menu

Arkansas Law Review
School of Law
Waterman Hall 107
Fayetteville, AR 72701

Email: lawrev@gmail.com

Phone: (479) 575-5610



School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

Law School Directory

Facebook Twitter Linkedin Youtube

How to Fulfill a Broken Promise: Revisiting and Reaffirming the Importance of Desegregated Equal Educational Access and Opportunity

How to Fulfill a Broken Promise: Revisiting and Reaffirming the Importance of Desegregated Equal Educational Access and Opportunity

Regina Ramsey James*

[W]e have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

Justice Stephen G. Breyer[1]

I. Introduction

Subsequent to President Abraham Lincoln’s order and declaration that the slaves were free,[2] Congress passed, and the states ratified, the Thirteenth Amendment to the United States Constitution, which did just that.[3] Thereafter, in order to endow the newly freed slaves with the rights of citizenship, the Fourteenth Amendment to the United States Constitution was passed and ratified, guaranteeing all citizens the equal protection ***160***of the laws.[4] During the Civil Rights Era, and with the advent of Brown v. Board of Education,[5] it was recognized that in order to be truly “equal,” members of ethnic minorities must be integrated into aspects of society from which they had historically been excluded. This integration necessarily included the fields of employment and education. Realizing that such drastic changes could not occur without some catalyst, various change agents were adopted to foster integration. Lawmakers implemented affirmative action programs and policies, which often used race as a deciding factor for inclusion. Under such plans, one’s status as a member of an ethnic minority group historically subjected to disparate treatment gave an applicant, whether worker or student, special consideration for a desired slot.

After years of dismantling by the United States court system, affirmative action programs, for the most part, are now defunct.[6] Viewed as reverse discrimination, these programs are now considered just as egregious as the old “separate but equal” laws and policies of Jim Crow.[7] But looking at the economic and social chasms that still exist between whites and ethnic minorities, one might find herself pondering whether our country made false promises to many of its citizens. After all, we were promised in the Fourteenth Amendment that no state could “deny to any person within its jurisdiction the equal protection of the laws.”[8] And then—albeit almost a century later—our children were guaranteed an opportunity for an education “equal” to that of all other children in this country.[9]

***161***While I may be idealistic, I am certainly not naïve. It might not be advisable to expect that a promise of equality would be fulfilled. After all, we live in a nation that first declared its independence with such noble statements as “all men are created equal,” and “that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”[10] and yet identified black men and women as the property of their southern “owners” and as merely “three fifths of all other Persons.”[11]

However, after the United States Supreme Court ruled in Brown that “segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive[d] the children of the minority group of equal educational opportunities,”[12] we were given reason to believe that our children would have equal access and a meaningful opportunity to a quality education. Particularly after the Court instructed schools to “make a prompt and reasonable start toward full compliance with [its] May 17, 1954, ruling” and directed lower courts to issue whatever orders were “necessary and proper” to admit minorities to white schools “with all deliberate speed,”[13] one could have begun to believe that the playing field might be leveling ever so slightly. Might our country finally be willing to make good on some of its promises?

If the Court’s rulings were not enough to give us hope, then certainly the passage of the Civil Rights Act of 1964[14] was a glimmer of light in an otherwise dark and dismal void. Likewise, with the enactment of Title 42, Section 1981 of the United States Code, we were not only guaranteed equal opportunity, but would now be armed with the same tools as white citizens of “the full and equal benefit of all laws and proceedings for the security of persons and property.”[15]

Progress—although slow and sometimes not quite steady—could nonetheless be observed. With much hard work, often requiring federal intervention from both the judicial and ***162***executive branches, doors of opportunity slowly began to open. Equality appeared to finally be a realistic possibility.

But, as the playing field appeared to level, the rules of the game changed. Under government-initiated affirmative action programs, racial classifications designed to remedy past discrimination were considered benign when compared to invidious discriminatory practices designed to exclude an entire race or ethnic group.[16] In other words, when racial classifications were established for the purpose of providing ethnic minorities with a chance to have a fair opportunity to compete, such classifications were not consistently examined under strict scrutiny and were generally upheld as important governmental interests because of the unique purpose driving their implementation.[17] Today, however, all racial classifications are suspect in the eyes of the court system.[18] The Court’s controlling majority no longer views any racial classification—regardless of its remedial nature or intent—as “benign.”[19] Instead, the classification must be narrowly tailored to further a compelling government interest.[20] And racial equality does not seem to meet the definition of “compelling” anymore.

***163***Yet more than sixty years after America’s children were promised an equal educational opportunity in Brown, this country is mired in an education crisis.[21] Every nine seconds, a child drops out of high school.[22] Nearly one-third of all public school students—and close to half of African American, Hispanic, and Native American students—fail to graduate with their class.[23] While these startling statistics impact individuals from all aspects of our society, the poor and ethnic minorities have a significantly higher dropout rate than individuals from other demographics.[24] The graduation rate for whites is approximately 75%; however, graduation rates for African Americans, Hispanics, and Native Americans hover around 50%.[25] Furthermore, according to the National Center for Education Statistics, “[i]n 2000, young adults living in families with incomes in the lowest 20 percent of all family incomes were six times as likely as their peers from families in the top 20 percent of the income distribution to drop out of high school.”[26]

How can these statistics occur in a nation that has accepted the responsibility for educating its children,[27] mandated that all ***164***school-aged children enroll in school,[28] and promised that these children will be given the opportunity for an equal education?[29] This article examines the persistent and pervasive problem of unequal educational opportunities in the United States public education system and discusses possible approaches to level the playing field of opportunity for children, particularly minorities and the impoverished. Part II of this article reviews the jurisprudence that created the expectation of educational opportunity. Part II also examines how recent decisions by courts have hindered this important goal.

Part III specifically discusses how charter schools are now used as a method of addressing the shortcomings in public education. Part III also presents arguments for and against these alternatives to traditional public education. This article concludes that not only do these alternatives fail to solve the problems of the widening achievement gap and continuing segregation, they ultimately undermine traditional public education. Instead of sidestepping the real problems, education should be recognized as a fundamental right or, at the very least, treated as such as such in the states that compel education and promise educational access to their children. Elevation to fundamental right status would then require a change in the funding structure for public schools. A reformed funding structure would halt the diversion of funds and resources from traditional public schools, ensuring that all traditional schools are adequately funded. Furthermore, all schools, regardless of whether they are fighting de jure or de facto segregation, should be allowed to adopt race-conscious admissions policies to actively integrate, ensuring students are educated in diverse environments that mirror their communities as a whole.

To introduce the education as a fundamental right discussion, Part II addresses diversity concerns and resegregation against the backdrop of the United States Supreme ***165***Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1.[30] This discussion analyzes the impact of this decision on Brown and Brown II and the decision’s possible long-term impact on the nation as a whole, with particular emphasis on the racially and economically disadvantaged members of our society. However, Part III reasons that the meaningful educational access and opportunity argument, which is often erroneously couched in an equal protection analysis, should instead focus on education as a fundamental right. In light of Parents Involved, this article outlines suggested measures based on Grutter v. Bollinger[31] for remedial race-conscious admissions policies aimed at realizing the promised equal opportunity to a quality education. These alternatives, posited with the hope that the implementation of new initiatives, together with the expansion of existing successful policies and programs, will thwart the flood of broken promises.

II. Historical Backdrop: the Origins of the Expectation of Equality

A. Stalled Attempts to Make Good on the Promise: The Fourteenth Amendment and Its Progeny

After the Civil War, lawmakers took definitive measures to eradicate slavery and the vestiges thereof. The Thirteenth Amendment, ratified in 1865, abolished slavery within the United States.[32] Then, in 1868, the Fourteenth Amendment was ratified, conferring citizenship, both national and state, to former slaves and promising them the protections and liberties attributable to such citizenship.[33] Shortly thereafter, in Plessy v. Ferguson,[34] the United States Supreme Court dealt a devastating blow to the progress made toward equal access, accommodation, and opportunity for more than half a century. The Plessy decision upheld a Louisiana statute that required “equal but separate” accommodations for whites and colored races on ***166***passenger trains.[35] The Court, comparing the statute to the acts of Congress segregating the public schools of the District of Columbia, opined that Louisiana, with her particularized knowledge of her citizens “established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order,” could reasonably and within its discretion pass such legislation.[36]

In his dissent, Justice Harlan recognized the relationship between the enforcement of the rights guaranteed under the Fourteenth Amendment and the achievement of the goals and objectives of the Thirteenth Amendment.[37] The Thirteenth Amendment not only abolished slavery, it also sought to “prevent[] the imposition of any burdens or disabilities that constitute badges of slavery or servitude.”[38] Unfortunately, local and state governments, particularly in the South, resisted effectuating the purposes of the Thirteenth and Fourteenth Amendments by passing laws that clearly discriminated against African Americans.[39] Furthermore, emboldened by government-sanctioned discrimination, individuals harassed, tortured, and even murdered “agitators” who struggled against post-slavery oppression.[40]

B. Brown v. Board of Education: The Promise of Equal Educational Opportunity

The post-Plessy era viciously and maliciously demonstrated the unequal nature of the concept of “separate.” In the educational arena, facilities were certainly not equal, educational resources such as textbooks and curricula were not equal, and ***167***teacher training and compensation were not equal.[41] While the struggle for equality involved all aspects of life, unequal educational access and opportunity was a challenge tackled by civil rights leaders in the court system.[42]

Brown was the result of years of strategic planning by the NAACP, Charles Hamilton Houston, and Thurgood Marshall.[43] Numerous cases were filed and litigated on collateral issues, testing the climate and tenor of the judicial system and its readiness to abolish Jim Crow laws and their oppressive dominance in the lives of African Americans throughout the country.[44] These cases set the stage—and established the precedent—for the Court’s reliance on necessary and fundamental principles associated with the educational experience. Brown itself was in fact a consolidation of several different cases from several different school systems, all of which involved state laws that either “permitted” or “required” separate pedagogical institutions for white and black students.[45] While the test cases may have avoided the fundamental issue, the question squarely before the Court in Brown centered on whether segregation and the “separate but equal” doctrine deprived the plaintiffs of the equal protection of the laws guaranteed by the Fourteenth Amendment.[46] According to the plaintiffs, “separate” was not, nor could it ever be, “equal.”[47]

Recognizing education as one of “the most important function[s] of state and local governments” and “the very foundation of good citizenship,” the Court determined that racial segregation deprived black children of an equal educational opportunity.[48] The Court reasoned that, irrespective of whether ***168***curricula and resources are the same, certain intangibles, such as the “ability to study, [and] to engage in discussions and exchange views with other students,” were innate components of the educational experience.[49] Moreover, the Court observed segregation engendered feelings of inferiority in black students and deterred their academic and mental development.[50] Holding that “[s]eparate educational facilities are inherently unequal,” the unanimous Court concluded that segregated schools deprived the plaintiffs of the equal protection guaranteed by the Fourteenth Amendment.[51]

If overturning decades of government-sanctioned discrimination was difficult, “fashioning and effectuating” the remedy—actual desegregation—proved to be a far more arduous task. Unfortunately, the Court decided in Brown II to leave this task to the lower courts in the various southern states.[52] The very same oppressors that had sanctioned and enforced Jim Crow laws for decades were now instructed to “take such proceedings and enter such orders and decrees . . . necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed.”[53] Not surprisingly, the lower courts wasted no time pointing out what Brown II did not mandate. According to some lower courts, the Constitution and the Brown decisions did not require integration.[54] These courts took the alternative view—although government enforcement of discriminatory laws was prohibited, nothing restricted segregation caused by the voluntary actions of individuals.[55]

Recognizing that the Fourteenth Amendment applied only to government-sanctioned segregation, private individuals and entities found inroads around constitutional compliance.[56] So ***169***long as actions were merely de facto discrimination without a de jure badge, discriminatory practices were acceptable.[57] Furthermore, several states continued to circumvent segregation.[58] Absent proactive intervention by the federal government, discriminatory practices continued to adversely impact the lives of African Americans who labored under the illicit—albeit ever-present—stigma associated with their status as descendants of American slaves.[59]

C. Federal Government Intervention: The Civil Rights Act of 1964

The 1950s and 1960s marked the beginning of the crescendo. Mounting tensions and overdue impatience with the pace of “all deliberate speed” took people to the streets.[60] While the executive and legislative branches of our federal government struggled to fulfill a long-overdue promise, an equally, if not more, pressing factor was the battle of everyday individuals who were led by great leaders and organizations and fueled by the necessity of escaping the suffocating and oppressive chains of discrimination.[61]

The 1950s saw landmark changes in the quest for progress. A boldness, nay defiance, by individuals united in their cause built momentum with each milestone. For example, the brave refusal of Rosa Parks to give up her seat to a white man on a city bus marked the beginning of the Montgomery, Alabama bus ***170***boycott, during which thousands of African Americans walked to work in protest of segregation on public transportation.[62] The silent defiance of many lesser-known individuals was a catalyst that sparked civil disobedience on a grand, undeniable scale. Led by a new kind of leader, Dr. Martin Luther King, Jr., who preached nonviolence and civil disobedience, African Americans shined an almost blinding and embarrassing light on the hypocrisy of America.[63]

Around this time, Congress passed the Civil Rights Act of 1957, which sought to prevent interference with an individual’s right to vote in a state or federal election.[64] Seemingly without force in effect, this legislation may have contributed to the election of John F. Kennedy as President in 1960, who “won the presidency, but by a mere 118,500 votes. . . . taking 68 percent of the black vote.”[65]

Protests of the people welcomed in the 1960s, and courts and other institutions began to recognize that definitive measures would ensure the unrealized promises of equal opportunities materialized.[66] The newly elected Kennedy, who took office on January 20, 1961, continued his advocacy for civil rights that had begun in the United States Senate and submitted his proposed civil rights legislation to Congress in 1963.[67] Although met with much opposition, particularly from southern legislators, strong forces of change propelled the legislation through Congress.[68]

***171***Although a new beginning of sorts, the July 2, 1964 signing of the Civil Rights Act by President Lyndon B. Johnson, represented the culmination of a long battle waged, not only in Washington, but also in the deep South—the heart of segregation.[69] With the Civil Rights Act came laws and policies that allowed affirmative measures to be taken toward allowing blacks access and opportunity in areas previously closed off to them. Yet all stakeholders understood that additional government intervention would be required before integration could be achieved.[70] Unlike the post-Civil War civil rights legislation that was essentially nullified by the United States Supreme Court, the Civil Rights Act of 1964 was passed during a time in which the winds of change were gaining strong force.[71] In addition to the legislation, new government policies and educational programs designed to give preference to members of groups victimized by racial discrimination were implemented to remedy the injustices created by hundreds of years of oppression.[72] Moreover, decisions by the high Court demanded that school districts transition to unitary, racially nondiscriminatory systems,[73] and lower courts issued orders and decrees that effectively implemented the transition,[74] both of which blazed the trail toward equal access and opportunity.

D. Steps in the Wrong Direction: Key Cases that Broke the Promises of Brown

***172***In short order, affirmative action proved itself limited in effect. Labeled by opponents as impermissible reverse discrimination, affirmative action programs crumbled under a new Court’s scrutiny.[75] Today, affirmative action seems to have faded to a mere memory, and recent decisions of the Court definitively evidence its demise.[76] In the area of education, the Court’s shift toward a rule of law under which all discrimination is suspect—even through programs designed to remedy hundreds of years of oppression against an entire race of people—has hampered the progress made post-Brown.[77] Thus, upon the expiration of court-ordered desegregation plans, traditional public education continues to be unequal, largely due to the de facto segregation school systems cannot legally combat without a court order.[78]

The decision in Parents Involved signaled that race-based affirmative action programs will no longer be a constitutionally permissible means of achieving meaningful equal educational opportunity and access. In a 5-4 decision, the United States Supreme Court invalidated two school admissions policies that considered a potential student’s race as violations of the Equal Protection Clause.[79] Parents Involved was the Court’s first attempt post-Brown to address the issue of the guarantees and requirements of the Equal Protection Clause in the context of primary and secondary education. While the decision did not ***173***overrule Brown, the Court disloyally mischaracterized the landmark decision[80] and chose to blindly ignore its historical context and the decades of subsequent remedial actions it necessitated. Today, the ruling in Parents Involved represents a direct affront to Brown’s promise of a meaningful opportunity and access to an equal education.

In Parents Involved, the plaintiffs challenged the plans of two school districts, one in Seattle, Washington, the other in Jefferson County, Kentucky, because the plans considered race, among other factors, to determine school assignments.[81] Under its plan, the Seattle district allowed each rising ninth-grade student to choose from among the district’s ten high schools, ranking them in the order of the student’s preference.[82] If too many students selected the same school as their first choice, the district used several factors to determine how the available slots would be filled.[83] The factors included: (1) whether the student had siblings attending the particular school; (2) racial considerations such as the racial composition of the school, the race of the student, and whether the student would “bring the school into [racial] balance”; and (3) the geographic proximity of the school to the student’s residence.[84]

The Jefferson County district, which had operated under a desegregation order prior to 2000, implemented the challenged admissions policy after it obtained unitary status.[85] This plan required “schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent.”[86] Ostensibly, this requirement would create a racial balance at the schools based on the racial composition of the school district as a whole. According to the Court, both school districts failed to carry the heavy burden of showing the interest they sought to achieve—“educating [their] students in a racially integrated ***174***environment”[87]—justified the selected means—the consideration of a student’s race, among other factors, in making school assignments.[88]

Using the strict scrutiny standard, Chief Justice Roberts, writing for a majority which also included Justices Scalia, Thomas, Alito, and Kennedy, determined that the Seattle district’s admissions policy was unconstitutional.[89] Although the Chief Justice recognized remediation of past intentional discrimination as a compelling interest under a strict scrutiny standard, that interest was not at issue in the case because the Seattle district had never engaged in segregation by law, nor had the district ever operated subject to a court-ordered desegregation plan.[90] Similarly, the Chief Justice concluded the Jefferson County plan was impermissible because the desegregation order under which the school district had operated was no longer in place when the district adopted the race-conscious plan in 2001.[91]

Although the majority found no problem with de facto segregation caused by choices unrelated to de jure segregation, there remains reason for cautious optimism. Why? First, the four dissenting Justices—Breyer, Ginsburg, Souter, and Stevens—understood that segregation, de jure or otherwise, was the problem. Justice Breyer eloquently observed the Chief Justice’s “inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise.”[92] He powerfully noted that the decision:

[D]istorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and ***175***secondary education that local communities have sought to make a reality.[93]

As Justice Stevens pointed out, the other five Justices completely ignored the context of Brown, despite the fact that Chief Justice Roberts cited the case in his opinion. For in 1955, “it was only black schoolchildren who were . . . ordered [to attend segregated schools]; indeed, the history books do not tell stories of white children struggling to attend black schools.”[94] He also believed that “a decision to exclude a member of a minority because of his race [was] fundamentally different from a decision to include a member of a minority for that reason.”[95]

Given a slightly different case, one in which race is one of several different factors, Justice Kennedy’s vote might possibly swing in the other direction. He seemed to recognize that the plurality—with whom he concurred in result but not in reasoning—was not true to “the history, meaning, and reach of the Equal Protection Clause.”[96] He appeared to understand that, in practice, race matters.[97] He also seemed willing to recognize the asserted interest as compelling.[98] However, he took issue with the means employed to further that interest on the facts. While Justice Kennedy rejected the measures employed by the Seattle and Jefferson County districts, he acknowledged, citing Grutter v. Bollinger,[99] that “it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its ***176***racial composition.”[100] He also seemed to be willing to accept a racial classification as a “last resort” in the event alternative measures failed.[101] Finally, Justice Kennedy appeared to instruct school districts to borrow a page from Grutter and create some admissions rubric that includes race as one of several factors, such as a student’s special talents and needs of the school.[102]

Although education is best analyzed as a fundamental right, the dissent argued that segregation persists and noted remedial measures were warranted regardless of whether the segregation was de jure or de facto.[103] Furthermore, while courts and commentators frequently use the words socioeconomically disadvantaged instead of racial discrimination, the fact remains that ethnic minorities in this country still do not have equal opportunity and access.[104] The subtle intricacies required to successfully maneuver the present education system—such as “high-stakes” testing and declarations of unitary status—have rendered our education system an exploding minefield with a mushrooming dropout rate, which has a far more detrimental impact on the poor and minority communities than the rest of ***177***America. Nevertheless, the current reality promises to have a long-range impact on society as a whole.

III. A Call to Revisit Brown’s Promises and Suggested Improvements

A. Resources Must Not Be Redirected to Charter Schools and Other Alternative “Public Schools”

While the United States Supreme Court has refused to give education its rightful status as a “fundamental right,”[105] some states have recognized that, regardless of whether they acknowledge education as a fundamental right, our entire society is jeopardized if we fail to educate our youth. Instead of becoming productive contributors to our nation’s success, uneducated children become a drain on society.[106] The observation about states and education is based first on explicit language in various state constitutions acknowledging the importance of education to our society.[107] Furthermore, regardless of whether states are willing to articulate a clearly ***178***defined “quality” of the education to be provided, one must logically conclude that expressly promising an education necessarily implies that this education must have some real qualitative value. For example, Connecticut courts have recognized the “qualitative” dictate of the state’s constitution. There, all children have a fundamental right to a meaningful educational experience.[108] A similar conclusion may apply across the country. This belief is based on the observation that states currently seem to be making efforts toward fixing the problem of underfunded, inadequately resourced, and misguided public education. States are now using alternatives, such as charter schools, to combat the crisis.[109] However, taking an inroad around the issue, as opposed to attacking it head on, will not solve the problem. Dividing a fractured community by rationing limited resources cannot be the solution. While some may benefit, the majority of our at-risk youth will remain left behind.

For several reasons, using charter schools as a substitute to public education is not the answer. By design, charter schools are not intended to replace or supplant traditional public education.[110] Thus, they cannot succeed where traditional public schools have failed. Dividing limited resources between struggling public schools and charter schools diverts funds from ***179***programs that could succeed if properly funded and supported from the outset. Furthermore, many charter schools not only squander public funds, but also abuse and misuse them.[111] These schools contribute to the plight of resegregation in our public education system, thereby defeating Brown’s primary objective. More importantly, these schools fail to close the achievement gap in any meaningful way.[112]

Charters are designed to be laboratory-type schools at which educational reform is initiated and sustained.[113] These charter schools are given more freedom to develop innovative curricula to accommodate flexible and adaptable educational environments.[114] In turn, supporters believed the effective innovations developed by the charter model would carry over to traditional public schools.[115]

Since Minnesota passed the first charter school laws in 1991, charters have expanded dramatically, and forty-three states and the District of Columbia have since followed suit.[116] Such rapid, unexpected expansion has yielded a so-called alternative to traditional public education that is not living up to expectations for many of the same reasons that traditional public education has not met its goals.[117] Moreover, given the freedom ***180***and flexibility granted to charter school programs, charters are essentially divisive measures of deflecting the focus without solving the problem.

Admittedly, numerous charter schools have a positive impact on the lives and futures of thousands of American schoolchildren who arguably would not have received these benefits had they remained in traditional public schools.[118] However, these marginal benefits do not justify siphoning taxpayer dollars away from traditional public education when the better approach is to restructure traditional public education. This approach is further solidified when one considers just some of the major drawbacks of charter schools as an alternative method of educating our children.

1. Many Charter School Programs Are Riddled with Waste, Fraud, and Abuse of Public Funds

In 2010, the Office of the Inspector General’s report to Congress revealed enormous abuse and misuse of federal dollars by administrators at charter schools, which prompted investigations, resulted in convictions, and caused millions of dollars to be lost that could have served traditional public school students.[119] The aforementioned freedom and flexibility ***181***translates into minimal oversight of these charter schools.[120] This allows opportunistic individuals—concerned more about profiting at the expense of taxpayers than about educating children—to use charters to defraud the system by inflating admissions and enrollment numbers.[121] Even worse, many less-than-honest individuals have used federal and state dollars earmarked for the education of our children to obtain personal gain and profit through misuse, fraud, and even theft.[122] And even when charter schools make financial “errors” that may have no illegal or malicious intent, millions of dollars that could ***182***have helped to improve traditional public education are essentially wasted.[123]

2. Charter Schools Are Not (Significantly) Closing the Educational Gap

Because charter schools are a relatively recent educational phenomenon, empirical data that is reliable, scientifically valid, and yields consistent results is sparse. Evident from the studies that are available, however, is the fact that charter schools—which siphon away valuable resources from traditional public schools and operate with far less oversight and accountability—fail to close the achievement gaps any better than traditional public schools.[124] While charter schools in some states show higher achievement rates than traditional public schools, these higher achievement rates are minimal at best.[125] Furthermore, recent reports and research from many jurisdictions showed traditional public school students outperformed their charter school counterparts in essential areas of assessment such as math.[126] And, for some students, achievement levels actually dropped after leaving traditional public schools to attend charter schools.[127]

Just as with traditional public schools, some charter schools successfully accomplish their desired goal of educating our children, but others do not. However, the stark contrast between traditional public school governance, administration, and accountability and the wide discretion and latitude given to charter schools makes it unacceptable and inexcusable to continue to divert funds away from traditional public education. The better approach would be to find successful models of both ***183***traditional public schools and charters and then adequately and equitably fund traditional public schools based on these model schools. Doing so promises to foster optimal learning environments for all students, regardless of their ability to secure charter school admission.

3. Charter Schools Undermine Brown’s Promise of Desegregation

Studies from a number of different states have shown that charter schools often lead to increased school segregation.[128] In many cases, school choice programs, while seemingly noble in their goal of allowing parents to make what they believe are the best educational choices for their children, only “exacerbate current school segregation and, in more heterogeneous settings, lead to the stratification of students who were previously in integrated environments.”[129]

Additionally, “[c]ertain design features magnify the risk of segregation.”[130] For example, many charter schools target specific racial or ethnic groups and therefore lead directly to increased segregation.[131] Furthermore:

Increased segregation is also a predictable outcome for programs that select students based on their achievement levels because of the high correlation between socioeconomic status (SES) and achievement, compounded by the fact that low-SES students are often less likely to be referred to selective programs even when their achievement levels are high.[132]

Even in lottery systems, charter schools increase the likelihood of segregation.[133] These systems often “limit the services they provide, thereby excluding certain students, or ***184***offer programs that appeal only to a limited group of families.”[134] Some charters “also exclude students from consideration because their parents can’t meet the demanding parent involvement requirements, or they expel students who haven’t met the school’s academic or behavioral requirements.”[135] Additionally, “[c]harter schools also choose where to locate which, in turn, influences enrollment options given the transportation difficulties for low-income students.”[136]

B. Diversity: An Essential Component of the Educational Experience

Once we move away from the trend of dividing a “finite financial pie” among different educational alternatives, such as charter schools, we must then fairly and adequately fund traditional public education. Thus, we must abandon the idea that education is a question of equal protection and instead recognize it as a fundamental right protected by the substantive due process guarantees of the Fourteenth Amendment.[137] The United States Supreme Court has not yet reached the point of giving education fundamental right status. However, the battle must continue, and we must use the states that have recognized education as fundamental as models. These states, through their state constitutions and subsequent judicial interpretation, require education funding structures that provide adequate and equitable funding to all schools in traditional public education systems.[138] Traditional public schools must be fairly and adequately funded to provide all students with a meaningful opportunity for a high-quality education. To accomplish these goals, the following ***185***steps must become essential benchmarks in the progress toward a quality public education for all.

1. Adequately Fund All Public Schools and Auxiliary Programs

While the underlying premise of the federal No Child Left Behind Act (NCLB)—“to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments”[139]—is admirable, various components and provisions of NCLB ensure that the designated benchmarks and ultimate goals will not be attained. Specifically, NCLB establishes very loosely defined criteria for schools to define “[c]hallenging academic standards,”[140] supposedly aimed at closing the “achievement gap.” NCLB, however, places too much emphasis on students’ performance on standardized tests in math, reading or language arts, and science[141] and not enough on overall teaching and learning.[142] Moreover, NCLB penalizes schools that fail to meet “adequate yearly progress,”[143] which undermines the Act’s own purported objectives.[144] Finally, NCLB established a relatively short and unrealistic time period—not later than twelve years after the end of the 2001-02 school year—during which all students were to meet or exceed academic proficiency.[145] As commentators have suggested, this timeline is objectively unachievable.[146]

***186***Furthermore, “[s]chool systems across the country have articulated the need for changes to the NCLB Act.”[147] In fact:

NCLB needs to be amended to “shift its emphasis” from applying sanctions “for failing to raise test scores to holding states and localities accountable for making the systemic changes that improve student achievement.” By contrast, retaining NCLB’s existing sanctions approach would needlessly engender ever-increasing numbers of “failing” schools and seriously risk undermining the country’s support for public education.[148]

On the other hand, “[i]nstead of penalizing struggling schools with disincentives, . . . federal funding, particularly in schools that need improvement, should be increased so that effective administration by the schools in attempts at compliance with the NCLB Act is not undermined by the added responsibilities associated with school systems’ accountability requirements.”[149] Rather than improving the quality of public education, NCLB has led to a myriad of school closures and attempts to replace traditional public education through alternative programs such as vouchers and charter schools. However, to use a clichéd phrase, “dividing the finite pie” is not the answer. Instead, NCLB must be directed away from a standardized test-based “kill and drill” model of education and toward a model that focuses on truly educating our children. We must focus on educating students who can think critically and solve real-world problems—higher-order learning—instead of how to guess the answer to a multiple-choice question.

Voters must demand revised legislation from lawmakers at the federal and state levels. Irrespective of party affiliation, legislators must work across the aisle and remove NCLB’s arbitrary and unattainable objectives—such as 100% proficiency by 2014—and replace them with goals and guidelines for actually educating our nation’s children through the traditional public education system.

2. Make School Assignments in a Manner That Combats Resegregation

a. Make School Assignments Based on Family Income

***187***While this article vehemently disagrees with the conclusions reached in Justice Kennedy’s concurring opinion in Parents Involved, his opinion contains some helpful guidance with respect to alternative methods by which admissions policies may consider race.[150] For example, Justice Kennedy suggested selection based on factors such as “strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.”[151] Of more particular import is his suggestion that school districts adopt a Grutter diversity-driven policy that not only includes the aforementioned considerations, but also evaluates individual school needs and student characteristics that might include race as a “last resort.”[152]

However, the problem with attempting to employ a Grutter-like plan in primary and secondary education admissions is immediately evident, as observed by Justice Kennedy himself.[153] Kindergarteners, and even middle and high school students, do not generally possess the “pertinent elements of diversity” of college and law students due to the limited experiences associated with their youth.[154] Yet the diversity objectives seem quite compelling, particularly in the case of kindergarteners, given the opportunity and potential for even greater cross-racial enlightenment and understanding for children not yet exposed to the biases and stereotypes indoctrinated in the minds of many college-aged individuals.

***188***With a success-driven objective of withstanding the scrutiny of a majority of Justices on the sharply divided Court in mind, admissions programs should consider the suggestions of Justice Kennedy. Schools should design policies that use race as one of several factors—such as special needs and talents, socioeconomic status, and reading proficiency levels—to assign students to schools. Districts should model these policies based on the plan endorsed by the Court in Grutter. It stands to reason that diversity is as relevant, if not more significant, to the pedagogical goals of our primary and secondary schools as it is in our institutions of higher learning. If we are to ever truly break down the cultural barriers that continue to pervade our society—such as racism—the best forum to begin demolishing these barriers is in the minds of our nation’s youth during their most formative and impressionable years.

Rather than merely attempting to attain diversity, an objective recognized as compelling in higher education but not in primary and secondary education, specific pedagogical goals must be established. As a required component of establishing this objective, schools should begin by considering the well-established premise of Brown—that segregation deprives children of an equal education.[155] Schools should then utilize empirical data that demonstrates factors that adversely impact millions of schoolchildren across the country, such as housing “choices” and household incomes. This data should include specific reports that prove the existence of resegregation and demonstrate the negative impacts of resegregation on student achievement. For example, statistics published in 2007 revealed:

In 2003, 73 percent of African-American students attended a predominantly minority school, and 38 percent of African Americans attended a school that is over 90 percent minority (in 1991, those numbers were 66 percent and 34 percent). In 2005, 71 percent of African-American students attended a predominantly minority school, whereas only 11 percent of white students did. This racial segregation is tied to increasing poverty—in 1996, the average African-American student attended a school where at least 43 percent of its students were poor. In 2002, that number increased to 49 percent. Nationwide, 48 percent of ***189***African-American students attend schools where over 75 percent of the students are eligible for free or reduced price lunch, and 72 percent attend schools where over 51 percent of the students are eligible. Segregation negatively impacts student achievement. One recent study shows that African-American students in Florida who attend segregated schools perform lower on state tests than African-American students in non-segregated schools, even after controlling for teacher quality, class size, and poverty levels.[156]

However, identifying a specific local impact may prove challenging. Courts no longer accept general information regarding the overall societal impacts to prove the requisite compelling interest.[157] Today, the necessary objective should be supported with district-specific data that demonstrates the necessity of including race as a factor during the admissions process. However, race must not be the deciding factor.

A less odious classification upon which to base school assignment is family income or economic status. Creating admissions policies that set limits on the number or percentage of students eligible for reduced or free lunch,[158] or based on family income levels is a possible solution that could be easily supported by empirical data. Such a policy should withstand judicial review under the relaxed rational basis standard because these classifications do not involve a suspect class.[159] Under a rational basis analysis, schools need only show that the classification bears a rational relationship to a legitimate governmental interest.[160] In other words, schools must show some legitimate state interest, such as providing disadvantaged ***190***students with the same access and opportunity to a quality education as their more affluent counterparts.[161] Ensuring that these disadvantaged students attend schools with a fair population of both poor and affluent children advances the stated objective of providing a high-quality education to all.

Moreover, directing the “meaningful educational opportunity” arguments away from a flawed premise based on equal protection, and toward a more true and honest premise based on the notion that education is a fundamental right, elevates the level of scrutiny under which courts will scrutinize state educational plans. Under the more stringent “strict scrutiny” standard, school assignment plans designed to combat segregation would most assuredly pass constitutional muster. The United States Supreme Court has already ruled that diversity in an educational environment is a compelling governmental interest.[162] Certainly, elementary school-aged children must learn to live and thrive in a diverse society as much as, if not more than, those attending institutions of higher education. Although the “narrowly tailored” prong of the analysis is not automatic, certainly a program that assigns students to schools in a carefully crafted system designed to create a diverse student body should withstand constitutional scrutiny by virtue of stare decisis.[163]

Conscientious policymakers should expect, however, constitutional challenges to income-sensitive admissions policies under the Fourteenth Amendment’s Due Process Clause. After all, the Court has long recognized the right to “establish a home and bring up children” free from interference by arbitrary and unreasonable governmental action.[164] ***191***However, because of a state’s obligation and responsibility for educating its citizens, it may impose reasonable regulations necessary to further its educational objectives.[165] The United States Supreme Court has held that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.”[166] For example, “[a]cting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.”[167]

If critics argue that a classification tied to economic status is problematic because it concerns education and interferes with a fundamental right, such as a parent’s decision-making authority over his or her child’s education,[168] school systems should have no fear of their admissions policies meeting the same fate as those at issue in Parents Involved. The parental choice and decision-making issue is not impinged by the proposed school assignment method. Moreover, if the Court were to deem this type of classification to be one which affects a fundamental right, schools should have little or no difficulty passing strict scrutiny.[169] The admissions policy neither reaches beyond the scope of the state’s authority nor crosses beyond the boundary of the state’s power.[170] The compelling interest is that of alleviating the vast disparities between schools attended by poor children and schools attended by their more affluent peers. Certainly, if the goal is important enough to be articulated as such in NCLB,[171] courts should have no problem recognizing its compelling nature when presented with evidence documenting the disparities. The government’s own studies, as well as ***192***various independent research, demonstrates the difference in teacher quality, facilities, and other necessary resources.[172] With the increased accountability requirements associated with NCLB,[173] schools are tracking and reporting the progress of students and subgroups, such as minorities and the disadvantaged, in spite of the challenges associated with limited and inadequate resources.[174] Finally, providing economically disadvantaged students with an opportunity to attend quality schools and guaranteeing them space when requested is directly related to achieving the compelling objective of providing all students with a fair, equal and significant opportunity for a high-quality education.

b. Equalize Resources

Ironically, in this country, the children most in need of a quality education—the impoverished and minorities—are those most often shortchanged.[175] As research has indicated, “[a]cross the country, $907 less is spent per student in the highest-poverty districts than in the most affluent districts.”[176] The statistics for minority students are also sobering—“$614 less is spent on students in the districts educating the most students of color as compared to the districts educating the fewest students of color.”[177]

Children that attend schools with unequal and inadequate resources cannot be said to truly have an equal educational opportunity. One of the major reasons these children attend ***193***schools with inadequate resources is tied to the manner in which revenue is generated at the local level to support the public education system. The bulk of school district funding derives from revenue from property taxes assessed in the local community.[178] Generally, schools in high-poverty areas are unable to raise enough money through property taxes to adequately support the local school system.[179] Consequently, schools and children in high-poverty districts suffer. States must utilize their coffers to make up for such shortfalls.

While the federal government issues directives to the states requiring the states to educate our nation’s youth, federal government participation in the provision of essential financial support is marginal at best. For example, 2005 data from the National Center for Education Statistics showed that the federal government contributed about 9% of the funding for local school systems compared to 90.8% from state and local governments.[180] Schools must remain accountable to their constituents, but the federal government must also actively accept this responsibility. Instead of continuously penalizing schools that fail to improve, more federal dollars should be spent on research and the development of plans and programs that have been proven to work. Furthermore, federal support is needed to increase incentive pay for high-quality teachers who are willing to teach in high-poverty or overwhelmingly-minority schools. Federal dollars also must be directed toward increasing the number of high-quality schools, instead of leaving states to shoulder the vast majority of the responsibility. While money may not be the sole answer to resolve the education crisis in this country, it certainly is a component needed to solve the dilemma.

Finally, “bootstrap”[181] advocates be warned. Such a position is fatal to us all. Just as a chain is only as strong as its ***194***weakest link, our communities, our cities, our states, and our country are only as strong as its weakest individuals. In a country such as the United States, which has undertaken a responsibility to offer the opportunity of equal educational access, the citizens of this nation must hold her true to this promise. However, providing all with an equal education entails purposeful action from all corners of society, not just the government. All stakeholders must unite in purpose and effort to guarantee the opportunity for academic success for all children. As long as some children succeed in spite of their circumstances while others succeed because of theirs, it cannot be said that our nation’s system of public education is “available to all on equal terms.”[182]


Notes

* Assistant Professor of Legal Analysis & Writing, Southern University Law Center; J.D., Southern University Law Center. I thank Myesha Harrell, my research assistant and SULC student, for all of the invaluable research she conducted in helping me complete this article. I would also like to thank Professors Shawn D. Vance and Angela A. Allen-Bell for being sounding boards for my various arguments and theories. Finally, I thank my village of friends and family who provided personal support and assistance during a difficult Fall 2014 semester. Their support motivated me to complete this years-long project.

[1]. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 868 (2007) (Breyer, J., dissenting).

[2]. See Abraham Lincoln, President of the U.S., Emancipation Proclamation (Jan. 1, 1863). President Lincoln delivered the Emancipation Proclamation during the United States Civil War, in which the President proclaimed the slaves in the confederate states to be free. Id.

[3]. See U.S. Const. amend. XIII. Section I provides: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.

[4]. See U.S. Const. amend. XIV. Section I provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV,  § 1.

[5]. 347 U.S. 483 (1954); see also Brown v. Bd. of Educ. of Topeka (Brown II), 349 U.S. 294 (1955).

[6]. See Foy Meyer III, The Rise and Fall of Affirmative Action, 8 Tex. Rev. L. & Pol. 437, 505-531 (2004) (discussing the rise and fall of affirmative action programs).

[7]. See id. at 490-92 (criticizing affirmative action on the basis that it may become necessary to implement plans that favor whites to remedy the discriminatory impact of current affirmative action plans).

[8]. U.S. Const. amend. XIV.

[9]. See Brown, 347 U.S. at 495 (“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.”).

[10]. The Declaration of Independence para. 2 (U.S. 1776).

[11]. U.S. Const. art. I, § 2, cl. 3, superseded by U.S. Const. amend. XIV, § 2.

[12]. Brown, 347 U.S. at 493.

[13]. Brown II, 349 U.S. 294, 300-01 (1955).

[14]. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964).

[15]. 42 U.S.C. § 1981 (2012).

[16]. See, e.g., United States v. Paradise, 480 U.S. 149, 166 (1987) (“It is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.”); Local 28 of Sheet Metal Workers’ Int’l Ass’n v. Equal Emp’t Opportunity Comm’n, 478 U.S. 421, 445 (1986) (“[Title VII] does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.”).

[17]. See, e.g., Paradise, 480 U.S. at 166-67 (“But although this Court has consistently held that some elevated level of scrutiny is required when a racial or ethnic distinction is made for remedial purposes, it has yet to reach consensus on the appropriate constitutional analysis. We need not do so in this case, however, because we conclude that the relief ordered survives even strict scrutiny analysis . . . .”); Local 28, 478 U.S. at 480 (“We have consistently recognized that government bodies constitutionally may adopt racial classifications as a remedy for past discrimination. We have not agreed, however, on the proper test to be applied in analyzing the constitutionality of race-conscious remedial measures.”).

[18]. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.”).

[19]. Id. (internal quotation marks omitted).

[20]. Id.

[21]. The term “crisis” is borrowed from the Oprah Winfrey Show’s two-part special report “American Schools in Crisis,” which aired in 2006. The Oprah Winfrey Show: American Schools in Crisis (Harpo Productions, Inc. 2006). For additional reference, see Jason Amos, Oprah’s On!: Oprah Winfrey, Bill and Melinda Gates, and More Than 50 Other Partners Announce National Campaign on High School Dropouts, Alliance for Excellent Educ. (Apr. 18, 2006), http://all4ed.org/articles/oprahs-on-oprah-winfrey-bill-and-melinda-gates-and-more-than-50-other-partners-announce-national-campaign-on-high-school-dropouts/.

[22]. Camilla Lehr et al., Nat’l Ctr. on Secondary Educ. & Transition, Essential Tools: Increasing Rates of School Completion: Moving from Policy and Research to Practice 7 (2004), available at www.ncset.org/publications/ essentialtools/dropout/dropout.pdf.

[23]. John M. Bridgeland et al., Civic Enters., The Silent Epidemic: Perspectives of High School Dropouts, at i (2006), available at https://docs.gatesfoundation.org/Documents/TheSilentEpidemic3-06Final.pdf; see also Marcella R. Dianda, Nat’l Educ. Ass’n, Preventing Future High School Dropouts: An Advocacy and Action Guide for NEA State and Local Affiliates 34-35 (2008), available at http://www.nea.org/assets/docs/HE/dropoutguide1108.pdf (compiling data from 2003 to 2006).

[24]. See Bridgeland et al., supra note 23, at i.

[25]. Id. at 1.

[26]. Phillip Kaufman et al., Nat’l Ctr. for Educ. Statistics, Dropout Rates in the United States: 2000, at 6 (2001), available at http://nces.ed.gov/ pubs2002/2002114.pdf.

[27]. See 20 U.S.C. § 6301 (2012) (“The purpose of this subchapter is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality                     education . . . .”).

[28]. Most states have laws compelling parents to enroll their school-aged children in private, parochial, or public school. See, e.g., Ala. Code § 16-28-12 (2014); Ind. Code Ann. § 20-33-2-28 (West 2014); Iowa Code Ann. § 299.1 (West 2014); Miss. Code Ann. § 37-13-91 (West 2014); Mo. Ann. Stat. § 167.031 (West 2014); 24 Pa. Cons. Stat. Ann. § 13-1327 (West 2014); Tex. Educ. Code Ann. § 25.085 (West 2013); Va. Code Ann. § 22.1-254 (West 2014); Wis. Stat. Ann. § 118.15 (West 2014).

[29]. See Equal Educational Opportunities Act of 1974, Pub. L. No. 93-380, 88 Stat. 514 (1974); see also Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 495 (1954) (seminal case).

[30]. 551 U.S. 701 (2007).

[31]. 539 U.S. 306 (2003).

[32]. See U.S. Const. amend. XIII, § 1.

[33]. See U.S. Const. amend. XIV, § 1.

[34]. 163 U.S. 537 (1896).

[35]. Id. at 550-51.

[36]. Id.

[37]. Id. at 555 (Harlan, J., dissenting) (“These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship.”).

[38]. Id.

[39]. See Pamela W. Carter, From the Historical Perspective, Brown v. Board: 50 Years Later, La. B.J., June-July 2003, at 22, 23; see also Alexander Tsesis, Freedom to Integrate: A Desegregationist Perspective on the Thirteenth Amendment, 38 U. Tol. L. Rev. 791, 808 (2007) (“[T]he South increasingly made Jim Crow the norm for subrogating black rights to participate in everyday life.”).

[40]. Jerrold M. Packard, American Nightmare: The History of Jim Crow 85 (2002).

[41]. See id. at 87.

[42]. See id. at 234 (discussing the efforts of then-lawyer Thurgood Marshall and the NAACP).

[43]. History of Brown v. Board of Education, U.S. Cts., http://www.uscourts.gov/ educational-resources/get-involved/federal-court-activities/brown-board-education-re-enact ment/history.aspx (last visited Jan. 1, 2015).

[44]. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349-52 (1938) (holding Missouri policy of providing African Americans with paid tuition to attend law school in neighboring states violated equal protection principles); see also Pearson v. Murray, 182 A. 590, 594 (Md. 1936) (granting writ of mandamus ordering the University of Maryland Law School to admit African American plaintiff).

[45]. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 486-88 n.1 (1954) (noting the various cases and the rulings of lower courts).

[46]. Id. at 488.

[47]. Id.

[48]. Id. at 493.

[49]. Id.

[50]. Brown, 347 U.S. at 494.

[51]. Id. at 495.

[52]. See Brown II, 349 U.S. 294, 300-01 (1955).

[53]. Id. at 301.

[54]. See Brown v. Bd. of Educ. of Topeka, 139 F. Supp. 468, 470 (D. Kan. 1955) (per curiam) (United States District Court opinion following Brown II); see also Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955) (“If it is a fact, as we understand it is, with respect to the Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the school in the district in which they live.”).

[55]. Brown, 139 F. Supp. at 470; Briggs, 132 F. Supp. at 777.

[56]. Briggs, 132 F. Supp. at 777; see also Kimberly Jenkins Robinson, Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools, 88 N.C. L. Rev. 787, 803 (2010) (describing school choice plans as one such inroad).

[57]. Derek W. Black, The Uncertain Future of School Desegregation and the Importance of Goodwill, Good Sense, and a Misguided Decision, 57 Cath. U. L. Rev. 947, 950 (2008).

[58]. See Packard, supra note 40, at 238. See generally Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education (2004) (describing the first fifty years following the Brown decision).

[59]. See Ogletree, supra note 58, at 25; see also John D. Casais, Ignoring the Harm: The Supreme Court, Stigmatic Injury, and the End of School Desegregation, 14 B.C. Third World L.J. 259, 262 (1994) (explaining the stigma created by notions of racial inferiority).

[60]. See, e.g., Decision in the Streets, PBS Learning Media, http://www.pbslearningmedia.org/resource/iml04.soc.ush.civil.decsts/decision-in-the-street s/ (last visited Jan. 1, 2015) (noting street protests in San Francisco in 1963–64).

[61]. See The American Promise: Voices of a Changing Nation 1945-Present 41-63 (Milton Meltzer ed., 1990) (providing several first-hand accounts of civil rights leaders).

[62]. Rosa Parks & Gregory J. Reed, Quiet Strength: The Faith, the Hope, and the Heart of a Woman Who Changed a Nation 11 (1994).

[63]. Packard, supra note 40, at 247-48 (discussing Dr. King’s early involvement in the civil rights movement).

[64]. Id. at 253; see also Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634 (1957) (relevant legislation).

[65]. Charles Whalen & Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act, at xvi (1985).

[66]. Ogletree, supra note 58, at 149 (2004).

[67]. See Whalen & Whalen, supra note 65, at 1-2.

[68]. Whalen and Whalen provide five forces that spawned support for change in advance of the Civil Rights Act of 1964. Specifically, the five forces were: (1) the decision by African Americans that “the time for effective civil rights legislation had finally arrived”; (2) widespread protests; (3) violent opposition to the peaceful protests; (4) civil rights leaders’ successful exploitation of the gruesome violence inflicted upon protestors; and (5) “the decision of the Leadership Conference on Civil Rights to frame [the Civil Rights Act of 1964] in moral terms and to activate religious leaders in states with small black populations.” Id. at 232-33.

[69]. See id. at 227-29.

[70]. See Ogletree, supra note 58, at 149.

[71]. See Whalen & Whalen, supra note 65, at 232-33.

[72]. See Ogletree, supra note 58, at 148-49.

[73]. See, e.g., Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430, 442 (1968) (holding school board in New Kent County, Virginia “must be required to formulate a new plan and . . . fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools”); Griffin v. Cnty. Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 224-25 (1964) (holding the closing of public schools and the use of public funds to support segregated private schools by the school board in Prince Edward County, Virginia violated the equal protection rights of black schoolchildren); Cooper v. Aaron, 358 U.S. 1, 15 (1958) (holding school officials in Little Rock, Arkansas could not use their own good faith as a legal excuse to justify a delay in the implementation of its desegregation plan despite the fact that actions of other state officials rendered the plan difficult or impossible to achieve).

[74]. See, e.g., Singleton v. Jackson Mun. Separate Sch. Dist., 419 F.2d 1211, 1217 (5th Cir. 1969) (vacating the deferral of desegregation and ordering immediate desegregation), rev’d in part, Carter v. W. Feliciana Parish Sch. Bd., 396 U.S. 290, 292 (1970) (per curiam).

[75]. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 275, 319-20 (1978) (concluding that a medical school’s policy of reserving a certain number of available slots in an entering class to minority applicants constituted impermissible racial quotas).

[76]. See, e.g., Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421 (2013) (“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (“Federal racial classifications . . . must serve a compelling governmental interest, and must be narrowly tailored to further that interest.”).

[77]. See generally Danielle R. Holley, Is Brown Dying? Exploring the Resegregation Trend in Our Public Schools, 49 N.Y.L. Sch. L. Rev. 1085 (2005) (arguing the recent shift toward local control of school districts threatens to undermine the spirit of Brown).

[78]. Id. at 1095-98 (noting a recent shift toward resegregation in schools that regained unitary status following the Court’s 1991 decision in Board of Education of Oklahoma City v. Dowell).

[79]. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747-48 (2007).

[80]. In his dissenting opinion, Justice Stevens harshly criticized the Chief Justice’s reliance on Brown. See id. at 798-99 (Stevens, J., dissenting) (“[T]he history books do not tell stories of white children struggling to attend black schools. In this and other ways, the Chief Justice rewrites the history of one of this Court’s most important decisions.”).

[81]. Id. at 709-10 (Roberts, C.J., opinion).

[82]. Id. at 711.

[83]. Id.

[84]. Parents Involved, 551 U.S. at 711-12.

[85]. See id. at 715-16.

[86]. Id. at 716.

[87]. Id. at 725 (quoting Brief for Respondents at 2, Parents Involved, 551 U.S. 701 (No. 05-915), 2006 WL 2944684) (internal quotation marks omitted).

[88]. Id. at 726.

[89]. Parents Involved, 551 U.S. at 720.

[90]. See id. at 736-37.

[91]. See id.

[92]. Id. at 803 (Breyer, J., dissenting).

[93]. Id. at 803-04.

[94]. Parents Involved, 551 U.S. at 799 (Stevens, J., dissenting).

[95]. Id. at 799 n.8 (emphasis added).

[96]. Id. at 782-83 (Kennedy, J., concurring).

[97]. See id. at 787 (“The enduring hope is that race should not matter; the reality is that too often it does.”).

[98]. See id. at 783 (“Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.”).

[99]. 539 U.S. 306 (2003). In Grutter, the Court used strict scrutiny to determine whether an admissions policy at the University of Michigan Law School, which considered race as one of several different factors, violated the Equal Protection Clause. See id. at 322. The Court determined the school’s objective in achieving a diverse student body was compelling. Id. at 328. Moreover, the Court found the admissions policy was narrowly tailored in that it was “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Id. at 334 (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978)).

[100]. Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring). Justice Kennedy also believed schools should remain “free to devise race-conscious measures to address the problem in a general way.” Id. at 788-89.

[101]. Id. at 789-90.

[102]. See id. at 793 (“If . . . students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application.”).

[103]. See Christopher B. Knaus, Still Segregated, Still Unequal: Analyzing the Impact of No Child Left Behind on African-American Students, in The State of Black America 2007: Portrait of the Black Male 105, 110 (2007) (noting that African American attendance at predominately minority schools rose by 7% to 73% from 1991 to 2003); see also Gary Orfield & Chungmei Lee, Civil Rights Project, Brown at 50: King’s Dream or Plessy’s Nightmare? 19-21 (2004), available at http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-a t-50-king2019s-dream-or-plessy2019s-nightmare/orfield-brown-50-2004.pdf (providing empirical data on the measurable increase in resegregation in the American education system).

[104]. See Orfield & Lee, supra note 103, at 9 (“[R]apid resegregation is denying equal opportunities to pre-college students and deepening the inequalities of their preparation.”); see also Heather G. Peske & Kati Haycock, Educ. Trust, Teaching Inequality: How Poor and Minority Students Are Shortchanged on Teacher Quality 1 (2006), available at http://www.edtrust.org/sites/edtrust.org/files/publications/ files/TQReportJune2006.pdf (“Poor and minority children don’t underachieve in school just because they often enter behind; but, also because the schools that are supposed to serve them actually shortchange them in the one resource they most need to reach their potential—high-quality teachers.”).

[105]. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”).

[106]. For those unsympathetic to the plight of the disadvantaged and un- or under-educated, we all pay the price. The costs associated with the thousands, nay millions, of missed opportunities impact society as a whole. In their book, Data Strategies to Uncover and Eliminate Hidden Inequities: The Wallpaper Effect, Ruth S. Johnson and Robin Avelar La Salle explore many of the “cost” estimates that provide a snapshot of some of the fallout. For example, a student without a high school diploma will pay less in taxes over his or her lifetime, is more likely to receive public assistance, has a greater chance of future incarceration, and is far less likely to exercise his or her right to vote. See Ruth S. Johnson & Robin Avelar La Salle, Data Strategies to Uncover and Eliminate Hidden Inequities: The Wallpaper Effect 67-68 (2010).

[107]. See, e.g., Conn. Const. art. VIII, § 1 (West, Westlaw through Feb. 2014 amendments) (“There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.”); N.D. Const. art. VIII, § 1 (West, Westlaw through Nov. 2014 amendments) (“A high degree of intelligence, patriotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people, the legislative assembly shall make provision for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control. This legislative requirement shall be irrevocable without the consent of the United States and the people of North Dakota.”); S.C. Const. art. XI, § 3 (West, Westlaw through 2014 amendments) (“The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the State and shall establish, organize and support such other public institutions of learning, as may be desirable.”).

[108]. See, e.g., Horton v. Meskill, 376 A.2d 359, 374 (Conn. 1977) (“We conclude that without doubt . . . that, in Connecticut, elementary and secondary education is a fundamental right, that pupils in the public schools are entitled to the equal enjoyment of that right, and that the state system of financing public elementary and secondary education as it presently exists and operates cannot pass the test of ‘strict judicial scrutiny’ as to its constitutionality.”); see also Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d 206, 212 (Conn. 2010) (“We conclude that article eighth, § 1, of the Connecticut constitution guarantees Connecticut’s public school students educational standards and resources suitable to participate in democratic institutions, and to prepare them to attain productive employment and otherwise to contribute to the state’s economy, or to progress on to higher education.”). North Dakota courts have held similarly. See Bismarck Pub. Sch. Dist. 1 v. State, 511 N.W.2d 247, 256 (N.D. 1994).

[109]. Erica Frankenberg et al., Civil Rights Project, Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards 7-8 (2010), available at http://civilrightsproject.ucla.edu/research/k-12-education/ integration-and-diversity/choice-without-equity-2009-report (noting the rise of the charter school movement).

[110]. See generally Ray Budde, Education by Charter: Restructuring School Districts: Key to Long-term Continuing Improvement in American Education (1988) (describing many of the features of charter schools); U.S. Dep’t of Educ., Innovations in Education: Successful Charter Schools (2004), available at http://www2.ed.gov/admins/comm/choice/charter/report.pdf (same).

[111]. See U.S. Dep’t of Educ., Final Management Information Report: Charter School Vulnerabilities 2 (2010), available at https://www2.ed.gov/about/ offices/list/oig/invtreports/x42k0002.pdf (noting the more than forty criminal investigations into embezzlement of public funds by charter schools).

[112]. See Frankenberg et al., supra note 109, at 14 (“In general, analyses that consider charter schools across the country tend to produce results suggesting that charter achievement lags behind traditional public school achievement . . . .”); see also Matthew Di Carlo, Albert Shanker Inst., The Evidence on Charter Schools and Test Scores 12 (2011), available at http://www.shankerinstitute.org/resource/evidence-charter-schools-and-test-scores (“The results indicated that overall charter effects on student achievement were negative . . . .”).

[113]. See Jack Buckley & Mark Schneider, Charter Schools: Hope or Hype? 2-3 (2007); see also Katrina Bulkley & Jennifer Fisler, Consortium for Policy Research in Educ., A Decade of Charter Schools: From Theory to Practice 1-2 (2002), available at http://www.cpre.org/images/stories/cpre_pdfs/rb35.pdf (listing five advantages of charter schools predicted by early supporters).

[114]. See Bulkley & Fisler, supra note 113, at 1-2.

[115]. See Di Carlo, supra note 112, at 9.

[116]. See Ctr. for Research on Educ. Outcomes, Stanford Univ., National Charter School Study: 2013, at 15 (2013), available at http://credo.stanford.edu/ documents/NCSS%202013%20Final%20Draft.pdf.

[117]. See, e.g., Alain Jehlen, Public Schools and Charter Schools: Who’s Leaving Kids Behind?, neaToday (Mar. 25, 2011, 8:31 AM), http://neatoday.org/2011/03/ 25/public-schools-and-charter-schools-whos-leaving-kids-behind/ (noting shortcomings of charter schools).

[118]. See, e.g., Paul T. O’Neill & Renita K. Thukral, The Unique System of Charter Schools in New Orleans After Hurricane Katrina: Distinctive Structure, Familiar Challenges, 11 Loy. J. Pub. Int. L. 319, 339-340 (2010) (noting the demonstrable success of some low-income students enrolled in New Orleans charter schools).

[119]. See U.S. Dep’t of Educ., Inspector General’s Semiannual Report to Congress, No. 60, at 17-20 (2010), available at https://www2.ed.gov/about/ offices/list/oig/semiann/sar60.pdf.   The following are just a few examples of the waste, fraud, and abuse outlined in the report. In Illinois: “A jury found the former principal of the Triumphant Charter School in Chicago guilty of theft involving Federal funds. . . . [T]he former principal used her school’s American Express card for personal use, including almost $30,000 in charges at major department stores such as Louis Vuitton and Coach, jewelry, diet pills, and hair care and cosmetics. She then paid the credit card bill with money received from the Department [of Education], the State [of Illinois], and Chicago Public Schools.” Id. at 17. In Louisiana: “The former business manager of the Langston Hughes Academy Charter School in New Orleans pled guilty to charges of theft. Our investigation determined that over the course of a 14-month period, the former business manager embezzled approximately $660,000 from the school by making unauthorized cash withdrawals from the school’s bank account. In an effort to conceal the theft, the former business manager manipulated the school’s records by making the withdrawals appear to be payments to vendors for items such as textbooks.” Id. And finally, in Missouri: “The former director of the Doniphan R-I School District Vocational Technical School was sentenced to serve 7 months in prison, 3 years of supervised release, and was ordered to pay more than $90,500 in restitution for fraud and theft. Our investigation found that between 2001 and 2004, the former director prepared fraudulent purchase orders for computer equipment purportedly for use by the school, which he converted to his own use or sold through his personal business. He also purchased items with his personal credit card purportedly for use at the school, was reimbursed for the items by the school district, and then returned the items for in-store credit.” Id. at 17-18.

[120]. Id. at 5 (“Our investigations have found . . . chartering agencies often fail to provide adequate oversight needed to ensure that Federal funds are properly used and accounted for.”).

[121]. For example, commentators have noted: “Where there is little oversight, and lots of public dollars available, there are incentives for ethically challenged charter operators to charge for services that were never provided. A particularly egregious example comes from the operator of the Cato School of Reason Charter School (Cato) in California. According to an investigation conducted by the California State Auditor, Cato registered and collected millions of taxpayer dollars for students who were actually attending private schools. . . . Tens of millions of dollars have been lost due to charter operators illegally inflating their enrollment figures. For example, an independent auditor’s report of Success Academy Charter School in Minnesota found that $608,000 was owed to taxpayers because they overstated their enrollment. Another example comes from Florida, where an investigation by school district officials found that Life Skills Center charter school charged the state $101,000 for students it didn’t have.” Ctr. for Popular Democracy & Integrity in Educ., Charter School Vulnerabilities to Waste, Fraud, and Abuse 5 (2014), available at http://populardemocracy.org/sites/default/files/FraudandMismgmt5-3-14%28FINALx3.0%29REV.pdf.

[122]. Id. at 12-46 (providing examples of mismanagement by charter school operators).

[123]. See, e.g., Letter from Daryl G. Purpera, Legislative Auditor, State of La., to John A. Alario, Jr., President of Senate, State of La., et al. (Dec. 10, 2014), available at http://app.lla.state.la.us/PublicReports.nsf/0/125153D3D979DDBE86257DAA0052501B/$FILE/000040E1.pdf (detailing thousands of dollars in accounting errors made by a charter school system in Louisiana).

[124]. See Frankenberg et al., supra note 109, at 13-18 (drawing extensively on the available data to reach this conclusion).

[125]. Brian Gil et al., Rand Educ., Rhetoric Versus Reality: What We Know and what We Need to Know About Vouchers and Charter Schools 98-109 (2007), available at http://www.rand.org/content/dam/rand/pubs/monograph_reports/ 2007/RAND_MR1118-1.pdf (providing a state-by-state analysis on academic achievement at charter schools).

[126]. Id. at 97.

[127]. See id. at 99.

[128]. Leland Ware & Cara Robinson, Charters, Choice, and Resegregation, 11 Del. L. Rev. 1, 4-5 (2009) (“[R]esearchers found that charter schools were, on average, more segregated than traditional public schools.”).

[129]. Iris C. Rotberg, Charter Schools and the Risk of Increased Segregation, Educ. Wk. (Mar. 27, 2014), http://www.edweek.org/ew/articles/2014/02/01/kappan_rotberg.html.

[130]. Id.

[131]. Laura Hibbard, Myron Orfield, Scholar, Says Ethnicity-Targeted Charter Schools Feel Like ‘Jim Crow Segregation,Huffington Post, http://www.huffingtonpost.com/2011/12/23/myron-orfield-scholar-say_n_1167984.html (last updated Dec. 23, 2011, 2:31 PM).

[132]. Rotberg, supra note 129.

[133]. Id.

[134]. Id.

[135]. Id.

[136]. Id.

[137]. Although the United States Constitution contains no specific language that grants specific “substantive” due process rights, the United States Supreme Court has established that emanating from the penumbras of the Bill of Rights are certain rights that are “basic civil rights of man” and “fundamental to the very existence and survival of the race.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); see also Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (holding right of members of a household to define their “family” is fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding right to marry is fundamental); Griswold v. Connecticut, 381 U.S. 479, 483-84 (1965) (holding right to use contraceptives is fundamental).

[138]. See, e.g., Conn. Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d 206 (Conn. 2010).

[139]. 20 U.S.C. § 6301 (2012) (footnote omitted).

[140]. 20 U.S.C. § 6311(b) (2012).

[141]. 20 U.S.C. § 6311(b)(1)(C).

[142]. See Knaus, supra note 103, at 108.

[143]. 20 U.S.C. § 6311(b)(2)(B)–(C) (2012).

[144]. See James E. Ryan, The Perverse Incentives of the No Child Left Behind Act, 79 N.Y.U. L. Rev. 932, 934 (2004).

[145]. 20 U.S.C. § 6311(b)(2)(F) (2012).

[146]. See Gershon M. (Gary) Ratner, Why the No Child Left Behind Act Needs to Be Restructured to Accomplish Its Goals and How to Do It, 9 UDC/DCSL L. Rev. 1, 18 (2007) (“Even if NCLB could sustain the same improvements rates of 3% and 10% per decade in the future, it would take about 280 more years to raise the remaining 85% of poor and minority students to ‘proficiency’ in reading and eighty-five more years to do so in math.”).

[147]. Regina Ramsey James, How to Mend a Broken Act: Recapturing Those Left Behind by No Child Left Behind, 45 Gonz. L. Rev. 683, 699 (2010).

[148]. Ratner, supra note 146, at 2 (footnote omitted) (quoting Advancement Project et al., Joint Organizational Statement on No Child Left Behind Act 1 (2004)).

[149]. James, supra note 147, at 709.

[150]. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 782-798 (2007) (Kennedy, J., concurring).

[151]. Id. at 789.

[152]. See id. at 793.

[153]. See id. at 792-793.

[154]. Grutter v. Bollinger, 539 U.S. 306, 341 (2003) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978)). In Grutter, the Court referenced various “qualities and experiences that may be considered valuable contributions to student body diversity.” Id. at 338. Specifically, the Court listed among its bases for diversity “admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.” Id.

[155]. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954).

[156]. Knaus, supra note 103, at 110 (footnotes omitted).

[157]. At one point during the height of affirmative action, the United States Supreme Court recognized limitations on its authority and gave deference to Congress with respect to remedial legislation. See Metro Broad., Inc. v. Fed. Commc’ns Comm’n, 497 U.S. 547, 563 (1990); Fullilove v. Klutznick, 448 U.S. 448, 472 (1980). However, the Court shifted positions as its composition changed, holding instead that all legislation that creates a racial classification, whether federal, state, or local, must be subjected to strict scrutiny. See Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995).

[158]. See 20 U.S.C. § 6313(a)(5) (2012) (relevant statutory provision).

[159]. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973) (“[A]t least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.”).

[160]. See Gulf, Colo. & Santa Fé Ry. Co. v. Ellis, 165 U.S. 150, 155 (1897) (“[Distinctions] must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.”).

[161]. Studies reveal harsh disparities in the educational experiences of poor children when compared to the children of middle- and high-income families. See Paul E. Barton, Educ. Testing Serv., Parsing the Achievement Gap: Baselines for Tracking Progress 4 (2003), available at http://www.ets.org/Media/Research/pdf/ PICPARSING.pdf (“The gaps in school achievement among racial and ethnic groups and between students from poor and non-poor families are well documented. They are large and have been persistent; this is well known and widely accepted.”).

[162]. See Grutter v. Bollinger, 539 U.S. 306, 329 (2003).

[163]. See id. at 333-35 (finding school’s system designed to create a “critical mass” of minority students to be narrowly tailored).

[164]. See Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923); see also Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972) (“[T]he values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.”); Ginsberg v. New York, 390 U.S. 629, 639 (1968) (“[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”).

[165]. See Yoder, 406 U.S. at 213.

[166]. Prince v. Massachusetts, 321 U.S. 158, 167 (1944).

[167]. Id. at 166 (footnotes omitted).

[168]. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 518-19 (1925) (“It is not seriously debatable that the parental right to guide one’s child intellectually and religiously is a most substantial part of the liberty and freedom of the parent.”).

[169]. It must be noted that the Court is not clear on what should be the proper standard of review in cases impacting the substantive due process rights of parents in their child-rearing capacity. See Troxell v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring).

[170]. See Prince, 321 U.S. at 167.

[171]. See 20 U.S.C. § 6301 (2012) (“Statement of purpose”).

[172]. See generally Barton, supra note 161 (providing data on the disparities); Craig D. Jerald, Educ. Trust, All Talk, No Action: Putting an End to Out-of-Field Teaching (2000), available at http://www.edtrust.org/sites/edtrust.org/files/ publications/files/AllTalk.pdf (same).

[173]. See, e.g., 20 U.S.C. §§ 6316, 6319 (2012) (imposing onerous requirements on districts).

[174]. See generally Angela Minnici & Deanna D. Hill, Ctr. on Educ. Policy, Educational Architects: Do State Education Agencies Have the Tools Necessary to Implement NCLB? (2007), available at www.cep-dc.org/ displayDocument.cfm?DocumentID=313 (discussing the requirements added by NCLB and the ability of the states to effectively comply).

[175]. See Educ. Trust, The Funding Gap 2005: Low-Income and Minority Students Shortchanged by Most States 1 (2005), available at http://www.edtrust.org/sites/edtrust.org/files/publications/files/FundingGap2005.pdf (“We take children who have less to begin with and give them less in school.”).

[176]. Id. at 2.

[177]. Id.

[178]. Id. at 8.

[179]. Id.

[180]. See Revenues and Expenditures for Public Elementary and Secondary Education: School Year 2004-05, Nat’l Center Educ. Stat. (Apr. 2007), http://nces.ed.gov/pubs2007/expenditures/findings2005.asp.

[181]. “Bootstrapping” is a term used by many who believe that individuals, including minorities and the economically disadvantaged, are responsible for lifting themselves “up the social and economic ladder through individual effort, hard work and personal responsibility.” Noliwe M. Rooks, The Myth of Bootstrapping, Time.com (Sept. 7, 2012), http://ideas.time.com/2012/09/07/the-myth-of-bootstrapping/.

[182]. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954).