What if the equal protection clause wasn’t the primary basis for school integration lawsuits? This week’s guest author – Erika Wilson, a Law Professor at the University of North Carolina – looks at perhaps unintended consequences of our long reliance on equal protection arguments. In a forthcoming paper, she presents an alternative that speaks to the notion of school segregation as indeed a problem that all live with. As a white person, who attended segregated white public schools, I find the argument powerful in a way that resonates with me personally, and I’m excited to feature a short summary here.

Update: the article was released in May 2021- here is the full text as well as a short twitter summary.

Quick background: equal protection and due process were central to the legal strategy that Charles Hamilton Houston and Thurgood Marshall used to chip away at, and eventually, overturn the “separate but equal” doctrine in Plessy. It’s a straightforward legal argument: Black children are denied equal protection of the law by being barred from schools with more material/financial resources and other important learning opportunities. It spoke to a truth of segregated schooling during the Brown era that remains true today and has been made worse during the pandemic. (And, to be sure, pre-Brown lawyers tried to make the argument that segregation harmed white students as well- it just never got traction.)

Relying on equal protection, however, plays directly into a harmful belief: that school desegregation was/is exclusively for students of color. Which has led to a harmful practice: the burden of desegregation was/is consistently placed on students of color. As argued below (and true of my personal experience), segregation of white students is a problem, both for the students themselves and for our hopes of nurturing a vibrant multi-cultural democracy. Wilson’s argument builds out a legal framework from there, what she calls “monopolizing whiteness.” As others have said, it’s of course not on people of color, but instead on us – as white people – to fix the system that we’ve broken. In a legal sense, “monopolizing whiteness” builds on equal protection arguments to get us closer to just that: recognizing (and fixing!) the mutual harms caused by segregated schooling. And, if you’d like to read more beyond this post, check out this interview with Wilson in the PRRAC newsletter (starting on pg. 7).

“Monopolizing Whiteness” by Erika Wilson, Harvard Law Review (forthcoming)

Much of the normative discourse and literature regarding school segregation focuses on the ways in which school segregation harms students of color.  Segregation of white students is often overlooked. Failing to critically examine the import of white student segregation leads to white student segregation being situated as a process that occurs passively and inadvertently rather than actively and intentionally.  Importantly, when white student segregation is situated as being the result of passive and inadvertent processes, rather than active and intentional ones, it diminishes the political will to address the issue through policy prescriptions.  It also obscures the role of the state in facilitating white student segregation which thereby has the effect of limiting courts ability to intervene as a matter of law.  Simply put, white student segregation is normalized as an issue for which no political or legal solution is necessary or possible. 

Monopolizing Whiteness takes on the task of critically examining racial segregation in schools from the vantage point of white students.  The article makes three important contributions:

• An explanation for the persistence of white student segregation
• Examples from 3 predominately white public schools
• A new legal framework that accounts for harms of white student segregation 

First, it proffers a theoretical accounting of why white student segregation persists.  When queried, white parents espouse support for having their children attend racially diverse schools.  Yet white students are one of the most segregated groups of students.  The article seeks to provide answers to the paradox of white parents espousing support for integrated schools and the reality of white students attending segregated schools. It looks to the sociology literature for answers. It analyzes white student segregation through a sociological framework called social closure (closely related to the notion of opportunity hoarding). Social closure is a process of subordination whereby a dominant group monopolizes scarce resources by closing off opportunities to others who are constructed as an out-group.  The dominant group is often aided by the power of the state in doing so.

The article suggests that high quality schools are situated as a scarce resource.  As a dominant group, whites act in ways that exclude students of color, who are constructed as out-group members, from accessing high quality schools.  For example, prior to Brown v. Board of Education, state power in the form of de jure segregation laws and policies helped to facilitate the exclusion of students of color from high quality schools.   Since Brown outlawed the use of race specific de jure segregation laws, state power in the form of race neutral laws and policies surrounding school district boundary lines, are utilized to produce a similar racially exclusionary result.  The net effect the article argues, is that the social closure process enables a dominant group (e.g., whites) to monopolize a scarce resource (e.g., high quality schools) by using mechanisms (e.g., school district boundary lines) to lawfully exclude an out-group (e.g., students of color) from obtaining access to high quality schools.

The second contribution the article makes is that it uses concrete examples from three predominately white school districts, to demonstrate how school district boundary lines facilitate social closure.  In racially diverse metropolitan areas, most racial segregation in schools occurs between school districts rather than within school districts.  The article analyzes laws on the abrogation of school district boundary lines, school district secessions, and school district consolidations.  It argues that these laws allow white students to monopolize the highest quality schools within metropolitan areas.  Most importantly, it emphasizes that while the harm caused by racial segregation in schools for students of color is deprivation of access to high quality schools, the corresponding harm of segregation for white students is monopolization of high quality schools and social isolation that deprives white students of valuable skills that they need to effectively function in a racially diverse democratic state.  Both harms the article argues, undercut the democracy enhancing purposes of public education.  Yet the harms are shielded from judicial scrutiny because Supreme Court decisions like Milliken v. Bradley and San Antonio v. Rodriguez effectively fortify school district boundary lines from judicial scrutiny.   The article therefore concludes that, the constitutionally based equal protection framework usually relied upon to address issues of racial segregation in schools, is ill-equipped to capture the harms wrought by white student segregation.

The “Monopolizing Whiteness” framework

The third and final contribution the article makes is to suggest a new framework for considering how to both articulate and remedy the harms caused by white student segregation. An important part of the analysis that is often missed regarding the harms of racial segregation in schools, is the extent to which racially segregated schools, particularly white student segregation in schools, undermines democracy.  It does so by allowing a subset of the population to either hoard or be deprived of the kinds of educational opportunities that allow for social mobility, better life outcomes, and the ability to participate equally in the social and economic life of the democracy.  The article therefore suggests that a framework premised on protecting larger structural processes is necessary to get at the larger democracy harms caused by racial segregation in schools.  For guidance, it turns to antitrust law.  Antitrust law is used to regulate the competitive processes that undergirds a strong economy.  The article uses the antitrust essential facilities doctrine to metaphorically elucidate the harms caused by white student segregation and to consider the best ways to remedy those harms.   It analogizes between the need for processes that allow for competition to have a well-functioning economy in the antitrust context, and the need to have a well-educated citizenry to have a well-functioning democracy in the education context.  In effectuating the analogy, racially integrated public schools are to a well-functioning democracy as competition is to a well-functioning economy.

Under the antitrust essential facilities doctrine, a firm incurs liability if they do not provide their competitors with access to an essential facility that is necessary for the competitor to compete in a market.  The article argues that if we conceptualize high quality schools as essential facilities necessary for citizens to fully participate in our democracy, then the use of school district boundary lines to mete out educational opportunities is effectively an anticompetitive means of excluding low-income students of color.  The conceptual framework offered by the essential facilities doctrine, the article argues, could be useful to legislators in thinking about how to draw and regulate school district boundary lines (see, for example, a pending suit in New Jersey).  The framework might also be useful to litigators in thinking about how to make arguments regarding how state constitution right to education clauses should be interpreted.