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Race and the Law

Monopolizing Whiteness

In racially diverse metropolitan areas throughout the country, school district boundary lines create impermeable borders, separating affluent and predominantly white school districts from low-income, predominantly nonwhite school districts. The existence of predominantly white and affluent school districts in racially diverse metropolitan areas has material consequences and symbolic meaning. Materially, such districts receive greater educational inputs such as higher per-pupil spending, higher teacher quality, and newer facilities than their neighboring more racially diverse districts. Symbolically, owing to the material and status-based value attached to whiteness, the districts are also viewed as elite, which creates a magnetic effect that draws white affluent families.

Despite the material consequences and symbolic meaning of maintaining predominantly white school districts, a limited amount of scholarship addresses racial segregation in schools from the vantage point of white students. This Article fills that void in the school-desegregation legal literature. It analyzes white-student segregation through a sociological framework called social closure, a process of subordination whereby one group monopolizes advantages by closing off opportunities to other groups. This Article argues that the laws surrounding school district boundary lines enable white students in racially diverse metropolitan areas to engage in social closure and to monopolize high-quality schools.

This Article further suggests that equal protection doctrine, the doctrine traditionally used to address racial segregation in schools, cannot capture the monopolization harms caused by white-student segregation. Therefore, it looks to antitrust law for guidance. It demonstrates how principles from antitrust’s essential facilities doctrine can help conceptualize and remedy the monopolization harms caused by white-student segregation in racially diverse metropolitan areas.

[W]hites do not see or interpret their own racial segregation and isolation as a racial issue at all.

— Eduardo Bonilla-Silva1×1. EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLORBLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES 133 (5th ed. 2018).

Introduction

In pockets of racially diverse metropolitan areas across the country, white students are geographically separated from nonwhite students, walled off not just in racially homogenous individual schools but within entire school districts.2×2. See Myron Orfield, Milliken, Meredith, and Metropolitan Segregation, 62 UCLA L. Rev. 364, 433–36 (2015) (describing how patterns of white flight in racially diverse metropolitan areas lead to predominantly white school districts in racially diverse metropolitan areas). The City of Mountain Brook, Alabama, a suburb of Birmingham, provides an illustrative example. Fewer than five miles separate Birmingham and Mountain Brook.3×3. Distance Between Birmingham, Alabama and Mountain Brook, Alabama, Google Maps, https://goo.gl/maps/T8iY4wk8tgFTcyaW8 [https://perma.cc/JU43-LYJW] (right click on “Birmingham”; then click “Measure distance”; then click on “Mountain Brook”). Yet the Mountain Brook school district is 96% white,4×4. Mountain Brook School District, AL, Nat’l Ctr. for Educ. Stat., https://nces.ed.gov/Programs/Edge/ACSDashboard/0102490 [https://perma.cc/8NAS-KUUT]. while the neighboring Birmingham City school district is around 70% Black.5×5. Birmingham City School District, AL, Nat’l Ctr. for Educ. Stat., https://nces.ed.gov/Programs/Edge/ACSDashboard/0100390 [https://perma.cc/L5DV-U947]. Most of the students in the Birmingham City school district are classified as low income with 65% of them qualifying for free and reduced lunch.6×6. Fall Free Lunch: 2018–2019, Ala. State Dep’t of Educ., https://www.alsde.edu/dept/data/Pages/freelunch-all.aspx [https://perma.cc/54TQ-ATHJ] (select “2018–2019”; then select “2018-2019 Fall Free Lunch (by System-School)”) (displaying free and reduced lunch data for Birmingham City). In the Mountain Brook school district, fewer than 1% of the students qualify for free and reduced lunch.7×7. Id. The dissonance between the racial and socioeconomic makeup of the Birmingham and Mountain Brook school districts is not an anomaly. Similar disparities exist between neighboring school districts throughout the country.8×8. See generally James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (2011) (chronicling the ways in which demographic disparities between neighboring school districts lead to educational disparities between neighboring school districts); Erika K. Wilson, Toward a Theory of Equitable Federated Regionalism in Public Education, 61 UCLA L. Rev. 1416, 1425–50 (2014) (arguing that the combination of metropolitan fragmentation and localism in public education leads to the exclusion of poor and minority students from access to high-quality school districts, which are largely clustered in more affluent and predominantly white localities).

Historical and continued patterns of racial discrimination result in money, social capital, and access to power being aligned in favor of those raced as white.9×9. See, e.g., Stephen J. Caldas & Linda Cornigans, Race/Ethnicity and Social Capital Among Middle- and Upper-Middle-Class Elementary School Families: A Structural Equation Model, Sch. Cmty. J., Spring/Summer 2015, at 137, 137 (“Black, Hispanic, and mixed-race family status is associated with significantly diminished Total Social Capital, both directly and indirectly via socioeconomic status.”); Sarah Mervosh, How Much Wealthier Are White School Districts than Nonwhite Ones? $23 Billion, Report Says, N.Y. Times (Feb. 27, 2019), https://www.nytimes.com/2019/02/27/education/school-districts-funding-white-minorities.html [https://perma.cc/VB6Q-5CZC] (“School districts that predominantly serve students of color received $23 billion less in funding than mostly white school districts in the United States in 2016, despite serving the same number of students . . . .”). Consequently, the clustering of whites together in public school districts within racially diverse metropolitan areas has material consequences and symbolic meaning. One immediate material consequence relates to the distribution of educational inputs and outcomes. School districts that enroll predominantly white student bodies are more likely to have high-quality educational inputs like highly qualified teachers, rigorous classes, and new physical facilities.10×10. See, e.g., Frank Adamson & Linda Darling-Hammond, Stanford Ctr. for Opportunity Pol’y in Educ., Addressing the Inequitable Distribution of Teachers: What It Will Take to Get Qualified, Effective Teachers in All Communities 1 (2011), https://edpolicy.stanford.edu/sites/default/files/publications/addressing-inequitable-distribution-teachers-what-it-will-take-get-qualified-effective-teachers-all-_1.pdf [https://perma.cc/L2W5-CFXM] (“By every measure of qualifications — certification, subject matter background, pedagogical training, selectivity of college attended, test scores, or experience — less qualified teachers tend to serve in schools with greater numbers of low-income and minority students.”); Jeannie Oakes, Adam Gamoran & Reba N. Page, Curriculum Differentiation: Opportunities, Outcomes, and Meanings, in Handbook of Research on Curriculum 570, 589 (Philip W. Jackson ed., 1992). They are also more likely to produce better educational outcomes such as high test scores, graduation rates, and college acceptance rates.11×11. See Alana Semuels, Good School, Rich School; Bad School, Poor School, The Atlantic (Aug. 25, 2016), https://www.theatlantic.com/business/archive/2016/08/property-taxes-and-unequal-schools/497333 [https://perma.cc/S3VN-U878] (describing lower academic success rates for poor and predominantly minority school districts in comparison to wealthier, predominantly white districts in Connecticut).

White-student segregation imposes significant costs. Most notably, it impedes the democratic goals of public education and the overall health of the American democracy. Public education is often tabbed as the great equalizer.12×12. See, e.g., Horace Mann, The Republic and the School: Horace Mann on the Education of Free Men 87 (Lawrence A. Cremin ed., 1957) (“Education, then, beyond all other divides of human origin, is the great equalizer of the conditions of men — the balance-wheel of the social machinery.”). It is supposed to provide a vehicle through which anyone can obtain social mobility and the skills necessary to participate effectively in the American democracy.13×13. See David F. Labaree, Public Goods, Private Goods: The American Struggle over Educational Goals, 34 Am. Educ. Rsch. J. 39, 41 (1997) (articulating the goals of American public education as democratic equality, social efficiency, and social mobility). When white students cluster together in public schools, it creates school-based economies of agglomeration.14×14. This Article uses the term “economies of agglomeration” as it is used in the urban-economics context to mean material benefits that accrue when firms in the same industry locate next to one another. See G.S. Goldstein & T.J. Gronberg, Economies of Scope and Economies of Agglomeration, 16 J. Urb. Econ. 91, 91 (1984) (defining economies of agglomeration as “concentration[s] of economic activity” where “spatial proximity of activities makes resources more efficient than if such activities are spatially dispersed”). Examples of the agglomeration benefits include an increased ability to attract high-quality teachers, concentrated pools of middle-class and affluent students with greater social and political capital, and greater per-pupil funding.15×15. See Derek W. Black, Middle-Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373, 403 (2012) (describing the benefits that middle-class students bring to public schools); cf. Ming Ming Chiu & Lawrence Khoo, Effects of Resources, Inequality, and Privilege Bias on Achievement: Country, School, and Student Level Analyses, 42 Am. Educ. Rsch. J. 575, 591–92 (2005) (finding that unequal distribution of school resources also significantly reduced students’ test scores). The agglomeration effects not only advantage students in the predominantly white and affluent districts, but they also disadvantage students in the neighboring, predominantly low-income and nonwhite districts.16×16. See, e.g., Ann Owens, Income Segregation Between School Districts and Inequality in Students’ Achievement, 91 Socio. Educ. 1, 18 (2018) (“Children from advantaged families accumulate additional resources in segregated places because their families can access the most advantaged contexts. . . . [S]egregation has trade-offs — it may benefit advantaged families and harm disadvantaged families.” (citation omitted)). The net effect is to allow students in predominantly white school districts to hoard the best educational opportunities.

Despite the significant consequences of white-student segregation, much of the legal literature on racial segregation in schools focuses on students of color and the ways in which they are harmed by school segregation.17×17. Michael Heise, Brown v. Board of Education, Footnote 11, and Multidisciplinarity, 90 Cornell L. Rev. 279, 297 (2005) (“[P]ost-Brown de facto school segregation litigation focused on educational harms to minority students flowing from attending racially isolated schools.”); see, e.g., Derek W. Black, In Defense of Voluntary Desegregation: All Things Are Not Equal, 44 Wake Forest L. Rev. 107, 121 (2009) (describing the harms of racially segregated schools and arguing that “[b]ecause race is a dominant factor in the unwillingness of parents and teachers to choose high-minority and high-poverty schools, changing the racial identity of schools is effectively a predicate to delivering equitable and quality educational opportunities to many minority children”); Kimberly Jenkins Robinson, The Constitutional Future of Race-Neutral Efforts to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools, 50 B.C. L. Rev. 277, 327–36 (2009) (documenting the harms to minority students of racially isolated schools and noting that for minority students “racially isolated schools offer inferior educational opportunities and produce inferior outcomes,” id. at 328); James E. Ryan, Schools, Race, and Money, 109 Yale L.J. 249, 284 (1999) (examining the monetary and nonmonetary costs of racially segregated schools for minority students and noting that “[b]ecause minority students are disproportionately poor, racial isolation and socioeconomic isolation (or isolation by class) typically go hand in hand, and race and class clearly interact in the creation and pathology of urban schools”). A limited amount of scholarship considers the meaning and consequences of racial segregation in schools for white students.18×18. See, e.g., Susan L. DeJarnatt, School Choice and the (Ir)rational Parent, 15 Geo. J. on Poverty L. & Pol’y 1, 19–26 (2008) (describing sociological literature on the impact of race on parental choice in schools and noting that white parents look for schools with few numbers of African Americans); Robert A. Garda, Jr., The White Interest in School Integration, 63 Fla. L. Rev. 599, 600 (2011) (describing the benefits of racially diverse environments for white students); Erika K. Wilson, The New White Flight, 14 Duke J. Const. L. & Pub. Pol’y 233, 253–56 (2019) (analyzing the ways in which white parents end up choosing predominantly white schools for their children).

A significant consequence of failing to critically examine white-student segregation is that it leads to white-student segregation being situated as a process that occurs passively and inadvertently rather than actively and intentionally. Situating white-student segregation as the result of passive and inadvertent processes diminishes the political will to address the issue through policy prescriptions. It also obscures the role of the state in facilitating white-student segregation, thereby limiting the ability of courts 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.

This Article takes on the task of critically examining the problem of white-student segregation in racially diverse metropolitan areas. Part I utilizes a sociological framework called social closure to proffer a theory for why white-student segregation persists. Social closure is a dynamic process of subordination in which a dominant group, aided by the state, secures advantages by utilizing exclusionary practices to monopolize scarce resources.19×19. Raymond Murphy, Social Closure: The Theory of Monopolization and Exclusion 8 (1988). This Part analyzes the ways in which white-student segregation is a product of social closure. It argues that laws and policies surrounding school district boundary lines facilitate social closure and allow predominantly white school districts to monopolize high-quality schools.20×20. What constitutes a high-quality school is difficult to quantify. This Article uses the term “high-quality schools” to mean schools that have highly qualified teachers, rigorous curricular offerings, well-maintained physical facilities, and high levels of student achievement. Each of these measures is recognized as an important component in assessing the quality of education offered by schools to students. See, e.g., Marisa Cannata et al., The Nat’l Ctr. on Scaling Up Effective Schs., Reaching for Rigor: Identifying Practices of Effective High Schools 45–49 (2013), https://files.eric.ed.gov/fulltext/ED561267.pdf [https://perma.cc/HTU6-4YGH] (defining a rigorous curriculum as one that “[is] intellectually challenging, covers broad and deep content, and prepares students for college and careers,” id. at 45, and noting the connection between such a curriculum and high-value schools); Linda Darling-Hammond, Teacher Quality and Student Achievement: A Review of State Policy Evidence, Educ. Pol’y Analysis Archives, January 1, 2000, at 1, 1 (describing the importance of highly qualified teachers and summarizing findings from a fifty-state survey that showed a correlation between highly qualified teachers and student outcomes); Mark Schneider, Nat’l Clearinghouse for Educ. Facilities, Do School Facilities Affect Academic Outcomes? 16 (2002), https://files.eric.ed.gov/fulltext/ED470979.pdf [https://perma.cc/W4HK-J2QM] (summarizing research findings and noting that “school facilities affect [student] learning”). It concludes by demonstrating the ways in which equal protection doctrine falls short of reaching the monopolization harms caused by white-student segregation.

Part II makes a normative argument for turning to a private law framework — antitrust law and the essential facilities doctrine — for guidance. It suggests that the essential facilities doctrine offers a valuable framework through which one can both conceptualize and remedy the monopolization harms caused by white students congregating in predominantly white school districts.21×21. This Article builds upon the prior work of scholars who approach racial inequality from an antitrust perspective. See, e.g., Robert Cooter, Market Affirmative Action, 31 San Diego L. Rev. 133, 134 (1994); Daria Roithmayr, Barriers to Entry: A Market Lock-In Model of Discrimination, 86 Va. L. Rev. 727, 731–32 (2000).

Part III analyzes the problem of predominantly white school districts in racially diverse metropolitan areas monopolizing high-quality schools. It illustrates how the essential facilities framework would capture the monopolization harms wrought by such districts in ways that the equal protection doctrine cannot. Part IV concludes the Article.


* Wade Edwards Distinguished Scholar, Thomas Willis Lambeth Distinguished Chair in Public Policy, Associate Professor of Law, University of North Carolina at Chapel Hill. I am thankful to Ifeoma Ajunwa, Khaled Beydoun, Derek Black, Andrew Chin, John Coyle, Brant Lee, Stacy Hawkins, Osamudia James, and Audrey McFarlane for their helpful comments on earlier drafts. I also appreciate comments received from participants at faculty workshops at the American University Washington College of Law, LatCrit 2019 Georgia State University College of Law, Lutie Lytle Workshop at SMU Dedman School of Law, NYU School of Law Clinical Writers Workshop, NYU Stephen Ellman Clinical Theory Workshop, University of Maryland Francis King Carey School of Law, Tulane School of Law, the University of Baltimore School of Law, the University of Arkansas School of Law, and the University of South Carolina School of Law. A special thanks to Drew Bencie, Chennell Coleman, Jonathan Dickerson, Julia Leopold, and Brendan Morrissey for providing invaluable research assistance, and to my husband Tariq Wilson and my son Malcolm Xavier Wilson for their unending patience and support.