Roisman, supra note 114, at 499-500.
216. See, e.g., MASSEY & DENTON, supra note 2, at 3-9 and sources cited therein; John O. Calmore, Racialized Space and the Culture of Segregation: "Hewing a Stone of Hope from a Mountain of Despair," 143 U. PA. L. REV. 1233, 1246-49 (1995).
217. MASSEY & DENTON, supra note 2, at 13.
218. See Milliken I, 418 U.S. at 717.
219. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 9-10 (1971) (describing a Southern school district that encompassed both the city and the surrounding county).
220. See ORFIELD ET AL., supra note 22, at 30 ("Milliken meant that there would be no remedy for unconstitutional segregation in much of metropolitan America."); Chemerinsky, supra note 18, at 1010-11. Since Milliken I, only four courts have ordered interdistrict desegregation remedies: Indianapolis, see United States v. Board of Sen. Comm'rs, 637 F.2d 1101 (7th Cir. 1980); Little Rock, see Little Rock Sen. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404 (8th Cir. 1985); Louisville, see Newburg Area Council v. Board of Educ., 510 F.2d 1358 (6th Cir. 1974); and Wilmington, Delaware, see Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978). But see Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752 (3d Cir. 1996) (declaring Wilmington schools unitary). A federal court in St. Louis approved a settlement involving voluntary interdistrict busing. See Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984). For a fascinating account of the St. Louis desegregation plan, see WELLS & CRAIN, supra note 12.
221. J. Harvie Wilkinson, for one, called the case of "signal" importance and suggested that the Justices could reasonably have feared that "Milliken . . . might one day be regarded as this century's Plessy v. Ferguson." WILKJNSON, supra note 38, at 218, 228; see also ORFIELD ET AL., supra note 22, at 10 (arguing that "[t]he impetus of Brown and the civil rights movement for desegregating American schools hit a stone wall with the 1974 Milliken v. Bradley decision"); id. at 33 (arguing that "Milliken and the recent desegregation decisions of the 1990s echo some of Plessy's basic themes and employ arguments paralleling some of those used to justify an end to Reconstruction-era civil rights law").
222. Detroit is a perfect example. See Milliken II, 433 U.S. at 271-72 & n.3 (discussing the racial composition of the Detroit school district); see also Orfield, supra note 93, at 842 (noting that in 1986, 25 of the largest school systems contained 30% of the nation's Latino students, 27% of African-American students, and only 3% of white students).
223. See HOCHSCHILD, supra note 135, at 55; J. ANTHONY LUCAS, COMMON GROUND 17 (1985).
224. See HOCHSCHILD, supra note 135, at 57, 69; WILKINSON, supra note 38, at 193-215.
225. See, e.g., ARMOR, supra note 22, at 174-80; CHRISTINE H. RUSSELL, THE CARROT OR THE STICK 65-71 (1990).
226. See, e.g., ARMOR, supra note 22, at 174-94. Armor concludes from the evidence that school desegregation contributes to white flight and that the flight can be quite large for some school systems, especially those systems that are larger, have higher minority concentrations, and have suburban or private school systems that can serve as alternatives for those who flee a desegregation plan or for new residents who want to avoid one. Id. at 180. County-wide plans, by contrast, which encompass both city and suburb, are usually associated with much less white flight. See infra notes 150-153 and accompanying text; see also ORFIELD ET AL., supra note 22, at 316-17 (noting that two of the largest county-wide districts with mandatory desegregation plans, Charlotte and Raleigh, North Carolina, have had a rising proportion of white students in recent years and also have been growing rapidly in the 1990s).
227. See School Desegregation: A Social Science Statemement, in Brief of the NAACP, DeKalb County, Georgia in support of respondents Pitts et al., at 6a-7a, Freeman v. Pitts, 503 U.S. 467 (1992) (No 89-1290) [hereinafter Social Science Statement]; ARMOR, supra note 22, at 72, 209; HOCHSCHILD, supra note 135, at 60, 61; ORFIELD ET AL., supra note 22, at 94-95 (discussing, inter alia, the fact that Atlanta never bused but nonetheless became nearly nine-tenths black).
228. See JEFFRIES, supra note 38, at 318; see also ORFIELD ET AL., supra note 22, at 96 (noting that the least stable desegregation plans are "those that involve mandatory desegregation in heavily minority central cities surrounded by unaffected white suburbs," which is "precisely the kind of plan the courts were requiring because of the limitation in the Milliken I decision").
229. See JEFFRIES, supra note 38, at 318.
230. See, e.g., FINIG WELCH & AUDREY LIGHT, U.S. COMM'N ON CIVIL RIGHTS, NEW EVIDENCE ON SCHOOL DESEGREGATION 40 (1987). In the only study of desegregation funded by the federal government during the Reagan years, a team of researchers examining the 125 largest school districts found that desegregation plans halved the percentage of black students in all minority schools during a period when housing segregation increased. The study also found that more geographically extensive remedies had greater impact, without concomitant increases in white flight. See HOCHSCHILD, supra note 135, at 64; ORFIELD ET AL., supra note 22, at 316 ("[T]he proportion of white students remains much more stable in a number of districts with county wide city-suburban mandatory desegregation."); WELLS & CRAIN, supra note 12, at 71; Orfield, supra note 93, at 831. But see Christine H. Rossell, An Analysis of the Court Decisions in Sheff v. O'Neill and Possible Remedies for Racial Isolation, 29 CONN. L. REV. 1187, 1208-17 (1997) (disputing the significance of the city-versus-metropolitan distinction and arguing that the key distinction is between mandatory and voluntary plans). Although Rossell concedes that mandatory desegregation plans over a large geographic area show nearly 10% less white flight over time than do similar plans covering smaller geographic areas, she argues that data tend to support the position that voluntary desegregation plans produce the least white flight and that mandatory desegregation plans - whether city-only or metropolitan - produce the most. See id. at 1212, 1214; see also Christine H. Rossell & David J. Armor, The Effectiveness of School Desegregation Plans, 1968-1991, 24 AM. POL. Q. 267 (1996). Although Rossell's point that the voluntary-mandatory distinction is crucial is well taken, it is significant that she and David Armor, the two leading critics of mandatory desegregation, agree that city-only plans lead to greater white flight than do metropolitan plans.
231. See, e.g., FINIG WELCH & AUDREY LIGHT, U.S. COMM'N ON CIVIL RIGHTS, NEW EVIDENCE ON SCHOOL DESEGREGATION 40 (1987). In the only study of desegregation funded by the federal government during the Reagan years, a team of researchers examining the 125 largest school districts found that desegregation plans halved the percentage of black students in all minority schools during a period when housing segregation increased. The study also found that more geographically extensive remedies had greater impact, without concomitant increases in white flight. See HOCHSCHILD, supra note 135, at 64; ORFIELD ET AL., supra note 22, at 316 ("[T]he proportion of white students remains much more stable in a number of districts with county wide city-suburban mandatory desegregation."); WELLS & CRAIN, supra note 12, at 71; Orfield, supra note 93, at 831. But see Christine H. Rossell, An Analysis of the Court Decisions in Sheff v. O'Neill and Possible Remedies for Racial Isolation, 29 CONN. L. REV. 1187, 1208-17 (1997) (disputing the significance of the city-versus-metropolitan distinction and arguing that the key distinction is between mandatory and voluntary plans). Although Rossell concedes that mandatory desegregation plans over a large geographic area show nearly 10% less white flight over time than do similar plans covering smaller geographic areas, she argues that data tend to support the position that voluntary desegregation plans produce the least white flight and that mandatory desegregation plans - whether city-only or metropolitan - produce the most. See id. at 1212, 1214; see also Christine H. Rossell & David J. Armor, The Effectiveness of School Desegregation Plans, 1968-1991, 24 AM. POL. Q. 267 (1996). Although Rossell's point that the voluntary-mandatory distinction is crucial is well taken, it is significant that she and David Armor, the two leading critics of mandatory desegregation, agree that city-only plans lead to greater white flight than do metropolitan plans.
232. See, e.g., FINIG WELCH & AUDREY LIGHT, U.S. COMM'N ON CIVIL RIGHTS, NEW EVIDENCE ON SCHOOL DESEGREGATION 40 (1987). In the only study of desegregation funded by the federal government during the Reagan years, a team of researchers examining the 125 largest school districts found that desegregation plans halved the percentage of black students in all minority schools during a period when housing segregation increased. The study also found that more geographically extensive remedies had greater impact, without concomitant increases in white flight. See HOCHSCHILD, supra note 135, at 64; ORFIELD ET AL., supra note 22, at 316 ("[T]he proportion of white students remains much more stable in a number of districts with county wide city-suburban mandatory desegregation."); WELLS & CRAIN, supra note 12, at 71; Orfield, supra note 93, at 831. But see Christine H. Rossell, An Analysis of the Court Decisions in Sheff v. O'Neill and Possible Remedies for Racial Isolation, 29 CONN. L. REV. 1187, 1208-17 (1997) (disputing the significance of the city-versus-metropolitan distinction and arguing that the key distinction is between mandatory and voluntary plans). Although Rossell concedes that mandatory desegregation plans over a large geographic area show nearly 10% less white flight over time than do similar plans covering smaller geographic areas, she argues that data tend to support the position that voluntary desegregation plans produce the least white flight and that mandatory desegregation plans - whether city-only or metropolitan - produce the most. See id. at 1212, 1214; see also Christine H. Rossell & David J. Armor, The Effectiveness of School Desegregation Plans, 1968-1991, 24 AM. POL. Q. 267 (1996). Although Rossell's point that the voluntary-mandatory distinction is crucial is well taken, it is significant that she and David Armor, the two leading critics of mandatory desegregation, agree that city-only plans lead to greater white flight than do metropolitan plans.
233. See, e.g., FINIG WELCH & AUDREY LIGHT, U.S. COMM'N ON CIVIL RIGHTS, NEW EVIDENCE ON SCHOOL DESEGREGATION 40 (1987). In the only study of desegregation funded by the federal government during the Reagan years, a team of researchers examining the 125 largest school districts found that desegregation plans halved the percentage of black students in all minority schools during a period when housing segregation increased. The study also found that more geographically extensive remedies had greater impact, without concomitant increases in white flight. See HOCHSCHILD, supra note 135, at 64; ORFIELD ET AL., supra note 22, at 316 ("[T]he proportion of white students remains much more stable in a number of districts with county wide city-suburban mandatory desegregation."); WELLS & CRAIN, supra note 12, at 71; Orfield, supra note 93, at 831. But see Christine H. Rossell, An Analysis of the Court Decisions in Sheff v. O'Neill and Possible Remedies for Racial Isolation, 29 CONN. L. REV. 1187, 1208-17 (1997) (disputing the significance of the city-versus-metropolitan distinction and arguing that the key distinction is between mandatory and voluntary plans). Although Rossell concedes that mandatory desegregation plans over a large geographic area show nearly 10% less white flight over time than do similar plans covering smaller geographic areas, she argues that data tend to support the position that voluntary desegregation plans produce the least white flight and that mandatory desegregation plans - whether city-only or metropolitan - produce the most. See id. at 1212, 1214; see also Christine H. Rossell & David J. Armor, The Effectiveness of School Desegregation Plans, 1968-1991, 24 AM. POL. Q. 267 (1996). Although Rossell's point that the voluntary-mandatory distinction is crucial is well taken, it is significant that she and David Armor, the two leading critics of mandatory desegregation, agree that city-only plans lead to greater white flight than do metropolitan plans.
234. See Christine H. Rossell & Willis D. Hawley, Understanding White Flight and Doing Something About It, in EFFECTIVE SCHOOL DESEGREGATION 157, 166 (Willis D. Hawley ed., 1981). Rossell's position regarding the relationship between desegregation and white flight has changed through the years, from arguing that school desegregation is not a significant cause of white flight to concluding that it is. See ARMOR, supra note 22, at 176. Her position regarding the significance of metropolitan-versus-city-only plans also appears to have changed. Again, the important point to draw from the shifting positions and conflicting studies is that, despite debate about the degree of difference, there appears to be consensus that metropolitan plans do in fact result in less white flight than do city-only plans.
235. See ORFIELD ET AL., supra note 22, at 61-63; see also Gerald E. Frug, City Services, 73 N.Y.U. L. REV. 23, 61 n.115 (1998) (noting that there has been no major shift overall of whites to private schools). This is not to deny that there has been white flight to private schools. Although obtaining precise or comprehensive figures is difficult, white flight to private schools has certainly occurred (and continues to occur), as demonstrated by the discrepancy between the percentage of whites or white children living in certain urban areas and the percentage of white students in urban schools. In Boston, for example, 60% of the population is white, but only 15% of the public school students are white; in New Orleans, the population is 35% white, while the student enrollment in public schools is only 6% white. Again, however, white flight to private schools has been small in comparison to white flight to the suburbs, both because white flight to the suburbs has left relatively few whites in cities and because private schools (obviously) cost money. In Mississippi, for example, a large number of white families have moved from Jackson to predominantly white suburbs, while relatively few have left Jackson public schools for private ones. See State by State, EDUC. WK., Jan. 8, 1998, at 88.
236. See ORFIELD ET AL., supra note 22, at 61-63; see also Gerald E. Frug, City Services, 73 N.Y.U. L. REV. 23, 61 n.115 (1998) (noting that there has been no major shift overall of whites to private schools). This is not to deny that there has been white flight to private schools. Although obtaining precise or comprehensive figures is difficult, white flight to private schools has certainly occurred (and continues to occur), as demonstrated by the discrepancy between the percentage of whites or white children living in certain urban areas and the percentage of white students in urban schools. In Boston, for example, 60% of the population is white, but only 15% of the public school students are white; in New Orleans, the population is 35% white, while the student enrollment in public schools is only 6% white. Again, however, white flight to private schools has been small in comparison to white flight to the suburbs, both because white flight to the suburbs has left relatively few whites in cities and because private schools (obviously) cost money. In Mississippi, for example, a large number of white families have moved from Jackson to predominantly white suburbs, while relatively few have left Jackson public schools for private ones. See State by State, EDUC. WK., Jan. 8, 1998, at 88.
237. See ORFIELD ET AL., supra note 22, at 54; Chemerinsky, supra note 18, at 1011-12.
238. Cf. ORFIELD ET AL., supra note 22, at 57; see also ARMOR, supra note 22, at 83-86 (concluding from empirical study that the "socioeconomic status of black families in the Hartford area, not school segregation, is largely responsible for differences in academic performance").
239. See infra Subsection III.C.3.
240. See ORFIELD ET AL., supra note 22, at 54.
241. Abbott IV, 693 A.2d 417, 433 (N.J. 1997). In Abbott II, the court concluded that the needs of students in high poverty districts exceeded those of suburban students. See Abbott II, 575 A.2d 359, 400 (N.J. 1990). "Those needs," the court observed, "go beyond educational needs, they include food, clothing and shelter, and extend to lack of close family and community ties and support, and lack of helpful role models. They include the needs that arise from a life led in an environment of violence, poverty, and despair." Id. Congress, too, has recognized as much. In its statement of policy and purpose with regard to Title I, a federal program that devotes resources to high-poverty schools, Congress reported that "[c]onditions outside the classroom such as hunger, unsafe living conditions, homelessness, unemployment, violence, inadequate health care, child abuse, and drug and alcohol abuse can adversely affect children's academic achievement and must be addressed through the coordination of services, such as health and social services." 20 U.S.C. § 6301(c)(2) (1994).
242. Abbott IV, 693 A.2d at 434 (quoting findings of the administrative law judge); see also CARNEGIE CORP. OF N.Y., YEARS OF PROMISE: A COMPREHENSIVE LEARNING STRATEGY FOR AMERICA'S CHILDREN (1996).
243. See ANYON, supra note 13, at 6-7 ("The large percentages of [urban] students needing special services or programs strain city school budgets, in some cases accounting for up to one quarter of expenses." (citation omitted)).
244. See Abbott IV, 693 A.2d at 434 (citing Abbott II, 575 A.2d at 359).
245. The school finance schemes in Connecticut, Idaho, Indianapolis, Mississippi, Nebraska, New Jersey, and Washington, among others, devote additional state aid to districts based on the number of low-income students in those districts. See State by State, supra note 152, at 118, 141, 188, 195, 204, 263.
246. The Title I program was most recently reauthorized in the Improving America's Schools Act of 1994, Pub. L. No. 103-382, tit. I, §101, 108 Stat. 3519 (codified at 20 U.S.C. § 6301 (1994)). In its statement of purpose and policy, Congress recognized that "the most urgent need for educational improvement is in schools with high concentrations of children from low-income families." Id. § 6301(b)-(c).
247. See Abbott v. Burke (Abbott V), 710 A.2d 450, 473-74 (N.J. 1998); Abbott II, 693 A.2d at 433-37.
248. See ORFIELD ET AL., supra note 22, at 55. Orfield notes that schools that are predominantly minority are 14 times more likely to have high concentrations of impoverished students than are schools that are mostly white. As of 1991, there were 5047 schools that were 90% to 100% African-American and/or Hispanic. Of these, 57% were high-poverty schools, meaning that over half of the students in these schools were poor. See id. By contrast, 96% of predominantly white schools have a majority of students from middle-income families. See id. 165. See JAMES S. COLEMAN ET AL., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, EQUALITY OF EDUCATIONAL OPPORTUNITY (1966). Coleman and his colleagues prepared the report under the auspices of the U.S. Office of Education (the precursor to the current Department of Education), which in turn had been directed by § 402 of the 1964 Civil Rights Act to "conduct a survey . . . concerning the lack of availability of equal educational opportunities." Id. at iii. At the time, the project was one of the largest ever undertaken in history; it gathered and analyzed information regarding 570,000 pupils, 60,000 teachers, and 4000 school facilities. See id. at 557. Additional studies support Coleman's findings regarding the importance of socioeconomic status for student achievement, including, for example, SHELLEY DRAZEN, STUDENT ACHIEVEMENT AND FAMILY AND COMMUNITY POVERTY: TWENTY YEARS OF EDUCATION REFORM (1992); KIM KRUSE, THE EFFECTS OF A LOW SOCIOECONOMIC ENVIRONMENT ON A STUDENT'S ACADEMIC ACHIEVEMENT (1996); and Geoffrey F. Schultz, Socioeconomic Advantage and Achievement Motivation: Important Mediators of Academic Performance in Minority Children in Urban Schools, 25 URB. REV. 221 (1993).
249. See ORFIELD ET AL., supra note 22, at 55. Orfield notes that schools that are predominantly minority are 14 times more likely to have high concentrations of impoverished students than are schools that are mostly white. As of 1991, there were 5047 schools that were 90% to 100% African-American and/or Hispanic. Of these, 57% were high-poverty schools, meaning that over half of the students in these schools were poor. See id. By contrast, 96% of predominantly white schools have a majority of students from middle-income families. See id. 165. See JAMES S. COLEMAN ET AL., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, EQUALITY OF EDUCATIONAL OPPORTUNITY (1966). Coleman and his colleagues prepared the report under the auspices of the U.S. Office of Education (the precursor to the current Department of Education), which in turn had been directed by § 402 of the 1964 Civil Rights Act to "conduct a survey . . . concerning the lack of availability of equal educational opportunities." Id. at iii. At the time, the project was one of the largest ever undertaken in history; it gathered and analyzed information regarding 570,000 pupils, 60,000 teachers, and 4000 school facilities. See id. at 557. Additional studies support Coleman's findings regarding the importance of socioeconomic status for student achievement, including, for example, SHELLEY DRAZEN, STUDENT ACHIEVEMENT AND FAMILY AND COMMUNITY POVERTY: TWENTY YEARS OF EDUCATION REFORM (1992); KIM KRUSE, THE EFFECTS OF A LOW SOCIOECONOMIC ENVIRONMENT ON A STUDENT'S ACADEMIC ACHIEVEMENT (1996); and Geoffrey F. Schultz, Socioeconomic Advantage and Achievement Motivation: Important Mediators of Academic Performance in Minority Children in Urban Schools, 25 URB. REV. 221 (1993).
250. See ORFIELD ET AL., supra note 22, at 55. Orfield notes that schools that are predominantly minority are 14 times more likely to have high concentrations of impoverished students than are schools that are mostly white. As of 1991, there were 5047 schools that were 90% to 100% African-American and/or Hispanic. Of these, 57% were high-poverty schools, meaning that over half of the students in these schools were poor. See id. By contrast, 96% of predominantly white schools have a majority of students from middle-income families. See id. 165. See JAMES S. COLEMAN ET AL., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, EQUALITY OF EDUCATIONAL OPPORTUNITY (1966). Coleman and his colleagues prepared the report under the auspices of the U.S. Office of Education (the precursor to the current Department of Education), which in turn had been directed by § 402 of the 1964 Civil Rights Act to "conduct a survey . . . concerning the lack of availability of equal educational opportunities." Id. at iii. At the time, the project was one of the largest ever undertaken in history; it gathered and analyzed information regarding 570,000 pupils, 60,000 teachers, and 4000 school facilities. See id. at 557. Additional studies support Coleman's findings regarding the importance of socioeconomic status for student achievement, including, for example, SHELLEY DRAZEN, STUDENT ACHIEVEMENT AND FAMILY AND COMMUNITY POVERTY: TWENTY YEARS OF EDUCATION REFORM (1992); KIM KRUSE, THE EFFECTS OF A LOW SOCIOECONOMIC ENVIRONMENT ON A STUDENT'S ACADEMIC ACHIEVEMENT (1996); and Geoffrey F. Schultz, Socioeconomic Advantage and Achievement Motivation: Important Mediators of Academic Performance in Minority Children in Urban Schools, 25 URB. REV. 221 (1993).
251. See ORFIELD ET AL., supra note 22, at 55. Orfield notes that schools that are predominantly minority are 14 times more likely to have high concentrations of impoverished students than are schools that are mostly white. As of 1991, there were 5047 schools that were 90% to 100% African-American and/or Hispanic. Of these, 57% were high-poverty schools, meaning that over half of the students in these schools were poor. See id. By contrast, 96% of predominantly white schools have a majority of students from middle-income families. See id. 165. See JAMES S. COLEMAN ET AL., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, EQUALITY OF EDUCATIONAL OPPORTUNITY (1966). Coleman and his colleagues prepared the report under the auspices of the U.S. Office of Education (the precursor to the current Department of Education), which in turn had been directed by § 402 of the 1964 Civil Rights Act to "conduct a survey . . . concerning the lack of availability of equal educational opportunities." Id. at iii. At the time, the project was one of the largest ever undertaken in history; it gathered and analyzed information regarding 570,000 pupils, 60,000 teachers, and 4000 school facilities. See id. at 557. Additional studies support Coleman's findings regarding the importance of socioeconomic status for student achievement, including, for example, SHELLEY DRAZEN, STUDENT ACHIEVEMENT AND FAMILY AND COMMUNITY POVERTY: TWENTY YEARS OF EDUCATION REFORM (1992); KIM KRUSE, THE EFFECTS OF A LOW SOCIOECONOMIC ENVIRONMENT ON A STUDENT'S ACADEMIC ACHIEVEMENT (1996); and Geoffrey F. Schultz, Socioeconomic Advantage and Achievement Motivation: Important Mediators of Academic Performance in Minority Children in Urban Schools, 25 URB. REV. 221 (1993).
252. COLEMAN ET AL., supra note 165, at 304.
253. See, e.g., JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS 125-29 (1990) (finding that the socioeconomic status of a school exerts a statistically significant influence on achievement, though it is less influential than student ability, school organization, and parents' socioeconomic status); KRUSE, supra note 165; LAWRENCE STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM FAILED AND WHAT PARENTS NEED TO DO (1996); Galster, supra note 92, at 1439-40 (observing that racial and economic segregation among schools "place greater limits on the educational achievement and attainment of poor children from African-American and Hispanic families because these children have less contact with children from nonpoor families"); James S. Liebman, Voice, Not Choice, 101 YALE L.J. 259, 267 n.40 (1991) (reviewing CHUBB & MOE, supra, and citing additional evidence of the significance of peers on student achievement); Schultz, supra note 165. See generally LINDA DACHA, EFFECTS OF COMMUNITY AND FAMILY BACKGROUND ON ACHIEVEMENT 32, 41 (1981) (finding that variations in neighborhood quality are partially responsible for differences in educational achievement and attainment both within and between racial groups).
254. See, e.g., JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS 125-29 (1990) (finding that the socioeconomic status of a school exerts a statistically significant influence on achievement, though it is less influential than student ability, school organization, and parents' socioeconomic status); KRUSE, supra note 165; LAWRENCE STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM FAILED AND WHAT PARENTS NEED TO DO (1996); Galster, supra note 92, at 1439-40 (observing that racial and economic segregation among schools "place greater limits on the educational achievement and attainment of poor children from African-American and Hispanic families because these children have less contact with children from nonpoor families"); James S. Liebman, Voice, Not Choice, 101 YALE L.J. 259, 267 n.40 (1991) (reviewing CHUBB & MOE, supra, and citing additional evidence of the significance of peers on student achievement); Schultz, supra note 165. See generally LINDA DACHA, EFFECTS OF COMMUNITY AND FAMILY BACKGROUND ON ACHIEVEMENT 32, 41 (1981) (finding that variations in neighborhood quality are partially responsible for differences in educational achievement and attainment both within and between racial groups).
255. See, e.g., JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS 125-29 (1990) (finding that the socioeconomic status of a school exerts a statistically significant influence on achievement, though it is less influential than student ability, school organization, and parents' socioeconomic status); KRUSE, supra note 165; LAWRENCE STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM FAILED AND WHAT PARENTS NEED TO DO (1996); Galster, supra note 92, at 1439-40 (observing that racial and economic segregation among schools "place greater limits on the educational achievement and attainment of poor children from African-American and Hispanic families because these children have less contact with children from nonpoor families"); James S. Liebman, Voice, Not Choice, 101 YALE L.J. 259, 267 n.40 (1991) (reviewing CHUBB & MOE, supra, and citing additional evidence of the significance of peers on student achievement); Schultz, supra note 165. See generally LINDA DACHA, EFFECTS OF COMMUNITY AND FAMILY BACKGROUND ON ACHIEVEMENT 32, 41 (1981) (finding that variations in neighborhood quality are partially responsible for differences in educational achievement and attainment both within and between racial groups).
256. See, e.g., JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS 125-29 (1990) (finding that the socioeconomic status of a school exerts a statistically significant influence on achievement, though it is less influential than student ability, school organization, and parents' socioeconomic status); KRUSE, supra note 165; LAWRENCE STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM FAILED AND WHAT PARENTS NEED TO DO (1996); Galster, supra note 92, at 1439-40 (observing that racial and economic segregation among schools "place greater limits on the educational achievement and attainment of poor children from African-American and Hispanic families because these children have less contact with children from nonpoor families"); James S. Liebman, Voice, Not Choice, 101 YALE L.J. 259, 267 n.40 (1991) (reviewing CHUBB & MOE, supra, and citing additional evidence of the significance of peers on student achievement); Schultz, supra note 165. See generally LINDA DACHA, EFFECTS OF COMMUNITY AND FAMILY BACKGROUND ON ACHIEVEMENT 32, 41 (1981) (finding that variations in neighborhood quality are partially responsible for differences in educational achievement and attainment both within and between racial groups).
257. See, e.g., JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS 125-29 (1990) (finding that the socioeconomic status of a school exerts a statistically significant influence on achievement, though it is less influential than student ability, school organization, and parents' socioeconomic status); KRUSE, supra note 165; LAWRENCE STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM FAILED AND WHAT PARENTS NEED TO DO (1996); Galster, supra note 92, at 1439-40 (observing that racial and economic segregation among schools "place greater limits on the educational achievement and attainment of poor children from African-American and Hispanic families because these children have less contact with children from nonpoor families"); James S. Liebman, Voice, Not Choice, 101 YALE L.J. 259, 267 n.40 (1991) (reviewing CHUBB & MOE, supra, and citing additional evidence of the significance of peers on student achievement); Schultz, supra note 165. See generally LINDA DACHA, EFFECTS OF COMMUNITY AND FAMILY BACKGROUND ON ACHIEVEMENT 32, 41 (1981) (finding that variations in neighborhood quality are partially responsible for differences in educational achievement and attainment both within and between racial groups).
258. Signithia Fordham & John U. Ogbu, Black Students' School Success: Coping with the "Burden of 'Acting White,'" 18 URB. REV. 176, 181 (1986).
259. Id. at 182.
260. MASSEY & DENTON, supra note 2, at 168.
261. See Fordham & Ogbu, supra note 168, at 191. Fordham and Ogbu conducted a study of black students at a public high school in Washington, D.C. Among the attitudes and behaviors black students identified as "acting white" and thus as taboo were speaking standard English, working hard to get good grades or actually getting good grades, spending a lot of time in the library studying, being on time, doing volunteer work, going camping or hiking, going to a museum or a symphony, and listening to classical music. See id. at 186. Although Fordham and Ogbu suggested that black students will avoid the burden of "acting white" in desegregated settings as well, see id. at 199-200, more recent evidence from the St. Louis schools suggests that the type of school may affect the degree of resistance to or avoidance of success, see WELLS & CRAIN, supra note 12, at 172-73 (citing R.W. LISSITZ, ASSESSMENT OF STUDENT PERFORMANCE AND ATTITUDE YEAR IV - 1994: ST. LOUIS METROPOLITAN AREA COURT ORDERED DESEGREGATION EFFORT (1994)). Wells and Crain report the results of a survey in which black students attending all-black city schools, rather than integrated magnet or suburban schools, were most likely to agree that students who seem smart and do well will be disliked by their peers. See id. Fordham and Ogbu's conclusions have been challenged by Philip J. Cook and Jens Ludwig, who argue, based on data from a national sample of 10th graders, that the alleged burden of "acting white" is exaggerated and not supported by evidence regarding graduation rates, attendance rates, and time spent on homework. See Phillip J. Cook & Jens Ludwig, The Burden of "Acting White": Do Black Adolescents Disparage Academic Achievement?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 390. Ronald Ferguson, in turn, has questioned Cook and Ludwig's argument by suggesting that the data they use to measure black oppositional culture are not the most indicative of
262. See Fordham & Ogbu, supra note 168, at 191. Fordham and Ogbu conducted a study of black students at a public high school in Washington, D.C. Among the attitudes and behaviors black students identified as "acting white" and thus as taboo were speaking standard English, working hard to get good grades or actually getting good grades, spending a lot of time in the library studying, being on time, doing volunteer work, going camping or hiking, going to a museum or a symphony, and listening to classical music. See id. at 186. Although Fordham and Ogbu suggested that black students will avoid the burden of "acting white" in desegregated settings as well, see id. at 199-200, more recent evidence from the St. Louis schools suggests that the type of school may affect the degree of resistance to or avoidance of success, see WELLS & CRAIN, supra note 12, at 172-73 (citing R.W. LISSITZ, ASSESSMENT OF STUDENT PERFORMANCE AND ATTITUDE YEAR IV - 1994: ST. LOUIS METROPOLITAN AREA COURT ORDERED DESEGREGATION EFFORT (1994)). Wells and Crain report the results of a survey in which black students attending all-black city schools, rather than integrated magnet or suburban schools, were most likely to agree that students who seem smart and do well will be disliked by their peers. See id. Fordham and Ogbu's conclusions have been challenged by Philip J. Cook and Jens Ludwig, who argue, based on data from a national sample of 10th graders, that the alleged burden of "acting white" is exaggerated and not supported by evidence regarding graduation rates, attendance rates, and time spent on homework. See Phillip J. Cook & Jens Ludwig, The Burden of "Acting White": Do Black Adolescents Disparage Academic Achievement?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 390. Ronald Ferguson, in turn, has questioned Cook and Ludwig's argument by suggesting that the data they use to measure black oppositional culture are not the most indicative of adolescent norms - that is, black students may act in ways that indicate an alienation from school, such as refusing to participate in class, which are not captured in the data regarding attendance, homework, and graduation, upon which Cook and Ludwig relied. See Ronald F. Ferguson, Comment, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 394.
263. See Fordham & Ogbu, supra note 168, at 191. Fordham and Ogbu conducted a study of black students at a public high school in Washington, D.C. Among the attitudes and behaviors black students identified as "acting white" and thus as taboo were speaking standard English, working hard to get good grades or actually getting good grades, spending a lot of time in the library studying, being on time, doing volunteer work, going camping or hiking, going to a museum or a symphony, and listening to classical music. See id. at 186. Although Fordham and Ogbu suggested that black students will avoid the burden of "acting white" in desegregated settings as well, see id. at 199-200, more recent evidence from the St. Louis schools suggests that the type of school may affect the degree of resistance to or avoidance of success, see WELLS & CRAIN, supra note 12, at 172-73 (citing R.W. LISSITZ, ASSESSMENT OF STUDENT PERFORMANCE AND ATTITUDE YEAR IV - 1994: ST. LOUIS METROPOLITAN AREA COURT ORDERED DESEGREGATION EFFORT (1994)). Wells and Crain report the results of a survey in which black students attending all-black city schools, rather than integrated magnet or suburban schools, were most likely to agree that students who seem smart and do well will be disliked by their peers. See id. Fordham and Ogbu's conclusions have been challenged by Philip J. Cook and Jens Ludwig, who argue, based on data from a national sample of 10th graders, that the alleged burden of "acting white" is exaggerated and not supported by evidence regarding graduation rates, attendance rates, and time spent on homework. See Phillip J. Cook & Jens Ludwig, The Burden of "Acting White": Do Black Adolescents Disparage Academic Achievement?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 390. Ronald Ferguson, in turn, has questioned Cook and Ludwig's argument by suggesting that the data they use to measure black oppositional culture are not the most indicative of adolescent norms - that is, black students may act in ways that indicate an alienation from school, such as refusing to participate in class, which are not captured in the data regarding attendance, homework, and graduation, upon which Cook and Ludwig relied. See Ronald F. Ferguson, Comment, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 394.
264. See Fordham & Ogbu, supra note 168, at 191. Fordham and Ogbu conducted a study of black students at a public high school in Washington, D.C. Among the attitudes and behaviors black students identified as "acting white" and thus as taboo were speaking standard English, working hard to get good grades or actually getting good grades, spending a lot of time in the library studying, being on time, doing volunteer work, going camping or hiking, going to a museum or a symphony, and listening to classical music. See id. at 186. Although Fordham and Ogbu suggested that black students will avoid the burden of "acting white" in desegregated settings as well, see id. at 199-200, more recent evidence from the St. Louis schools suggests that the type of school may affect the degree of resistance to or avoidance of success, see WELLS & CRAIN, supra note 12, at 172-73 (citing R.W. LISSITZ, ASSESSMENT OF STUDENT PERFORMANCE AND ATTITUDE YEAR IV - 1994: ST. LOUIS METROPOLITAN AREA COURT ORDERED DESEGREGATION EFFORT (1994)). Wells and Crain report the results of a survey in which black students attending all-black city schools, rather than integrated magnet or suburban schools, were most likely to agree that students who seem smart and do well will be disliked by their peers. See id. Fordham and Ogbu's conclusions have been challenged by Philip J. Cook and Jens Ludwig, who argue, based on data from a national sample of 10th graders, that the alleged burden of "acting white" is exaggerated and not supported by evidence regarding graduation rates, attendance rates, and time spent on homework. See Phillip J. Cook & Jens Ludwig, The Burden of "Acting White": Do Black Adolescents Disparage Academic Achievement?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 390. Ronald Ferguson, in turn, has questioned Cook and Ludwig's argument by suggesting that the data they use to measure black oppositional culture are not the most indicative of adolescent norms - that is, black students may act in ways that indicate an alienation from school, such as refusing to participate in class, which are not captured in the data regarding attendance, homework, and graduation, upon which Cook and Ludwig relied. See Ronald F. Ferguson, Comment, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 375, 394.
265. See Fordham & Ogbu, supra note 168, at 187-98: see also Signithia Fordham, Racelessness as a Factor in Black Students' School Success: Pragmatic Strategy or Pyrrhic Victory?, 58 HARV. EDUC. REV. 54 (1988) (arguing that some black students develop a strategy of "racelessness" to resolve conflicts between academic achievement and racial group identification).
266. See, e.g., ANYON, supra note 13, at 7 (citing research demonstrating "that instruction in inner city schools is often based on cognitively low-level, unchallenging, rote material"); James E. Rosenbaum et al., White Suburban Schools' Responses to Low-Income Black Children: Sources of Successes and Problems, 20 URB. REV. 28, 30-32 (1988) (concluding, from interviews of parents whose children transferred from city to suburban schools, that suburban Chicago schools have higher standards and demand more from students than do city schools).
267. See, e.g., ANYON, supra note 13, at 7 (citing research demonstrating "that instruction in inner city schools is often based on cognitively low-level, unchallenging, rote material"); James E. Rosenbaum et al., White Suburban Schools' Responses to Low-Income Black Children: Sources of Successes and Problems, 20 URB. REV. 28, 30-32 (1988) (concluding, from interviews of parents whose children transferred from city to suburban schools, that suburban Chicago schools have higher standards and demand more from students than do city schools).
268. For extensive discussion of the relevant court decisions and their impact in the KCMSD, see ORFIELD ET AL., supra note 22, at 241-63; see also Missouri v. Jenkins, 515 U.S. 70 (1995); Missouri v. Jenkins, 495 U.S. 33 (1990).
269. See Milliken II, 433 U.S. 267 (1977) (holding that courts could order the funding of remedial and compensatory education programs as part of a desegregation decree).
270. See Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986); see also id. at 695, 698 (Lay, C.J., dissenting) (arguing that the district court's decision rested upon a "misunderstanding of Milliken I" and that the district court had "erected an improper proof burden for the plaintiffs to overcome").
271. District Judge Clark, who ordered the monetary remedies, later admitted that it would have been "much easier to integrate the Kansas City schools" if he had kept the suburban districts in, and that including the suburban districts would have obviated the need for "a lot of the capital improvements." ORFIELD ET AL., supra note 22, at 247 (quoting Judge Clark).
272. See id. at 248 (quoting an interview with Arthur Benson, plaintiffs' attorney in Jenkins v. Missouri).
273. See Jenkins, 495 U.S. at 77 (Kennedy, J., concurring); ORFIELD ET AL., supra note 22, at 241.
274. See ORFIELD ET AL., supra note 22, at 252.
275. See id. at 256-61.
276. See Sheff v. O'Neill, 678 A.2d 1267, 1273 (Conn. 1996). The level of funding, it bears noting, also greatly exceeds the national average. In 1993, for example, Hartford spent over $8000 per pupil; the national average was $5500.
277. See id. at 1272-74. For discussion of this case, see Ryan, supra note 16.
278. See Sheff, 678 A.2d, at 1271-72.
279. See ORFIELD ET AL., supra note 22, at 256-61.
280. See Tractenberg, supra note 17, at 91-97 (describing the performance of urban minority students on standardized tests).
281. See COLEMAN ET AL., supra note 165.
282. See, e.g., MICHAEL J. PUMA ET AL., PROSPECTS: FINAL REPORT ON STUDENT OUTCOMES (1997); Eric A. Hanushek, When School Finance "Reform" May Not be Good Policy, 28 HARV. J. ON LEGIS. 423, 427-30 (1991). The Prospects Report concerned schools receiving Title I aid, which is designed to boost the achievement of disadvantaged students. The report concluded that participants in the Title I program continued to score lower on standardized tests than nonparticipants; that is, Title I did not close the gap that exists between low-and high-achieving students. Other studies found that particular Title I programs were quite effective, suggesting that Title I funds can make a difference if spent wisely. See David J. Hoff, Tracking Title I, EDUC. WK., Oct. 22, 1997, at 16 (discussing a 1993 RAND Corporation study concluding that many Title I programs produce "outstanding results"). If the focus is only on disadvantaged students, moreover, one study suggests that disadvantaged students who participate in Title I programs tend to perform better on tests than those who do not participate. See id. 189. This is the claim made by Alison Morantz with regard to Milliken II funds. See ORFIELD ET AL., supra note 22, at 253-54. This same claim is made by Title I researchers. See, e.g., Robert E. Slavin, How Title I Can (Still) Save America's Children, EDUC. WK., May 21, 1997, at 54 (suggesting that Title I funds should be spent on whole-school reforms, such as the author's own "Success For All" program).
283. See, e.g., MICHAEL J. PUMA ET AL., PROSPECTS: FINAL REPORT ON STUDENT OUTCOMES (1997); Eric A. Hanushek, When School Finance "Reform" May Not be Good Policy, 28 HARV. J. ON LEGIS. 423, 427-30 (1991). The Prospects Report concerned schools receiving Title I aid, which is designed to boost the achievement of disadvantaged students. The report concluded that participants in the Title I program continued to score lower on standardized tests than nonparticipants; that is, Title I did not close the gap that exists between low-and high-achieving students. Other studies found that particular Title I programs were quite effective, suggesting that Title I funds can make a difference if spent wisely. See David J. Hoff, Tracking Title I, EDUC. WK., Oct. 22, 1997, at 16 (discussing a 1993 RAND Corporation study concluding that many Title I programs produce "outstanding results"). If the focus is only on disadvantaged students, moreover, one study suggests that disadvantaged students who participate in Title I programs tend to perform better on tests than those who do not participate. See id. 189. This is the claim made by Alison Morantz with regard to Milliken II funds. See ORFIELD ET AL., supra note 22, at 253-54. This same claim is made by Title I researchers. See, e.g., Robert E. Slavin, How Title I Can (Still) Save America's Children, EDUC. WK., May 21, 1997, at 54 (suggesting that Title I funds should be spent on whole-school reforms, such as the author's own "Success For All" program).
284. See, e.g., MICHAEL J. PUMA ET AL., PROSPECTS: FINAL REPORT ON STUDENT OUTCOMES (1997); Eric A. Hanushek, When School Finance "Reform" May Not be Good Policy, 28 HARV. J. ON LEGIS. 423, 427-30 (1991). The Prospects Report concerned schools receiving Title I aid, which is designed to boost the achievement of disadvantaged students. The report concluded that participants in the Title I program continued to score lower on standardized tests than nonparticipants; that is, Title I did not close the gap that exists between low-and high-achieving students. Other studies found that particular Title I programs were quite effective, suggesting that Title I funds can make a difference if spent wisely. See David J. Hoff, Tracking Title I, EDUC. WK., Oct. 22, 1997, at 16 (discussing a 1993 RAND Corporation study concluding that many Title I programs produce "outstanding results"). If the focus is only on disadvantaged students, moreover, one study suggests that disadvantaged students who participate in Title I programs tend to perform better on tests than those who do not participate. See id. 189. This is the claim made by Alison Morantz with regard to Milliken II funds. See ORFIELD ET AL., supra note 22, at 253-54. This same claim is made by Title I researchers. See, e.g., Robert E. Slavin, How Title I Can (Still) Save America's Children, EDUC. WK., May 21, 1997, at 54 (suggesting that Title I funds should be spent on whole-school reforms, such as the author's own "Success For All" program).
285. See, e.g., MICHAEL J. PUMA ET AL., PROSPECTS: FINAL REPORT ON STUDENT OUTCOMES (1997); Eric A. Hanushek, When School Finance "Reform" May Not be Good Policy, 28 HARV. J. ON LEGIS. 423, 427-30 (1991). The Prospects Report concerned schools receiving Title I aid, which is designed to boost the achievement of disadvantaged students. The report concluded that participants in the Title I program continued to score lower on standardized tests than nonparticipants; that is, Title I did not close the gap that exists between low-and high-achieving students. Other studies found that particular Title I programs were quite effective, suggesting that Title I funds can make a difference if spent wisely. See David J. Hoff, Tracking Title I, EDUC. WK., Oct. 22, 1997, at 16 (discussing a 1993 RAND Corporation study concluding that many Title I programs produce "outstanding results"). If the focus is only on disadvantaged students, moreover, one study suggests that disadvantaged students who participate in Title I programs tend to perform better on tests than those who do not participate. See id. 189. This is the claim made by Alison Morantz with regard to Milliken II funds. See ORFIELD ET AL., supra note 22, at 253-54. This same claim is made by Title I researchers. See, e.g., Robert E. Slavin, How Title I Can (Still) Save America's Children, EDUC. WK., May 21, 1997, at 54 (suggesting that Title I funds should be spent on whole-school reforms, such as the author's own "Success For All" program).
286. See, e.g., MICHAEL J. PUMA ET AL., PROSPECTS: FINAL REPORT ON STUDENT OUTCOMES (1997); Eric A. Hanushek, When School Finance "Reform" May Not be Good Policy, 28 HARV. J. ON LEGIS. 423, 427-30 (1991). The Prospects Report concerned schools receiving Title I aid, which is designed to boost the achievement of disadvantaged students. The report concluded that participants in the Title I program continued to score lower on standardized tests than nonparticipants; that is, Title I did not close the gap that exists between low-and high-achieving students. Other studies found that particular Title I programs were quite effective, suggesting that Title I funds can make a difference if spent wisely. See David J. Hoff, Tracking Title I, EDUC. WK., Oct. 22, 1997, at 16 (discussing a 1993 RAND Corporation study concluding that many Title I programs produce "outstanding results"). If the focus is only on disadvantaged students, moreover, one study suggests that disadvantaged students who participate in Title I programs tend to perform better on tests than those who do not participate. See id. 189. This is the claim made by Alison Morantz with regard to Milliken II funds. See ORFIELD ET AL., supra note 22, at 253-54. This same claim is made by Title I researchers. See, e.g., Robert E. Slavin, How Title I Can (Still) Save America's Children, EDUC. WK., May 21, 1997, at 54 (suggesting that Title I funds should be spent on whole-school reforms, such as the author's own "Success For All" program).
287. See Ronald F. Ferguson, Can Schools Narrow the Black-White Test Score Gap?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 318, 365-66 (concluding that preschool education, strong teachers, and smaller class sizes all have positive effects on academic achievement); Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465, 488-89 (1991) [hereinafter Ferguson, Paying for Public Education]; Jencks & Phillips, supra note 102, at 44 (advocating cutting class size and screening out teachers with poor academic skills as effective and realistic policies); see also MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE 138-45 (1997) (discussing empirical studies that suggest that particular interventions and expenditures - for example, hiring more talented teachers, adopting whole school reform, and reducing class size - are effective in boosting achievement); Adam Gamoran, Resource Allocation and the Effects of Schooling: A Sociological Perspective, in MICROLEVEL SCHOOL FINANCE: ISSUES AND IMPLICATIONS FOR POLICY 207, 211-13 (David Monk & Julie Underwood eds., 1988) (arguing that teachers affect achievement outcomes and that they are affected by resource allocations); Larry V. Hedges et al., Does Money Matter?: Meta-Analysis of Studies of the Effect of Differential School Inputs on Student Outcomes, 23 EDUC. RESEARCHER 5 (1992) (criticizing the Hanushek review and finding, after reviewing data from all available studies, that school spending had a positive and statistically significant effect on achievement).
288. See Ronald F. Ferguson, Can Schools Narrow the Black-White Test Score Gap?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 318, 365-66 (concluding that preschool education, strong teachers, and smaller class sizes all have positive effects on academic achievement); Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465, 488-89 (1991) [hereinafter Ferguson, Paying for Public Education]; Jencks & Phillips, supra note 102, at 44 (advocating cutting class size and screening out teachers with poor academic skills as effective and realistic policies); see also MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE 138-45 (1997) (discussing empirical studies that suggest that particular interventions and expenditures - for example, hiring more talented teachers, adopting whole school reform, and reducing class size - are effective in boosting achievement); Adam Gamoran, Resource Allocation and the Effects of Schooling: A Sociological Perspective, in MICROLEVEL SCHOOL FINANCE: ISSUES AND IMPLICATIONS FOR POLICY 207, 211-13 (David Monk & Julie Underwood eds., 1988) (arguing that teachers affect achievement outcomes and that they are affected by resource allocations); Larry V. Hedges et al., Does Money Matter?: Meta-Analysis of Studies of the Effect of Differential School Inputs on Student Outcomes, 23 EDUC. RESEARCHER 5 (1992) (criticizing the Hanushek review and finding, after reviewing data from all available studies, that school spending had a positive and statistically significant effect on achievement).
289. See Ronald F. Ferguson, Can Schools Narrow the Black-White Test Score Gap?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 318, 365-66 (concluding that preschool education, strong teachers, and smaller class sizes all have positive effects on academic achievement); Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465, 488-89 (1991) [hereinafter Ferguson, Paying for Public Education]; Jencks & Phillips, supra note 102, at 44 (advocating cutting class size and screening out teachers with poor academic skills as effective and realistic policies); see also MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE 138-45 (1997) (discussing empirical studies that suggest that particular interventions and expenditures - for example, hiring more talented teachers, adopting whole school reform, and reducing class size - are effective in boosting achievement); Adam Gamoran, Resource Allocation and the Effects of Schooling: A Sociological Perspective, in MICROLEVEL SCHOOL FINANCE: ISSUES AND IMPLICATIONS FOR POLICY 207, 211-13 (David Monk & Julie Underwood eds., 1988) (arguing that teachers affect achievement outcomes and that they are affected by resource allocations); Larry V. Hedges et al., Does Money Matter?: Meta-Analysis of Studies of the Effect of Differential School Inputs on Student Outcomes, 23 EDUC. RESEARCHER 5 (1992) (criticizing the Hanushek review and finding, after reviewing data from all available studies, that school spending had a positive and statistically significant effect on achievement).
290. See Ronald F. Ferguson, Can Schools Narrow the Black-White Test Score Gap?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 318, 365-66 (concluding that preschool education, strong teachers, and smaller class sizes all have positive effects on academic achievement); Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465, 488-89 (1991) [hereinafter Ferguson, Paying for Public Education]; Jencks & Phillips, supra note 102, at 44 (advocating cutting class size and screening out teachers with poor academic skills as effective and realistic policies); see also MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE 138-45 (1997) (discussing empirical studies that suggest that particular interventions and expenditures - for example, hiring more talented teachers, adopting whole school reform, and reducing class size - are effective in boosting achievement); Adam Gamoran, Resource Allocation and the Effects of Schooling: A Sociological Perspective, in MICROLEVEL SCHOOL FINANCE: ISSUES AND IMPLICATIONS FOR POLICY 207, 211-13 (David Monk & Julie Underwood eds., 1988) (arguing that teachers affect achievement outcomes and that they are affected by resource allocations); Larry V. Hedges et al., Does Money Matter?: Meta-Analysis of Studies of the Effect of Differential School Inputs on Student Outcomes, 23 EDUC. RESEARCHER 5 (1992) (criticizing the Hanushek review and finding, after reviewing data from all available studies, that school spending had a positive and statistically significant effect on achievement).
291. See Ronald F. Ferguson, Can Schools Narrow the Black-White Test Score Gap?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 318, 365-66 (concluding that preschool education, strong teachers, and smaller class sizes all have positive effects on academic achievement); Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465, 488-89 (1991) [hereinafter Ferguson, Paying for Public Education]; Jencks & Phillips, supra note 102, at 44 (advocating cutting class size and screening out teachers with poor academic skills as effective and realistic policies); see also MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE 138-45 (1997) (discussing empirical studies that suggest that particular interventions and expenditures - for example, hiring more talented teachers, adopting whole school reform, and reducing class size - are effective in boosting achievement); Adam Gamoran, Resource Allocation and the Effects of Schooling: A Sociological Perspective, in MICROLEVEL SCHOOL FINANCE: ISSUES AND IMPLICATIONS FOR POLICY 207, 211-13 (David Monk & Julie Underwood eds., 1988) (arguing that teachers affect achievement outcomes and that they are affected by resource allocations); Larry V. Hedges et al., Does Money Matter?: Meta-Analysis of Studies of the Effect of Differential School Inputs on Student Outcomes, 23 EDUC. RESEARCHER 5 (1992) (criticizing the Hanushek review and finding, after reviewing data from all available studies, that school spending had a positive and statistically significant effect on achievement).
292. See Ronald F. Ferguson, Can Schools Narrow the Black-White Test Score Gap?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 318, 365-66 (concluding that preschool education, strong teachers, and smaller class sizes all have positive effects on academic achievement); Ronald F. Ferguson, Paying for Public Education: New Evidence on How and Why Money Matters, 28 HARV. J. ON LEGIS. 465, 488-89 (1991) [hereinafter Ferguson, Paying for Public Education]; Jencks & Phillips, supra note 102, at 44 (advocating cutting class size and screening out teachers with poor academic skills as effective and realistic policies); see also MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE 138-45 (1997) (discussing empirical studies that suggest that particular interventions and expenditures - for example, hiring more talented teachers, adopting whole school reform, and reducing class size - are effective in boosting achievement); Adam Gamoran, Resource Allocation and the Effects of Schooling: A Sociological Perspective, in MICROLEVEL SCHOOL FINANCE: ISSUES AND IMPLICATIONS FOR POLICY 207, 211-13 (David Monk & Julie Underwood eds., 1988) (arguing that teachers affect achievement outcomes and that they are affected by resource allocations); Larry V. Hedges et al., Does Money Matter?: Meta-Analysis of Studies of the Effect of Differential School Inputs on Student Outcomes, 23 EDUC. RESEARCHER 5 (1992) (criticizing the Hanushek review and finding, after reviewing data from all available studies, that school spending had a positive and statistically significant effect on achievement).
293. See David Grissmer et al., Why Did the Black-White Score Gap Narrow in the 1970s and 1980s?, in THE BLACK-WHITE TEST SCORE GAP, supra note 102, at 182, 214.
294. Most of the evidence relates to a particular systemic or whole-school reform, known as "Success for All." This program was designed by Robert Slavin and his colleagues at Johns Hopkins. Key components of the program include extended reading periods, small ability-grouped classes for reading, one-on-one tutoring for students having difficulty in reading, and family support services designed to increase parents' participation in their children's education. Although there are similar "whole-school" reforms that seek to reorient the educational practices of entire schools rather than simply provide remedial instruction for students most in need, see, e.g., Fashola & Slavin, supra note 13, at 372-78 (describing various programs), Success for All is the most widely implemented and apparently the most promising, see, e.g., Lynn Olson, Will Success Spoil Success for All?, EDUC. WK., Feb. 4, 1998, at 42. Assessments of the program have been contradictory, as suggested in the text. Robert Slavin, obviously not a disinterested party, argues that longitudinal research indicates that Success For All has educationally significant effects in the districts in which it has been implemented. See Fashola & Slavin, supra note 13. Others question these findings and argue that the results are much more modest than Slavin claims. See, e.g., Herbert J. Walberg & Rebecca C. Greenberg, The Diogenes Factor, EDUC. WK., Apr. 8, 1998, at 52 (questioning the accuracy of Slavin's claims and describing an independent study that found that in Baltimore, where the program originated, the average Success for All student failed to reach grade-level performance by the end of the third grade). Granting for the moment that Slavin's claims are accurate, it is important to recognize the baseline by which Slavin measures progress. He measures the effect of Success for All by comparing the performance of students in the program with students from "similar" schools, meaning schools with children from similar socioeconomic backgrounds, who are not in the program. Selecting this baseline in itself reveals just how limited the nature of reform is expected to be in high-poverty schools, and it suggests that even the most promising and ambitious whole-school reform does not claim that it will create high-poverty schools that achieve at the levels of middle-class suburban schools. The idea that it would be futile to compare urban and suburban schools because the former will never reach the level of the latter is evident in other assessment programs. See, e.g., Abbott II, 575 A.2d 359, 384-86 (N.J. 1990) (discussing and critiquing New Jersey's assessment program).
295. Most of the evidence relates to a particular systemic or whole-school reform, known as "Success for All." This program was designed by Robert Slavin and his colleagues at Johns Hopkins. Key components of the program include extended reading periods, small ability-grouped classes for reading, one-on-one tutoring for students having difficulty in reading, and family support services designed to increase parents' participation in their children's education. Although there are similar "whole-school" reforms that seek to reorient the educational practices of entire schools rather than simply provide remedial instruction for students most in need, see, e.g., Fashola & Slavin, supra note 13, at 372-78 (describing various programs), Success for All is the most widely implemented and apparently the most promising, see, e.g., Lynn Olson, Will Success Spoil Success for All?, EDUC. WK., Feb. 4, 1998, at 42. Assessments of the program have been contradictory, as suggested in the text. Robert Slavin, obviously not a disinterested party, argues that longitudinal research indicates that Success For All has educationally significant effects in the districts in which it has been implemented. See Fashola & Slavin, supra note 13. Others question these findings and argue that the results are much more modest than Slavin claims. See, e.g., Herbert J. Walberg & Rebecca C. Greenberg, The Diogenes Factor, EDUC. WK., Apr. 8, 1998, at 52 (questioning the accuracy of Slavin's claims and describing an independent study that found that in Baltimore, where the program originated, the average Success for All student failed to reach grade-level performance by the end of the third grade). Granting for the moment that Slavin's claims are accurate, it is important to recognize the baseline by which Slavin measures progress. He measures the effect of Success for All by comparing the performance of students in the program with students from "similar" schools, meaning schools with children from similar socioeconomic backgrounds, who are not in the program. Selecting this baseline in itself reveals just how limited the nature of reform is expected to be in high-poverty schools, and it suggests that even the most promising and ambitious whole-school reform does not claim that it will create high-poverty schools that achieve at the levels of middle-class suburban schools. The idea that it would be futile to compare urban and suburban schools because the former will never reach the level of the latter is evident in other assessment programs. See, e.g., Abbott II, 575 A.2d 359, 384-86 (N.J. 1990) (discussing and critiquing New Jersey's assessment program).
296. Most of the evidence relates to a particular systemic or whole-school reform, known as "Success for All." This program was designed by Robert Slavin and his colleagues at Johns Hopkins. Key components of the program include extended reading periods, small ability-grouped classes for reading, one-on-one tutoring for students having difficulty in reading, and family support services designed to increase parents' participation in their children's education. Although there are similar "whole-school" reforms that seek to reorient the educational practices of entire schools rather than simply provide remedial instruction for students most in need, see, e.g., Fashola & Slavin, supra note 13, at 372-78 (describing various programs), Success for All is the most widely implemented and apparently the most promising, see, e.g., Lynn Olson, Will Success Spoil Success for All?, EDUC. WK., Feb. 4, 1998, at 42. Assessments of the program have been contradictory, as suggested in the text. Robert Slavin, obviously not a disinterested party, argues that longitudinal research indicates that Success For All has educationally significant effects in the districts in which it has been implemented. See Fashola & Slavin, supra note 13. Others question these findings and argue that the results are much more modest than Slavin claims. See, e.g., Herbert J. Walberg & Rebecca C. Greenberg, The Diogenes Factor, EDUC. WK., Apr. 8, 1998, at 52 (questioning the accuracy of Slavin's claims and describing an independent study that found that in Baltimore, where the program originated, the average Success for All student failed to reach grade-level performance by the end of the third grade). Granting for the moment that Slavin's claims are accurate, it is important to recognize the baseline by which Slavin measures progress. He measures the effect of Success for All by comparing the performance of students in the program with students from "similar" schools, meaning schools with children from similar socioeconomic backgrounds, who are not in the program. Selecting this baseline in itself reveals just how limited the nature of reform is expected to be in high-poverty schools, and it suggests that even the most promising and ambitious whole-school reform does not claim that it will create high-poverty schools that achieve at the levels of middle-class suburban schools. The idea that it would be futile to compare urban and suburban schools because the former will never reach the level of the latter is evident in other assessment programs. See, e.g., Abbott II, 575 A.2d 359, 384-86 (N.J. 1990) (discussing and critiquing New Jersey's assessment program).
297. Most of the evidence relates to a particular systemic or whole-school reform, known as "Success for All." This program was designed by Robert Slavin and his colleagues at Johns Hopkins. Key components of the program include extended reading periods, small ability-grouped classes for reading, one-on-one tutoring for students having difficulty in reading, and family support services designed to increase parents' participation in their children's education. Although there are similar "whole-school" reforms that seek to reorient the educational practices of entire schools rather than simply provide remedial instruction for students most in need, see, e.g., Fashola & Slavin, supra note 13, at 372-78 (describing various programs), Success for All is the most widely implemented and apparently the most promising, see, e.g., Lynn Olson, Will Success Spoil Success for All?, EDUC. WK., Feb. 4, 1998, at 42. Assessments of the program have been contradictory, as suggested in the text. Robert Slavin, obviously not a disinterested party, argues that longitudinal research indicates that Success For All has educationally significant effects in the districts in which it has been implemented. See Fashola & Slavin, supra note 13. Others question these findings and argue that the results are much more modest than Slavin claims. See, e.g., Herbert J. Walberg & Rebecca C. Greenberg, The Diogenes Factor, EDUC. WK., Apr. 8, 1998, at 52 (questioning the accuracy of Slavin's claims and describing an independent study that found that in Baltimore, where the program originated, the average Success for All student failed to reach grade-level performance by the end of the third grade). Granting for the moment that Slavin's claims are accurate, it is important to recognize the baseline by which Slavin measures progress. He measures the effect of Success for All by comparing the performance of students in the program with students from "similar" schools, meaning schools with children from similar socioeconomic backgrounds, who are not in the program. Selecting this baseline in itself reveals just how limited the nature of reform is expected to be in high-poverty schools, and it suggests that even the most promising and ambitious whole-school reform does not claim that it will create high-poverty schools that achieve at the levels of middle-class suburban schools. The idea that it would be futile to compare urban and suburban schools because the former will never reach the level of the latter is evident in other assessment programs. See, e.g., Abbott II, 575 A.2d 359, 384-86 (N.J. 1990) (discussing and critiquing New Jersey's assessment program).
298. In addition to the evidence regarding Hartford, Kansas City, and other Milliken II districts, see PUMA ET AL., supra note 188 (describing performance in Title I schools); and Tractenberg, supra note 17 (describing performance in New Jersey's urban school districts).
299. In addition to Ferguson's article and the evidence regarding whole-school reforms, there have been other attempts to identify the programs that have proven the most successful in boosting achievement. See, e.g., COMMITTEE ON EDUC. & LABOR, 102D CONG., SHORTCHANGING CHILDREN: THE IMPACT OF FISCAL INEQUALITY ON THE EDUCATION OF STUDENTS AT RISK (Comm. Print 1991) (authored by William L. Taylor and Dianne M Piche). These programs include early childhood education, full-day kindergarten, small classes (especially for reading) in the earliest grades, and school-based health and social services. See KELMAN & LESTER, supra note 190, at 138-45: WIPING OUT DISADVANTAGES, supra note 109. On the other side of the coin, it is instructive to consider the results where states have taken over districts, ostensibly on the ground that those districts were being mismanaged. Those results are, in a word, underwhelming. In New Jersey, for example, performance levels in Paterson and Newark have changed little in the several years since the state took over the districts. See Jessica L. Sandham, Despite Takeover Laws, States Moving Cautiously on Interventions, EDUC. WK., Apr. 14, 1999, at 21. This disappointing showing by schools taken over by the state does not prove, of course, that money spent wisely will be ineffective - because it is not clear that the state is spending money wisely - but it does reveal that the obstacles facing high-poverty urban schools are noi amenable to quick fixes.
300. In addition to Ferguson's article and the evidence regarding whole-school reforms, there have been other attempts to identify the programs that have proven the most successful in boosting achievement. See, e.g., COMMITTEE ON EDUC. & LABOR, 102D CONG., SHORTCHANGING CHILDREN: THE IMPACT OF FISCAL INEQUALITY ON THE EDUCATION OF STUDENTS AT RISK (Comm. Print 1991) (authored by William L. Taylor and Dianne M Piche). These programs include early childhood education, full-day kindergarten, small classes (especially for reading) in the earliest grades, and school-based health and social services. See KELMAN & LESTER, supra note 190, at 138-45: WIPING OUT DISADVANTAGES, supra note 109. On the other side of the coin, it is instructive to consider the results where states have taken over districts, ostensibly on the ground that those districts were being mismanaged. Those results are, in a word, underwhelming. In New Jersey, for example, performance levels in Paterson and Newark have changed little in the several years since the state took over the districts. See Jessica L. Sandham, Despite Takeover Laws, States Moving Cautiously on Interventions, EDUC. WK., Apr. 14, 1999, at 21. This disappointing showing by schools taken over by the state does not prove, of course, that money spent wisely will be ineffective - because it is not clear that the state is spending money wisely - but it does reveal that the obstacles facing high-poverty urban schools are noi amenable to quick fixes.
301. In addition to Ferguson's article and the evidence regarding whole-school reforms, there have been other attempts to identify the programs that have proven the most successful in boosting achievement. See, e.g., COMMITTEE ON EDUC. & LABOR, 102D CONG., SHORTCHANGING CHILDREN: THE IMPACT OF FISCAL INEQUALITY ON THE EDUCATION OF STUDENTS AT RISK (Comm. Print 1991) (authored by William L. Taylor and Dianne M Piche). These programs include early childhood education, full-day kindergarten, small classes (especially for reading) in the earliest grades, and school-based health and social services. See KELMAN & LESTER, supra note 190, at 138-45: WIPING OUT DISADVANTAGES, supra note 109. On the other side of the coin, it is instructive to consider the results where states have taken over districts, ostensibly on the ground that those districts were being mismanaged. Those results are, in a word, underwhelming. In New Jersey, for example, performance levels in Paterson and Newark have changed little in the several years since the state took over the districts. See Jessica L. Sandham, Despite Takeover Laws, States Moving Cautiously on Interventions, EDUC. WK., Apr. 14, 1999, at 21. This disappointing showing by schools taken over by the state does not prove, of course, that money spent wisely will be ineffective - because it is not clear that the state is spending money wisely - but it does reveal that the obstacles facing high-poverty urban schools are noi amenable to quick fixes.
302. See LINDA DARLING-HAMMOND, THE RIGHT TO LEARN: A BLUEPRINT FOR CREATING SCHOOLS THAT WORK 261-92 (1997); Ferguson, Paying for Public Education, supra note 190, at 480-81.
303. See LINDA DARLING-HAMMOND, THE RIGHT TO LEARN: A BLUEPRINT FOR CREATING SCHOOLS THAT WORK 261-92 (1997); Ferguson, Paying for Public Education, supra note 190, at 480-81.
304. See Ferguson, Paying for Public Education, supra note 190, at 489-90.
305. On the inefficacy of past reform efforts to improve city schools, see, for example, KOZOL, supra note 111, at 4; DONNA E. MUNCEY & PATRICK J. MCQUILLAN, REFORM AND RESISTANCE IN SCHOOLS AND CLASSROOMS: AN ETHNOGRAPHIC VIEW OF THE COALITION OF ESSENTIAL SCHOOLS (1996); DAVID TYACK & LARRY CUBAN, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM (1995); and Robert Rothman, Obstacle Course: Barriers to Change Thwart Reformers at Every Twist and Turn, EDUC. WK., Feb. 10, 1993, at 9.
306. On the inefficacy of past reform efforts to improve city schools, see, for example, KOZOL, supra note 111, at 4; DONNA E. MUNCEY & PATRICK J. MCQUILLAN, REFORM AND RESISTANCE IN SCHOOLS AND CLASSROOMS: AN ETHNOGRAPHIC VIEW OF THE COALITION OF ESSENTIAL SCHOOLS (1996); DAVID TYACK & LARRY CUBAN, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM (1995); and Robert Rothman, Obstacle Course: Barriers to Change Thwart Reformers at Every Twist and Turn, EDUC. WK., Feb. 10, 1993, at 9.
307. On the inefficacy of past reform efforts to improve city schools, see, for example, KOZOL, supra note 111, at 4; DONNA E. MUNCEY & PATRICK J. MCQUILLAN, REFORM AND RESISTANCE IN SCHOOLS AND CLASSROOMS: AN ETHNOGRAPHIC VIEW OF THE COALITION OF ESSENTIAL SCHOOLS (1996); DAVID TYACK & LARRY CUBAN, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM (1995); and Robert Rothman, Obstacle Course: Barriers to Change Thwart Reformers at Every Twist and Turn, EDUC. WK., Feb. 10, 1993, at 9.
308. On the inefficacy of past reform efforts to improve city schools, see, for example, KOZOL, supra note 111, at 4; DONNA E. MUNCEY & PATRICK J. MCQUILLAN, REFORM AND RESISTANCE IN SCHOOLS AND CLASSROOMS: AN ETHNOGRAPHIC VIEW OF THE COALITION OF ESSENTIAL SCHOOLS (1996); DAVID TYACK & LARRY CUBAN, TINKERING TOWARD UTOPIA: A CENTURY OF PUBLIC SCHOOL REFORM (1995); and Robert Rothman, Obstacle Course: Barriers to Change Thwart Reformers at Every Twist and Turn, EDUC. WK., Feb. 10, 1993, at 9.
309. ANYON, supra note 13, at 3-38, 157-62. As a result of her study, Anyon has become convinced that "poverty and racial isolation have often trivialized efforts . . . to teach, to learn, and to bring about change," id. at xiv, and she argues that educational reform efforts "must also include efforts to restore economic and political opportunities to inner city residents," id. at xvi.
310. WELLS & CRAIN, supra note 12, at 130.
311. Id. at 131.
312. Id.
313. See Gerald W. Bracey, A Lesson in Throwing Money, 79 PHI DELTA KAPPAN 789, 789 (1998) (Kansas City); Michael Powell, No Accounting for Some Workers in D.C. Schools, WASH. POST, Sept. 15, 1996, at A1: Valerie Strauss, D.C. Schools Hired People with Records, WASH. POST., Apr. 13, 1995. at B1; see also Beth Reinhardt, Racial Issues Cloud State Takeovers, EDUC. WK., Jan. 14, 1998, at 1. For example, Williard H. Murray, an African-American Democrat who represented Compton, California, for eight years until he retired in 1996, believes that school boards in some poor minority communities have become centers of patronage because they are one of the only large employers in town. As a result, Murray suggests, "the focus becomes political, not educational." Reinhardt, supra, at 1.
314. See Gerald W. Bracey, A Lesson in Throwing Money, 79 PHI DELTA KAPPAN 789, 789 (1998) (Kansas City); Michael Powell, No Accounting for Some Workers in D.C. Schools, WASH. POST, Sept. 15, 1996, at A1: Valerie Strauss, D.C. Schools Hired People with Records, WASH. POST., Apr. 13, 1995. at B1; see also Beth Reinhardt, Racial Issues Cloud State Takeovers, EDUC. WK., Jan. 14, 1998, at 1. For example, Williard H. Murray, an African-American Democrat who represented Compton, California, for eight years until he retired in 1996, believes that school boards in some poor minority communities have become centers of patronage because they are one of the only large employers in town. As a result, Murray suggests, "the focus becomes political, not educational." Reinhardt, supra, at 1.
315. See Gerald W. Bracey, A Lesson in Throwing Money, 79 PHI DELTA KAPPAN 789, 789 (1998) (Kansas City); Michael Powell, No Accounting for Some Workers in D.C. Schools, WASH. POST, Sept. 15, 1996, at A1: Valerie Strauss, D.C. Schools Hired People with Records, WASH. POST., Apr. 13, 1995. at B1; see also Beth Reinhardt, Racial Issues Cloud State Takeovers, EDUC. WK., Jan. 14, 1998, at 1. For example, Williard H. Murray, an African-American Democrat who represented Compton, California, for eight years until he retired in 1996, believes that school boards in some poor minority communities have become centers of patronage because they are one of the only large employers in town. As a result, Murray suggests, "the focus becomes political, not educational." Reinhardt, supra, at 1.
316. See Gerald W. Bracey, A Lesson in Throwing Money, 79 PHI DELTA KAPPAN 789, 789 (1998) (Kansas City); Michael Powell, No Accounting for Some Workers in D.C. Schools, WASH. POST, Sept. 15, 1996, at A1: Valerie Strauss, D.C. Schools Hired People with Records, WASH. POST., Apr. 13, 1995. at B1; see also Beth Reinhardt, Racial Issues Cloud State Takeovers, EDUC. WK., Jan. 14, 1998, at 1. For example, Williard H. Murray, an African-American Democrat who represented Compton, California, for eight years until he retired in 1996, believes that school boards in some poor minority communities have become centers of patronage because they are one of the only large employers in town. As a result, Murray suggests, "the focus becomes political, not educational." Reinhardt, supra, at 1.
317. It is important to recognize that, given the link between race and poverty, socioeconomic integration in most metropolitan areas would also entail racial integration. Thus, just as race and class intersect in the creation and maintenance of the pathological conditions that afflict many urban schools, so too do they intersect in affecting the efficacy and political plausibility of socioeconomic integration.
318. The impact of such integration on wealthier students is not entirely clear from the studies discussed in the text above. Studies regarding racial desegregation and its impact on the academic achievement of white students consistently conclude that "[w]hite children fail to suffer any learning disadvantage from desegregation." Janet Ward Schofield, Review of Research on School Desegregation's Impact on Elementary and Secondary School Students, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 597, 603 (James A. Banks, ed. 1995) (internal quotations omitted). Since at least some of the white children involved in desegregation plans are of a higher socioeconomic status than the black children involved, the findings with regard to racial desegregation are of some relevance to socioeconomic integration as well. A plausible inference from the studies, moreover, is that at a certain point - where the poorer students became a majority or substantial minority of the student population - the effects of integration would be detrimental to wealthier students. Clearly, however, the impact of socioeconomic integration on wealthier students could benefit from more direct study than it has received.
319. COLEMAN ET AL., supra note 165, at 304.
320. See James E. Rosenbaum, Black Pioneers - Do Their Moves to the Suburbs Increase Economic Opportunity for Mothers and Children?, 2 HOUSING POL'Y DEBATE 1179, 1198 (1991).
321. See WELLS & CRAIN, supra note 12, at 148. That transfer students start out at lower levels of achievement than magnet school students is especially important insofar as it suggests self-selection cannot fully explain why suburban transfer students outperform their city counterparts. The problem of self-selection and its effect on the accuracy of studies regarding student performance is a recurring one and difficult to avoid; it plagues, for example, studies that tend to show that poor minority children perform better in Catholic than in public schools. See, e.g., CENTER FOR THE FUTURE OF CHILDREN, APPENDIX C: CATHOLIC SCHOOLS SERVING DISADVANTAGED STUDENTS, THE FUTURE OF CHILDREN, Winter 1997, at 140, 141 (reviewing the literature on superior academic performance and the self-selection hypothesis); see also ARMOR, supra note 22, at 108-11 (questioning the significance of the results of Project Concern, which allowed Hartford students to attend suburban schools, on the ground that self-selection may explain why students who remained in the program posted better academic results and were more likely to attend college than students who either remained in Hartford schools or dropped out of the program); Robert L. Crain & Rita E. Mahard, School Racial Composition and Black College Attendance and Achievement in Test Performance, 51 SOC. OF EDUC. 81 (1978) (discussing the mixed evidence for a self-selection hypothesis in assessing the effect of attending a predominantly white school on black students' performance).
322. See WELLS & CRAIN, supra note 12, at 148. That transfer students start out at lower levels of achievement than magnet school students is especially important insofar as it suggests self-selection cannot fully explain why suburban transfer students outperform their city counterparts. The problem of self-selection and its effect on the accuracy of studies regarding student performance is a recurring one and difficult to avoid; it plagues, for example, studies that tend to show that poor minority children perform better in Catholic than in public schools. See, e.g., CENTER FOR THE FUTURE OF CHILDREN, APPENDIX C: CATHOLIC SCHOOLS SERVING DISADVANTAGED STUDENTS, THE FUTURE OF CHILDREN, Winter 1997, at 140, 141 (reviewing the literature on superior academic performance and the self-selection hypothesis); see also ARMOR, supra note 22, at 108-11 (questioning the significance of the results of Project Concern, which allowed Hartford students to attend suburban schools, on the ground that self-selection may explain why students who remained in the program posted better academic results and were more likely to attend college than students who either remained in Hartford schools or dropped out of the program); Robert L. Crain & Rita E. Mahard, School Racial Composition and Black College Attendance and Achievement in Test Performance, 51 SOC. OF EDUC. 81 (1978) (discussing the mixed evidence for a self-selection hypothesis in assessing the effect of attending a predominantly white school on black students' performance).
323. See WELLS & CRAIN, supra note 12, at 148. That transfer students start out at lower levels of achievement than magnet school students is especially important insofar as it suggests self-selection cannot fully explain why suburban transfer students outperform their city counterparts. The problem of self-selection and its effect on the accuracy of studies regarding student performance is a recurring one and difficult to avoid; it plagues, for example, studies that tend to show that poor minority children perform better in Catholic than in public schools. See, e.g., CENTER FOR THE FUTURE OF CHILDREN, APPENDIX C: CATHOLIC SCHOOLS SERVING DISADVANTAGED STUDENTS, THE FUTURE OF CHILDREN, Winter 1997, at 140, 141 (reviewing the literature on superior academic performance and the self-selection hypothesis); see also ARMOR, supra note 22, at 108-11 (questioning the significance of the results of Project Concern, which allowed Hartford students to attend suburban schools, on the ground that self-selection may explain why students who remained in the program posted better academic results and were more likely to attend college than students who either remained in Hartford schools or dropped out of the program); Robert L. Crain & Rita E. Mahard, School Racial Composition and Black College Attendance and Achievement in Test Performance, 51 SOC. OF EDUC. 81 (1978) (discussing the mixed evidence for a self-selection hypothesis in assessing the effect of attending a predominantly white school on black students' performance).
324. See WELLS & CRAIN, supra note 12, at 148. That transfer students start out at lower levels of achievement than magnet school students is especially important insofar as it suggests self-selection cannot fully explain why suburban transfer students outperform their city counterparts. The problem of self-selection and its effect on the accuracy of studies regarding student performance is a recurring one and difficult to avoid; it plagues, for example, studies that tend to show that poor minority children perform better in Catholic than in public schools. See, e.g., CENTER FOR THE FUTURE OF CHILDREN, APPENDIX C: CATHOLIC SCHOOLS SERVING DISADVANTAGED STUDENTS, THE FUTURE OF CHILDREN, Winter 1997, at 140, 141 (reviewing the literature on superior academic performance and the self-selection hypothesis); see also ARMOR, supra note 22, at 108-11 (questioning the significance of the results of Project Concern, which allowed Hartford students to attend suburban schools, on the ground that self-selection may explain why students who remained in the program posted better academic results and were more likely to attend college than students who either remained in Hartford schools or dropped out of the program); Robert L. Crain & Rita E. Mahard, School Racial Composition and Black College Attendance and Achievement in Test Performance, 51 SOC. OF EDUC. 81 (1978) (discussing the mixed evidence for a self-selection hypothesis in assessing the effect of attending a predominantly white school on black students' performance).
325. See WELLS & CRAIN, supra note 12, at 198-99.
326. See Orfield & Thronson, supra note 49, at 783 (citing GARY ORFIELD ET AL., DESEGREGATION AND EDUCATIONAL CHANGE IN SAN FRANCISCO: FINDINGS AND RECOMMENDATIONS ON CONSENT DECREE IMPLEMENTATION (1992) (report submitted to federal district court)). Orfield and Thronson note that academic improvements were realized when schools were totally reorganized - where, for example, the principal and the faculty were replaced with a new staff - which "sugges[s] that extremely far reaching changes would be needed to achieve in isolated schools the benefits that could be found in high achieving middle-class schools." Id.
327. See Orfield & Thronson, supra note 49, at 783.
328. See Rita E. Mahard & Robert L. Crain, Research on Minority Achievement in Desegregated Schools, in THE CONSEQUENCES OF SCHOOL DESEGREGATION 103 (Christine R. Rossell & Willis D. Hawley eds., 1983).
329. See id. at 111.
330. See id. at 118.
331. See Susan E. Mayer, How Much Does a High School's Racial and Socioeconomic Mix Affect Graduation and Teenage Fertility Rates?, in THE URBAN UNDERCLASS 321, 327 (Christopher Jencks & Paul E. Peterson eds., 1991) (presenting data showing "that students who attend high-SES schools are less likely to drop out and less likely to have a child than students of the same race and socioeconomic background who attend lower-SES schools").
332. See id. at 334; see also WELLS & CRAIN, supra note 12, at 340 (noting that "much of the research now suggests that African-American students who attend desegregated schools are less likely to drop out of school, get pregnant, or get into trouble with the law than those from segregated schools").
333. Richard J. Mumane, Evidence, Analysis, and Unanswered Questions, 51 HARV. EDUC. REV. 483, 486 (1981).
334. YUDOF ET AL., supra note 40, at 597. Significantly, David Armor, who is largely pessimistic about the academic benefits of desegregation, does not directly dispute the evidence regarding the effect of socioeconomic integration. In Forced Justice, he finesses the question and unfortunately never confronts it directly. He asserts, for example, that "sometimes achievement is higher in desegregated schools and sometimes it is lower, but in most cases the differences in achievement between desegregated and segregated schools are small once socioeconomic differences are taken into account." ARMOR, supra note 22, at 113 (emphasis added). Although Armor unfortunately does not elaborate, the italicized caveat suggests that socioeconomic differences among schools are consistent with large achievement differences.
335. See, e.g., Brown, supra note 5, at 6, 68-69; Brown, supra note 16, at 816-17 (arguing that the Supreme Court justified desegregation "as a means to remedy the cognitive, psychological, educational, and emotional harm inflicted by segregation on African-Americans; which is to say, it is a means to remedy a perceived deficit condition of African-Americans," and, more directly, that the Supreme Court orders to desegregate rested on a "notion of African-American inferiority"). The critics do not always come from the left. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 114 (1995) (Thomas, J., concurring).
336. See supra notes 205-218 and accompanying text.
337. See WELLS & CRAIN, supra note 12, at 340. These studies also suffered from methodological shortcomings that render a significant number of them unreliable. See Schofield, supra note 204. As Schofield explains, most studies did not take into account the degree of classroom segregation within desegregated schools (through the use of tracking and ability grouping, enrollment in special education classes, or simply self-separation), which obviously makes it difficult to assess the extent to which students in these studies actually experienced interracial contact. See id. at 598. Second, desegregation programs varied a great deal in how they were implemented (and still do), and these variations influenced the effect of the program on the students; yet most studies, particularly large-scale ones that examined a wide range of schools, did not pay attention to these variations. See id. Third, because of pressure to complete their work quickly, and because of a dearth of funds, most researchers conducted cross-sectional studies that compared a group of students in a desegregated school with a group in a segregated school over a relatively short time period - sometimes a single academic year. See id. Finally, desegregation studies, regardless of type, will often suffer from self-selection problems at both the school and individual level. As Schofield explains, the schools or families that agreed to participate in a desegregation study likely differed in relevant ways from those that refused. See id.
338. See WELLS & CRAIN, supra note 12, at 339-40.
339. See TUSHNET, supra note 17, at 6, 26-28; Carter, supra note 24, at 885.
340. See, e.g., ROBERT L. CRAIN ET AL., RAND CORP. REPORT No. R-3243-NIE, FINDING NICHES: DESEGREGATED STUDENTS SIXTEEN YEARS LATER 24, 51 (1985); Jomills Braddock & James McPartland, The Social and Academic Consequences of School Desegregation, EQUITY & CHOICE, Feb. 1988, at 5, 8-9. See generally Liebman, supra note 24, at 1624-30 (discussing empirical evidence).
341. See, e.g., ROBERT L. CRAIN ET AL., RAND CORP. REPORT No. R-3243-NIE, FINDING NICHES: DESEGREGATED STUDENTS SIXTEEN YEARS LATER 24, 51 (1985); Jomills Braddock & James McPartland, The Social and Academic Consequences of School Desegregation, EQUITY & CHOICE, Feb. 1988, at 5, 8-9. See generally Liebman, supra note 24, at 1624-30 (discussing empirical evidence).
342. See, e.g., ROBERT L. CRAIN ET AL., RAND CORP. REPORT No. R-3243-NIE, FINDING NICHES: DESEGREGATED STUDENTS SIXTEEN YEARS LATER 24, 51 (1985); Jomills Braddock & James McPartland, The Social and Academic Consequences of School Desegregation, EQUITY & CHOICE, Feb. 1988, at 5, 8-9. See generally Liebman, supra note 24, at 1624-30 (discussing empirical evidence).
343. The research on this point is rather thin, but not contradictory, as far as I can tell. See Crain & Mahard, supra note 207, at 98-99.
344. See CRAIN ET AL., supra note 223, at 11-12, 51 (finding that black males who attended desegregated public schools were 1.5 to 2 times as likely to complete college as those who attended segregated public schools); Liebman, supra note 24, at 1626 & n.681 (collecting sources indicating that blacks who attend desegregated schools "appear to receive higher average salaries as adults" than do blacks who attend segregated schools); see also Schofield, supra note 204, at 607 (reviewing studies and concluding that, although the evidence is sparse and influenced by region and gender, "attendance at desegregated schools appears to have some positive impact on the kind of jobs African Americans get as well as on the amount and type of college education they undertake"). Professor Liebman presents the evidence in its strongest light: [I]mproving achievement test scores is the least clear of desegregation's beneficial consequences. More certain is desegregation's positive impact on dropout, teenage pregnancy, and delinquency rates; on the likelihood that blacks will attend and succeed at college (particularly four-year colleges), secure employment in predominantly white job settings, and live in integrated neighborhoods as adults; and on the salary levels blacks attain in the labor market. Liebman, supra note 13, at 356-57. See generally Joondeph, supra note 64, at 191-94 (reviewing empirical evidence regarding the effects of desegregation on academic achievement, unemployment opportunities, and social relations).
345. Jomills Braddock and James McPartland did some of the earliest theoretical and empirical work on the subject. See Jomills H. Braddock II, The Perpetuation of Segregation Across Levels of Education: A Behavioral Assessment of the Contact-Hypothesis, 53 SOC. OF EDUC. 178 (1980); Jomills Henry Braddock & James M. McPartland, Assessing School Desegregation Effects: New Directions in Research, in RESEARCH IN SOCIOLOGY OF EDUCATION AND SOCIALIZATION 259, 272 (Alan C. Kerckhoff & Ronald G. Corwin eds., 1982). Not surprisingly, the same tendency appears to exist among whites. See, e.g., Schofield, supra note 204, at 610.
346. Jomills Braddock and James McPartland did some of the earliest theoretical and empirical work on the subject. See Jomills H. Braddock II, The Perpetuation of Segregation Across Levels of Education: A Behavioral Assessment of the Contact-Hypothesis, 53 SOC. OF EDUC. 178 (1980); Jomills Henry Braddock & James M. McPartland, Assessing School Desegregation Effects: New Directions in Research, in RESEARCH IN SOCIOLOGY OF EDUCATION AND SOCIALIZATION 259, 272 (Alan C. Kerckhoff & Ronald G. Corwin eds., 1982). Not surprisingly, the same tendency appears to exist among whites. See, e.g., Schofield, supra note 204, at 610.
347. Jomills Braddock and James McPartland did some of the earliest theoretical and empirical work on the subject. See Jomills H. Braddock II, The Perpetuation of Segregation Across Levels of Education: A Behavioral Assessment of the Contact-Hypothesis, 53 SOC. OF EDUC. 178 (1980); Jomills Henry Braddock & James M. McPartland, Assessing School Desegregation Effects: New Directions in Research, in RESEARCH IN SOCIOLOGY OF EDUCATION AND SOCIALIZATION 259, 272 (Alan C. Kerckhoff & Ronald G. Corwin eds., 1982). Not surprisingly, the same tendency appears to exist among whites. See, e.g., Schofield, supra note 204, at 610.
348. See Braddock, supra note 226, at 181; Mark Granovetter, The Micro-Structure of School Desegregation, in SCHOOL DESEGREGATION RESEARCH: NEW DIRECTIONS: INSTITUTIONAL ANALYSIS 81, 102-03 (Jeffrey Prager et al. eds., 1986) (demonstrating the importance of acquaintances and classmates - or "weak ties" - in the transmission of employment information and in creating employment opportunities); see also WELLS & CRAIN, supra note 12, at 340-42; Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 REV. EDUC. RES. 531 (1994).
349. See Braddock, supra note 226, at 181; Mark Granovetter, The Micro-Structure of School Desegregation, in SCHOOL DESEGREGATION RESEARCH: NEW DIRECTIONS: INSTITUTIONAL ANALYSIS 81, 102-03 (Jeffrey Prager et al. eds., 1986) (demonstrating the importance of acquaintances and classmates - or "weak ties" - in the transmission of employment information and in creating employment opportunities); see also WELLS & CRAIN, supra note 12, at 340-42; Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 REV. EDUC. RES. 531 (1994).
350. See Braddock, supra note 226, at 181; Mark Granovetter, The Micro-Structure of School Desegregation, in SCHOOL DESEGREGATION RESEARCH: NEW DIRECTIONS: INSTITUTIONAL ANALYSIS 81, 102-03 (Jeffrey Prager et al. eds., 1986) (demonstrating the importance of acquaintances and classmates - or "weak ties" - in the transmission of employment information and in creating employment opportunities); see also WELLS & CRAIN, supra note 12, at 340-42; Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 REV. EDUC. RES. 531 (1994).
351. See Braddock, supra note 226, at 181; Mark Granovetter, The Micro-Structure of School Desegregation, in SCHOOL DESEGREGATION RESEARCH: NEW DIRECTIONS: INSTITUTIONAL ANALYSIS 81, 102-03 (Jeffrey Prager et al. eds., 1986) (demonstrating the importance of acquaintances and classmates - or "weak ties" - in the transmission of employment information and in creating employment opportunities); see also WELLS & CRAIN, supra note 12, at 340-42; Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 REV. EDUC. RES. 531 (1994).
352. See, e.g., WELLS & CRAIN, supra note 12, at 551; Braddock, supra note 226, at 185; Liebman, supra note 24, at 1627 (collecting sources); Liebman, supra note 13, at 357 n.40.
353. See, e.g., ROBERT CRAIN ET AL., A LONGITUDINAL STUDY OF A METROPOLITAN VOLUNTARY SCHOOL DESEGREGATION PLAN 51 (1984) (finding that black students assigned to integrated suburban schools rather than segregated schools were less likely to drop out of high school or college, feel discriminated against in college, have a child before 18, or get into trouble with the police, and that they were more likely to live in integrated neighborhoods and have white friends); Braddock & McPartland, supra note 223, at 8-10, 63; see also Social Science Statement, supra note 147, at 13a & n.22 (collecting additional sources); Joondeph, supra note 64, at 194 n.178 (collecting sources). But see ARMOR, supra note 22, at 108-11 (arguing that the Crain study is inconclusive because many students left suburban Hartford schools to return to urban schools).
354. See, e.g., ROBERT CRAIN ET AL., A LONGITUDINAL STUDY OF A METROPOLITAN VOLUNTARY SCHOOL DESEGREGATION PLAN 51 (1984) (finding that black students assigned to integrated suburban schools rather than segregated schools were less likely to drop out of high school or college, feel discriminated against in college, have a child before 18, or get into trouble with the police, and that they were more likely to live in integrated neighborhoods and have white friends); Braddock & McPartland, supra note 223, at 8-10, 63; see also Social Science Statement, supra note 147, at 13a & n.22 (collecting additional sources); Joondeph, supra note 64, at 194 n.178 (collecting sources). But see ARMOR, supra note 22, at 108-11 (arguing that the Crain study is inconclusive because many students left suburban Hartford schools to return to urban schools).
355. See, e.g., ROBERT CRAIN ET AL., A LONGITUDINAL STUDY OF A METROPOLITAN VOLUNTARY SCHOOL DESEGREGATION PLAN 51 (1984) (finding that black students assigned to integrated suburban schools rather than segregated schools were less likely to drop out of high school or college, feel discriminated against in college, have a child before 18, or get into trouble with the police, and that they were more likely to live in integrated neighborhoods and have white friends); Braddock & McPartland, supra note 223, at 8-10, 63; see also Social Science Statement, supra note 147, at 13a & n.22 (collecting additional sources); Joondeph, supra note 64, at 194 n.178 (collecting sources). But see ARMOR, supra note 22, at 108-11 (arguing that the Crain study is inconclusive because many students left suburban Hartford schools to return to urban schools).
356. Jomills Braddock et al., A Long-Term View of School Desegregation: Some Recent Studies of Graduates as Adults, 66 PHI DELTA KAPPAN 259, 260 (1984); see also CRAIN ET AL., supra note 223, at 24, 51; Willis D. Hawley & Mark A. Smylie, The Contribution of School Desegregation to Academic Achievement and Racial Integration, in ELIMINATING RACISM: PROFILES IN CONTROVERSY 281, 290 (Phyllis A. Katz & Dalmas A. Taylor eds., 1988) (arguing that school desegregation integrates more effectively than fair housing or fair employment programs); H.N. Hirsch, The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community, 14 POL. THEORY 423, 443 n.96 (1986) (citing empirical literature documenting that exposure to previously excluded persons, over time, will lead to acceptance and inclusion).
357. Jomills Braddock et al., A Long-Term View of School Desegregation: Some Recent Studies of Graduates as Adults, 66 PHI DELTA KAPPAN 259, 260 (1984); see also CRAIN ET AL., supra note 223, at 24, 51; Willis D. Hawley & Mark A. Smylie, The Contribution of School Desegregation to Academic Achievement and Racial Integration, in ELIMINATING RACISM: PROFILES IN CONTROVERSY 281, 290 (Phyllis A. Katz & Dalmas A. Taylor eds., 1988) (arguing that school desegregation integrates more effectively than fair housing or fair employment programs); H.N. Hirsch, The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community, 14 POL. THEORY 423, 443 n.96 (1986) (citing empirical literature documenting that exposure to previously excluded persons, over time, will lead to acceptance and inclusion).
358. Jomills Braddock et al., A Long-Term View of School Desegregation: Some Recent Studies of Graduates as Adults, 66 PHI DELTA KAPPAN 259, 260 (1984); see also CRAIN ET AL., supra note 223, at 24, 51; Willis D. Hawley & Mark A. Smylie, The Contribution of School Desegregation to Academic Achievement and Racial Integration, in ELIMINATING RACISM: PROFILES IN CONTROVERSY 281, 290 (Phyllis A. Katz & Dalmas A. Taylor eds., 1988) (arguing that school desegregation integrates more effectively than fair housing or fair employment programs); H.N. Hirsch, The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community, 14 POL. THEORY 423, 443 n.96 (1986) (citing empirical literature documenting that exposure to previously excluded persons, over time, will lead to acceptance and inclusion).
359. Jomills Braddock et al., A Long-Term View of School Desegregation: Some Recent Studies of Graduates as Adults, 66 PHI DELTA KAPPAN 259, 260 (1984); see also CRAIN ET AL., supra note 223, at 24, 51; Willis D. Hawley & Mark A. Smylie, The Contribution of School Desegregation to Academic Achievement and Racial Integration, in ELIMINATING RACISM: PROFILES IN CONTROVERSY 281, 290 (Phyllis A. Katz & Dalmas A. Taylor eds., 1988) (arguing that school desegregation integrates more effectively than fair housing or fair employment programs); H.N. Hirsch, The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community, 14 POL. THEORY 423, 443 n.96 (1986) (citing empirical literature documenting that exposure to previously excluded persons, over time, will lead to acceptance and inclusion).
360. ARMOR, supra note 22, at 113. Armor nonetheless notes that caution is in order in interpreting the studies because it is unclear whether school desegregation or preferences are responsible for the results. As he notes, the studies do not distinguish between students who attended schools that were desegregated as a result of residential desegregation and those that were desegregated as a result of school desegregation; for the former, it is plausible to conclude that the results shown in the studies "might simply be a family preference for desegregated environments being passed on from one generation to the next." Id. Although Armor is correct to point out this weakness in the studies, given the intense degree of residential segregation and the fact (acknowledged by Armor) that school districts with desegregation plans experienced more integration than those without, it is highly unlikely that the results can be explained solely or even primarily by residential integration and passed-on preferences.
361. Schofield, supra note 204, at 610.
362. See MASSEY & DENTON, supra note 2; WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW URBAN POOR (1996).
363. See MASSEY & DENTON, supra note 2, at 229-236. Similarly, Professor Roisman criticizes Massey and Demon's recommendations for not going far enough to address the systemic and structural problems identified by their analysis, and she offers additional reforms designed to be more comprehensive and aggressive. See Roisman, supra note 114, at 512-25. Like Massey and Denton, however, Professor Roisman fails to consider school desegregation as part of her otherwise more comprehensive proposal.
364. See, e.g., DAVID L. KIRP ET AL., OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995); NEAL B. PEIRCE, CITISTATES (1993); DAVID RUSK, CITIES WITHOUT SUBURBS (1993); WEIHER, supra note 113; Frug, supra note 152.
365. See, e.g., DAVID L. KIRP ET AL., OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995); NEAL B. PEIRCE, CITISTATES (1993); DAVID RUSK, CITIES WITHOUT SUBURBS (1993); WEIHER, supra note 113; Frug, supra note 152.
366. See, e.g., DAVID L. KIRP ET AL., OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995); NEAL B. PEIRCE, CITISTATES (1993); DAVID RUSK, CITIES WITHOUT SUBURBS (1993); WEIHER, supra note 113; Frug, supra note 152.
367. See, e.g., DAVID L. KIRP ET AL., OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995); NEAL B. PEIRCE, CITISTATES (1993); DAVID RUSK, CITIES WITHOUT SUBURBS (1993); WEIHER, supra note 113; Frug, supra note 152.
368. See, e.g., PEIRCE, supra note 235, at x-xi; RUSK, supra note 235, at 10-35.
369. See Frug, supra note 152, at 42-45; see also Jerry Frug, The Geography of Community, 48 STAN. L. REV. 1047, 1104-07 (1996) (suggesting that cities in metropolitan areas should negotiate with neighboring localities in order to build communities and address the area's problems).
370. See, e.g., Frug, supra note 152, at 58. Professor Frug offers a proposal that rejects the current school-districting rules and "installs in their place a system that makes both educational resources and students the responsibility of the region as a whole." Id. Regardless of one's sympathy for or antipathy toward Professor Frug's end goal, it is difficult to discern just how that goal will be reached, especially given his explicit rejection of reliance "on government orders and court mandates." Id.
371. Edward A. Zelinsky, Metropolitanism, Progressivism, and Race, 98 COLUM. L. REV. 665, 667 (1998) (reviewing KIRP ET AL., supra note 235; PEIRCE, supra note 235; RUSK, supra note 235).
372. The Mount Laurel litigation, the subject of KIRP ET AL., supra note 235, is the most famous attempt to use the couns to force suburbs to include low-income housing opportunities. See Hills Dev. Co. v. Township of Bernards, 510 A.2d 621 (N.J. 1986); Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983); Southern Burlington NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975). As Kirp and his co-authors describe, although the New Jersey Supreme Court was originally quite aggressive in attempting to force suburban towns to provide low-and moderate-income housing, it eventually retreated and upheld fair housing legislation that grants suburban towns a number of ways to avoid their supposed obligation to zone for low-income housing. See KIRP ET AL., supra note 235, at 90, 137, 157, 159; see also Zelinsky, supra note 239, at 687-88 (describing the Mount Laurel litigation and its aftermath and noting that the most revealing fact from the Kirp study may be that there is no low-income housing in Mount Laurel today).
373. Zelinksky, supra note 239, at 667.
374. Id. at 668.
375. See, e.g., Schofield, supra note 204, at 610 (reviewing studies and opinion surveys indicating that desegregated school experiences can alter attitudes of whites and blacks toward members of the other group, and indicating in particular that "[w]hites in desegregated schools frequently show a decrease in their often initially high levels of fear and avoidance of African Americans, and an increasing willingness and ability to work with them"). For discussion of literature suggesting that experiences shape preferences and specifically that "[p]rivate preferences often do adjust to limitations in current practices and opportunities," see Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2420 (1994). See also Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 758-61 (1991) (same).
376. See, e.g., Schofield, supra note 204, at 610 (reviewing studies and opinion surveys indicating that desegregated school experiences can alter attitudes of whites and blacks toward members of the other group, and indicating in particular that "[w]hites in desegregated schools frequently show a decrease in their often initially high levels of fear and avoidance of African Americans, and an increasing willingness and ability to work with them"). For discussion of literature suggesting that experiences shape preferences and specifically that "[p]rivate preferences often do adjust to limitations in current practices and opportunities," see Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2420 (1994). See also Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 758-61 (1991) (same).
377. See, e.g., Schofield, supra note 204, at 610 (reviewing studies and opinion surveys indicating that desegregated school experiences can alter attitudes of whites and blacks toward members of the other group, and indicating in particular that "[w]hites in desegregated schools frequently show a decrease in their often initially high levels of fear and avoidance of African Americans, and an increasing willingness and ability to work with them"). For discussion of literature suggesting that experiences shape preferences and specifically that "[p]rivate preferences often do adjust to limitations in current practices and opportunities," see Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2420 (1994). See also Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 758-61 (1991) (same).
378. Some evidence indicates that increased levels of school integration lead to decreased amounts of residential segregation and that metropolitan-wide desegregation plans reduce housing segregation in the metropolitan area more than city-only plans. See Diana Pearce, Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns, Report to the National Institute of Education, Washington, D.C. (Nov. 1980) (pairing seven cities, and finding that cities involved in metropolitan-wide desegregation plans experience more housing desegregation than those involved in city-only plans); Diana Pearce et al., Lessons Not Lost: The Effect of School Desegregation on the Rate of Residential Segregation in Large Central Cities, Paper Presented to the Center for National Policy Review, Washington, D.C. (1984) (examining the 25 largest cities with black populations over 100,000 in 1980 and finding a substantial correlation between a reduction in school segregation and a reduction in central-city housing segregation). These two studies have been criticized on methodological grounds by Armor and Rossell. See ARMOR, supra note 22, at 149-51; Christine H. Rossell, Does School Desegregation Policy Stimulate Residential Integration? A Critique of the Research, 21 URB. EDUC. 403, 404-15 (1987). Armor, for example, points out that the more recent study only computes the dissimilarity index for black versus nonblack and thus does not calculate the impact of increased numbers of Hispanics and Asians in central cities. See ARMOR, supra note 22, at 149. He also observes that examining only the segregation indices for central cities ignores white flight to the suburbs, see id. at 149-50, although the 1980 Pearce study seems to meet that criticism by showing that metropolitan-wide desegregation plans are associated with greater housing desegregation than city-only plans.
379. Some evidence indicates that increased levels of school integration lead to decreased amounts of residential segregation and that metropolitan-wide desegregation plans reduce housing segregation in the metropolitan area more than city-only plans. See Diana Pearce, Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns, Report to the National Institute of Education, Washington, D.C. (Nov. 1980) (pairing seven cities, and finding that cities involved in metropolitan-wide desegregation plans experience more housing desegregation than those involved in city-only plans); Diana Pearce et al., Lessons Not Lost: The Effect of School Desegregation on the Rate of Residential Segregation in Large Central Cities, Paper Presented to the Center for National Policy Review, Washington, D.C. (1984) (examining the 25 largest cities with black populations over 100,000 in 1980 and finding a substantial correlation between a reduction in school segregation and a reduction in central-city housing segregation). These two studies have been criticized on methodological grounds by Armor and Rossell. See ARMOR, supra note 22, at 149-51; Christine H. Rossell, Does School Desegregation Policy Stimulate Residential Integration? A Critique of the Research, 21 URB. EDUC. 403, 404-15 (1987). Armor, for example, points out that the more recent study only computes the dissimilarity index for black versus nonblack and thus does not calculate the impact of increased numbers of Hispanics and Asians in central cities. See ARMOR, supra note 22, at 149. He also observes that examining only the segregation indices for central cities ignores white flight to the suburbs, see id. at 149-50, although the 1980 Pearce study seems to meet that criticism by showing that metropolitan-wide desegregation plans are associated with greater housing desegregation than city-only plans.
380. Some evidence indicates that increased levels of school integration lead to decreased amounts of residential segregation and that metropolitan-wide desegregation plans reduce housing segregation in the metropolitan area more than city-only plans. See Diana Pearce, Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns, Report to the National Institute of Education, Washington, D.C. (Nov. 1980) (pairing seven cities, and finding that cities involved in metropolitan-wide desegregation plans experience more housing desegregation than those involved in city-only plans); Diana Pearce et al., Lessons Not Lost: The Effect of School Desegregation on the Rate of Residential Segregation in Large Central Cities, Paper Presented to the Center for National Policy Review, Washington, D.C. (1984) (examining the 25 largest cities with black populations over 100,000 in 1980 and finding a substantial correlation between a reduction in school segregation and a reduction in central-city housing segregation). These two studies have been criticized on methodological grounds by Armor and Rossell. See ARMOR, supra note 22, at 149-51; Christine H. Rossell, Does School Desegregation Policy Stimulate Residential Integration? A Critique of the Research, 21 URB. EDUC. 403, 404-15 (1987). Armor, for example, points out that the more recent study only computes the dissimilarity index for black versus nonblack and thus does not calculate the impact of increased numbers of Hispanics and Asians in central cities. See ARMOR, supra note 22, at 149. He also observes that examining only the segregation indices for central cities ignores white flight to the suburbs, see id. at 149-50, although the 1980 Pearce study seems to meet that criticism by showing that metropolitan-wide desegregation plans are associated with greater housing desegregation than city-only plans.
381. Some evidence indicates that increased levels of school integration lead to decreased amounts of residential segregation and that metropolitan-wide desegregation plans reduce housing segregation in the metropolitan area more than city-only plans. See Diana Pearce, Breaking Down Barriers: New Evidence on the Impact of Metropolitan School Desegregation on Housing Patterns, Report to the National Institute of Education, Washington, D.C. (Nov. 1980) (pairing seven cities, and finding that cities involved in metropolitan-wide desegregation plans experience more housing desegregation than those involved in city-only plans); Diana Pearce et al., Lessons Not Lost: The Effect of School Desegregation on the Rate of Residential Segregation in Large Central Cities, Paper Presented to the Center for National Policy Review, Washington, D.C. (1984) (examining the 25 largest cities with black populations over 100,000 in 1980 and finding a substantial correlation between a reduction in school segregation and a reduction in central-city housing segregation). These two studies have been criticized on methodological grounds by Armor and Rossell. See ARMOR, supra note 22, at 149-51; Christine H. Rossell, Does School Desegregation Policy Stimulate Residential Integration? A Critique of the Research, 21 URB. EDUC. 403, 404-15 (1987). Armor, for example, points out that the more recent study only computes the dissimilarity index for black versus nonblack and thus does not calculate the impact of increased numbers of Hispanics and Asians in central cities. See ARMOR, supra note 22, at 149. He also observes that examining only the segregation indices for central cities ignores white flight to the suburbs, see id. at 149-50, although the 1980 Pearce study seems to meet that criticism by showing that metropolitan-wide desegregation plans are associated with greater housing desegregation than city-only plans.
382. See MASSEY & DENTON, supra note 2, at 130-47.
383. The success of racial integration in altering life chances and improving race relations depends, of course, on how the integration plan is implemented. See, e.g., Social Science Statement, supra note 147, at 14a-21a.
384. As mentioned above, the classification of school finance cases into waves vastly oversimplifies the cases, both by eliding decisions, like New Jersey's or Kentucky's, that straddle the equality/adequacy approach and by ignoring the fact that the chronological progression has not been without exceptions. For example, one of the most recent school finance decisions, from Vermont, explicitly recognized the right to an equal education. See Brigham v. State, 692 A.2d 384 (Vt. 1997). For my purposes here, however, the wave categorization is sufficient to distinguish different approaches to school finance cases, and, especially, to distinguish the approach I suggest from earlier ones. In a nutshell, the first three waves, while resting on different legal theories, have all sought remedies focusing on the distribution of resources. The fourth wave that I propose would focus on the distribution of students.
385. See Ryan, supra note 16, at 546-47.
386. For an extended discussion of how these claims could be formulated, as well as possible objections to them, see id. at 553-60. One potentially insuperable obstacle to a state court decision ordering racial integration should be noted here. It is possible that the Supreme Court would hold unconstitutional voluntary efforts by states to increase racial integration. See id. at 559-60. At the moment, the constitutionality of using race voluntarily (that is, not as a part of a remedy for prior segregation) in assigning elementary and secondary students is an open question. See id.
387. See id. at 546.
388. See ARMOR, supra note 22, at 226-31; ORFIELD ET AL., supra note 22, at 194, 354-55.
389. See James Brooke, Minorities Flock to Cause of Vouchers for Schools, N.Y. TIMES, Dec. 27, 1997, at A1 (reporting survey results indicating that 72% of black parents polled supported school vouchers while the general public split 48% to 48%). At the same time, the NAACP has joined with People for the American Way to oppose vouchers. See Kweisi Mfume & Carole Shields, A Partnership for Public Education (visited Feb. 22, 1999) .
390. See James Brooke, Minorities Flock to Cause of Vouchers for Schools, N.Y. TIMES, Dec. 27, 1997, at A1 (reporting survey results indicating that 72% of black parents polled supported school vouchers while the general public split 48% to 48%). At the same time, the NAACP has joined with People for the American Way to oppose vouchers. See Kweisi Mfume & Carole Shields, A Partnership for Public Education (visited Feb. 22, 1999) .
391. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
392. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
393. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
394. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
395. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
396. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47
397. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
398. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
399. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
400. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
401. For concise but thorough discussions of the various arguments for and against school choice, see Michael Heise, Assessing the Efficacy of School Desegregation, 46 SYRACUSE L. REV. 1093, 1104-09 (1996); Stephen D. Sugarman, Using Private Schools To Promote Public Values: The Redesign of Urban Education, 1991 U. CHI. LEGAL F. 171; see also Diane Ravitch, Somebody's Children: Educational Opportunities for All, in NEW SCHOOLS FOR A NEW CENTURY 251 (Diane Ravitch & Joseph P. Viteritti eds., 1997). One of the most important issues, of course, is whether vouchers for religious schools run afoul of religion clauses in state and federal constitutions. As of this writing, five state supreme courts and one federal appeals court have ruled on school choice programs that allow vouchers or tax credits to be used for covering or subsidizing the costs of religious schools. The courts have split in their results. Three state supreme courts have ruled that vouchers or tax credits can be applied to tuition at private religious schools without violating state or federal religion clauses. See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (ruling that providing tax credits to subsidize tuition at private religious schools does not violate the religion clauses of the state or federal constitutions); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (ruling that allowing vouchers to be used at private religious schools does not violate the religion clauses of the state or federal constitutions); Jackson v. Benson, 578 N.W. 2d 602 (Wis. 1998) (same), cert. denied, 119 S. Ct. 466 (1998). Two state supreme courts and a federal court of appeals have reached the contrary conclusion. See Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999) (holding that allowing parents to use vouchers at religious schools would violate the Establishment Clause of the federal Constitution); Bagley v. Raymond Sch. Dep't., 728 A.2d 127, 136-46 (Me. 1999) (same); Chittenden Town Sch. Dist. v. Department of Educ., No. 97-275, 1999 WL 378244 (Vt. June 11, 1999) (same). The United States Supreme Court has yet to rule on the issue, although it is likely that it will do so in the near future, given the split among courts and the importance of the question. Commentators are divided in their predictions of how the Court will resolve the issue, but there seems to be more support for the prediction that the Court will uphold the use of vouchers at religious schools. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 1223 (2d ed. 1988) (suggesting that the Court's recent Establishment Clause decisions indicate that "the Court would uphold an educational voucher scheme that would permit parents to decide which schools, public or private, their children should attend"); Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 CAL. L. REV. 5, 13 (1987) (same); Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. CHI. LEGAL F. 123, 143-47 (same); Joseph Viteritti, Blame's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 661 (1998) (same). But see David Futterman, School Choice and the Religion Clauses: The Law and Politics of Public Aid to Private Parochial Schools, 81 GEO. L.J. 711, 732 (1993) (concluding that using tuition vouchers at religious schools is fundamentally at odds with the Establishment Clause); Harlan A. Loeb & Debbie N. Kaminer, God, Money and Schools: Voucher Programs Impugn the Separation of Church and State, 30 J. MARSHALL L. REV. 1, 37 (1996) (same). How the Court resolves the issue is quite important for the future of voucher programs, both because most private schools (80%) are sectarian and because Catholic schools are the only private schools that have demonstrated consistently an ability to produce strong results among disadvantaged students for a relatively low tuition. See CENTER FOR THE FUTURE OF CHILDREN, supra note 207, at 140.
402. See Farley & Frey, supra note 121, at 39.
403. By "diverse" I simply mean private schools that are not composed primarily of poor minority students.
404. I am certainly not the first to recognize this point. Paul Gewirtz, in an article in which he otherwise opposed the use of school choice as a substitute for mandatory desegregation, recognized that interdistrict choice may be the only way to achieve interracial contact in many metropolitan areas. See Paul Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 COLUM. L. REV. 728, 778-79 (1986).
405. See WELLS & CRAIN, supra note 12, at 146; Rossell & Armor, supra note 150, at 296-99.
406. Allowing school choice does not guarantee, of course, that all parents will choose better schools or schools outside of their own neighborhoods. Allowing school choice, however, will surely result in some parents' choosing different and better schools for their children, as the choice programs in St. Louis and East Harlem demonstrate. See generally CHUBB & MOE, supra note 167, at 212-15 (discussing the East Harlem intra-district school choice plan); WELLS & CRAIN, supra note 12, at 180-218 (discussing black city students who choose to attend suburban schools). In addition, efforts can be made to provide information to parents regarding the choices available, as occurs in East Harlem and Cambridge. See CHUBB & MOE, supra note 167, at 210-15. Finally, efforts can also be made to provide incentives to encourage parents to choose integrated schools. See, e.g., ARMOR, supra note 22, at 228-31. Armor proposes what he calls an "equity-choice" plan, which would entail devoting additional resources to city schools to convert them into magnet schools, allowing parents to choose any school within a largely defined geographical area and giving priority and transportation subsidies to transfers that improve the racial balance at the sending or receiving schools. See id.
407. Compare CHUBB & MOE, supra note 167, at 217 (arguing that "reformers would do well to entertain the notion that choice is a panacea"), with Mfume & Shields, supra note 252 (arguing that vouchers will pose an enormous threat to public education), and Liebman, supra note 167, at 277-93 (same).
408. The fear that choice programs will skim off the best students (or students with the most motivated parents) and leave urban schools filled only with the most disadvantaged students looms large in the opposition to school choice. See, e.g., Liebman, supra note 167, at 292. Some existing choice programs, including the current voucher plans in Milwaukee and Cleveland, respond to this fear by limiting vouchers to low-income students and by continuing to provide public schools a portion of the funding that exiting students would have brought into those schools. Another possible backstop is the education clauses that have formed the basis for school finance challenges; these clauses could be used (at least in states that have recognized the right to an equal or adequate education) to challenge choice programs that do not ensure that all schools remain at least adequate. See Note, The Limits of Choice: School Choice Reform and State Constitutional Guarantees of Educational Quality, 109 HARV. L. REV. 2002 (1996) (arguing that education clauses in state constitutions require the states adopting school choice programs to ensure that all students continue to receive an adequate education). Finally, it is worth considering the possibility that those "left behind" in public schools could actually benefit if the school population and class sizes decrease.
409. See Emily Van Dunk, Exploring the Market for School Choice, EDUC. WK., Sept. 16, 1998, at 39 (describing a coalition of pro-voucher conservatives and African Americans in Milwaukee and Cleveland).
410. This is particularly true with regard to school choice, given its historical connection to attempts by Southern states to avoid desegregation. See, e.g., Green v. County Sch. Bd., 391 U.S. 430 (1968); see also Molly Townes O'Brien, Private School Vouchers and the Realities of Racial Politics, 64 TEMP. L. REV. 359, 374-92 (1997) (tracing the political and legal history of the voucher movement and the use of vouchers by Southern legislatures to avoid integration).
411. This is particularly true with regard to school choice, given its historical connection to attempts by Southern states to avoid desegregation. See, e.g., Green v. County Sch. Bd., 391 U.S. 430 (1968); see also Molly Townes O'Brien, Private School Vouchers and the Realities of Racial Politics, 64 TEMP. L. REV. 359, 374-92 (1997) (tracing the political and legal history of the voucher movement and the use of vouchers by Southern legislatures to avoid integration).
412. Of special importance is the inclusion of public suburban schools in choice programs and the provision of some transportation aid. Interdistrict choice plans exist in a number of states, but typically they allow schools to opt out and refuse to accept transfer students. They also often fail to cover transportation costs. See Constance Hawke, The "Choice" for Urban School Districts: Open Enrollment or Desegregation, 115 EDUC. LAW. REP. 609, 610 n.6 (1997);
413. Angela G. Smith, Public School Choice and Open Enrollment: Implications for Education, Desegregation, and Equity, 74 NEB. L. REV. 255, 273-74 (1995). Massachusetts is a perfect example: Transportation costs are not provided and participation by school districts is voluntary. According to one report, only 25% of all the districts in the state participate in the plan, and none of the suburban districts surrounding Boston participates.
414. See Joseph P. Viteritti, Choosing Equality: Religious Freedom and Educational Opportunity Under Constitutional Federalism, 15 YALE L. & POL'Y REV. 113, 172 (1996)
415. (citing ABIGAIL THERNSTROM, SCHOOL CHOICE IN MASSACHUSETTS 67 (1991)).
416. For a good example of how school choice plans can be structured in a way that assists disadvantaged students, see JOHN E. COONS & STEPHEN D. SUGARMAN, EDUCATION BY CHOICE: THE CASE FOR FAMILY CONTROL 190-211 (1978); and JOHN E. COONS & STEPHEN D. SUGARMAN, SCHOLARSHIPS FOR CHILDREN (1992). Coons and Sugarman, it bears mentioning, were early school finance advocates and together with William Clune wrote a classic early work advocating fiscal neutrality (that is, equal funding for equal tax effort) as the principle around which school finance systems should be organized. See COONS ET AL., supra note 30, at 201-42.
417. For a good example of how school choice plans can be structured in a way that assists disadvantaged students, see JOHN E. COONS & STEPHEN D. SUGARMAN, EDUCATION BY CHOICE: THE CASE FOR FAMILY CONTROL 190-211 (1978); and JOHN E. COONS & STEPHEN D. SUGARMAN, SCHOLARSHIPS FOR CHILDREN (1992). Coons and Sugarman, it bears mentioning, were early school finance advocates and together with William Clune wrote a classic early work advocating fiscal neutrality (that is, equal funding for equal tax effort) as the principle around which school finance systems should be organized. See COONS ET AL., supra note 30, at 201-42.
418. Advocates in Connecticut recognized as much, and this explains why they pursued the Sheff case despite earlier school finance litigation that had been successful in increasing expenditures in Hartford. See Ryan, supra note 16, at 536-38.
419. Cf. KOZOL, supra note 111, at 209-10; Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 948 (1998); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 715 (1992) ("Rather than sparking continued struggle for change, [Brown] has served to deaden political debate and to legitimate the status quo.").
420. Cf. KOZOL, supra note 111, at 209-10; Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 948 (1998); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 715 (1992) ("Rather than sparking continued struggle for change, [Brown] has served to deaden political debate and to legitimate the status quo.").