By Michael Gorelik
“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
This year marks the 63rd anniversary of the United States Supreme Court striking down the nation’s “separate but equal” doctrine in the landmark desegregation case, Brown v. Board of Education. Writing on behalf of a unanimous Court, Chief Justice Earl Warren proclaimed that segregation deprived African-Americans of the Fourteenth Amendment’s guarantee of the equal protection of the law[i]. Brown was monumental because the Court’s decision was not grounded in the disparities in quality of white and black public education at the time. Instead, the decision was premised on the proposition that inequality was ingrained in the concept of segregation because the system perpetuated feelings of inferiority for colored children regarding their status in the community[ii]. Parity in school quality was no longer a constitutional solution[iii].
The Brown decision was a breakthrough case for racial justice, and thereafter great strides were made to provide an equal educational opportunity for American children of all ethnicities through the nation-wide dismantling of dual school systems. Yet, federal data released by the U.S. Government Accountability Office in 2016 suggests that Brown’s initial influence has dwindled as the number of K-12 public schools in high-poverty areas comprised mostly of black or Hispanic students has more than doubled from 7,009 schools in 2000, to 15,089 schools in 2014[iv]. The UCLA Civil Rights Project has also noted that the percentage of black students attending schools with a majority white population in 2011 was the lowest it had been in almost 50 years[v].
The problem of increasing racial and socio-economic isolation has been exacerbated by the national expansion of charter schools in the United States of America. Charter schools are publicly funded, privately managed K-12 educational institutions which operate under a legislative contract with the state[vi]. Charter schools operate independently of the public-school system and are therefore exempt from certain state regulations[vii]. For example, charter schools can accept students from across the state because they are not subject to state districting or zoning limitations[viii]. Consequently, students and parents have the choice to bypass their district public schools and enroll at charter schools.
One of the federal government’s key policies for nationwide education reform has been incentivizing state charter school expansion. Charter schools have been favored by the federal government in part because they are purported to be academically superior to traditional public schools. As an example, the Obama administration’s Race to the Top program predicated the receipt of federal funding to states on, among other things, charter school expansion[ix].
Notwithstanding the purported academic advantages, federal government policies which promote charter school expansion are inconsistent with Brown’s goal of school integration because the incidental effect of charter schools is to increase segregation amongst public school students.
There are two ways in which charter schools have contributed to increasing segregation in both the charter schools students attend, and in the traditional public schools which they forego attending.
First, some charter schools attract a higher concentration of minority students than their district public school counterparts. A report by Dr. Erica Frankenburg, associate professor of education at Pennsylvania State University, found that, in fifteen states, 70% of black students in charter schools attended schools which had at least a 90% minority population[x]. In four of those states, 90% of black students attended charter schools that had at least a 90% minority population[xi]. These statistics far surpassed the 36% of black students enrolled in similarly segregated traditional public schools in the same states[xii]. As evidenced by the NAACP’s recent proposed moratorium on charter schools, charter schools with overwhelmingly minority populations have been criticized for increasing segregation and robbing traditional schools in the neighborhood from state funding and resources[xiii].
Second, the availability of charter schools can lead to “white flight”. In North Carolina, charter schools have become a means by which white parents can withdraw their children from the traditional public school system[xiv]. In 2015, Helen Ladd of Duke University found that, in the last fifteen years, the public schools in North Carolina had become less white, while charter school populations had grown more white[xv]. In a preceding study, Ladd discovered that white North Carolina parents preferred schools where the student population was less than 20 percent black[xvi]. As a consequence of “white flight”, the public schools that are left behind by white students for charter schools in North Carolina for being ‘too black’ begin to have almost entirely black student populations.
However, even where the choice to attend a charter school is based on considerations other than race, the educational model of charter schools generally favors granting access to affluent, white families. The charter school model can increase segregation because the limited services the schools are mandated to provide exclude certain students from consideration. For example, charter schools are free to choose their location, but unlike public schools are not required in all states to provide transportation or lunch to students[xvii]. This increases the cost of attending charter schools for poorer minority students, thereby excluding them from access to the same educational opportunities as affluent, white students. The traditional public schools these white students leave behind become increasingly segregated.
Part of the reason that charter schools incidentally promote segregation is that there is little to no government oversight in the industry. Last year, a new audit from the Office of the Inspector General found that charter schools pose a risk to federal funds because of the lack of accountability and lack of assurances that the charter schools were comporting in accordance with the federal government’s requirements[xviii]. The minimal government oversight and enforcement of charter schools allows for these schools to implement policies that contradict the spirit of Brown and defy established civil rights doctrine. For example, Minnesota’s charter schools do not have to comply with the state’s desegregation rule because they are not considered a “school”[xix].
Regardless of whether charter schools attract high concentrations of minorities or enable “white flight”, charter schools exacerbate segregation and contravene Brown because of a lack of government oversight. Proponents of charter schools who highlight the comparable quality of charter and traditional public schools miss the pivotal argument made in Brown. Brown teaches us that charter schools cannot be justified if their effect is to separate students by their race, whether deliberately or incidentally [xx]. No child in the United States should feel inferior because of the school that they attend.
The ability to accept students from various districts suggests that charter schools can be catalysts towards an equal educational opportunity for all students rather a racial and socio-economic divider. However, continued federal funding should be conditioned on adherence to greater government oversight and regulation of charter schools to ensure that they are not used as tools for re-segregation. Weighted lottery systems, outreach to minority communities, and free lunch and transportation programs are all examples of diversity initiatives that can be mandated by the federal government to promote continued school integration. In the age of school choice, respect for the principles of equality and racial justice that Brown cemented into this nation’s civil rights history require that the government take a more active role in promoting racial integration in our increasingly diverse country.
[i] Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 495 (1954)
[ii] Id.
[iii] Id at 494.
[iv] Greg Toppo, GAO study: Segregation worsening in U.S. schools, USATODAY (May 17, 2016), http://www.usatoday.com/story/news/2016/05/17/gao-study-segregation-worsening-us-schools/84508438/
[v] Gary Orfield and Erica Frankenburg, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, THE CIVIL RIGHTS PROJECT 10 (May 15, 2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf
[vi] Frequently Asked Questions About Public, Charter Schools, UNCOMMON SCHOOLS, http://www.uncommonschools.org/our-approach/faq-what-is-charter-school
[vii] What is a Charter School?, NATIONAL CHARTER SCHOOL RESOURCE CENTER, https://www.charterschoolcenter.org/what-is-a-charter-school
[viii] Id.
[ix] Valerie Strauss, Obama’s real education legacy: Common Core, testing, charter schools, THE WASHINGTON POST (October 21, 2016), https://www.washingtonpost.com/news/answer-sheet/wp/2016/10/21/obamas-real-education-legacy-common-core-testing-charter-schools/?utm_term=.9624133c24f8
[x] Joe Savrock, Frankenburg Research Shows Segregation in Charter Schools, PENNSYLVANIA STATE COLLEGE OF EDUCATION NEWSLETTER (February 2011), https://ed.psu.edu/news/releases-jan-mar-2011/frankenberg-charter-research
[xi] Id.
[xii] Id.
[xiii] Statement Regarding the NAACP’S Resolution on a Moratorium on Charter Schools, NAACP (October 15, 2016), http://www.naacp.org/latest/statement-regarding-naacps-resolution-moratorium-charter-schools/
[xiv] Jeff Guo, White parents in North Carolina are using charter schools to secede from the education system, THE WASHINGTON POST (April 15, 2015), https://www.washingtonpost.com/blogs/govbeat/wp/2015/04/15/white-parents-in-north-carolina-are-using-charter-schools-to-secede-from-the-education-system/?utm_term=.30accd366f48
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Lauren Camera, OIG Report: Charter Schools Pose Risk to Education Department Goals, U.S. NEWS (October 5, 2016), http://www.usnews.com/news/articles/2016-10-05/oig-report-charter-schools-pose-risk-to-education-department-goals
[xix] Gary Orfield and Erica Frankenburg, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, THE CIVIL RIGHTS PROJECT 14, footnote 54 (May 15, 2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf
[xx] Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 495 (1954)
Law Journal for Social Justice 