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  • Written by Derek W. Black, Professor of Law, University of South Carolina
Legacy of Jim Crow still affects funding for public schools

Nearly 70 years ago – in its 1954 Brown v. Board[1] decision – the Supreme Court framed racial segregation as the cause of educational inequality. It did not, however, challenge the lengths to which states went to ensure the unequal funding of Black schools.

Before Brown, Southern states were using segregation to signify and tangibly reinforce second-class citizenship[2] for Black people in the United States. The court in Brown deemed that segregation was inherently unequal. Even if the schools were “equalized” on all “tangible factors,” segregation remained a problem and physical integration was the cure, the Court concluded.

That framing rightly focused on segregation’s immediate horror – excluding students from schools based on the color of their skin – but obscured an important fact. In addition to requiring school segregation, many states also had long segregated school funding. Some had used “racially distinct tax[3]” policies that reserved separate funds for white and Black schools. Other states had moved school funding responsibility and control[4] from state officials to local communities. Local officials could then ensure inequality without any specific law mandating it[5].

Brown’s focus on physical segregation inadvertently left important and less obvious aspects of local funding inequality unchecked. Those practices still drive underfunding in predominantly poor and minority schools. Through the University of South Carolina School of Law’s Constitutional Law Center[6], since 2021 we have been documenting the historical connection[7] between segregation and states’ reliance on local school funding. In our view, until states stop relying so heavily on local school funding, the equal educational opportunities that Brown first sought will remain out of reach for K-12 students in the 21st century.

What’s wrong with local funding

A large body of evidence shows “money matters[8].”

Increased spending improves[9] college attendance rates, graduation rates and test scores. But, as a 2018 report revealed, school districts enrolling “the most students of color receive about $1,800, or 13%, less per student”[10] than districts serving the fewest students of color.“

A more recent analysis[11] further demonstrated that school funding cuts during the Great Recession disproportionately affected Black students and exacerbated achievement gaps.

A Black man teaches a classroom full of students.
In most U.S. states, local school funding drives more resources toward middle-income students than poor students. Gary Friedman/Los Angeles Times via Getty Images[12]

Most school funding gaps have a simple explanation: Public school budgets rely heavily on local property taxes[13]. Communities with low property values can tax themselves at much higher rates[14] than others but still fail to generate anywhere near the the same level of resources as other communities.

In fact, in 46 of 50 states[15], local school funding schemes drive more resources to middle-income students than poor students. The local funding gap between districts mostly serving middle-income versus poor students in New Jersey[16], for example, is $3,460 per pupil. While state and federal programs often send additional funds to poor students, they are insufficient to fully meet the additional needs of low-income students[17].

Missed opportunities to cure local funding

In Brown v. Board, the court glossed over the history of school segregation and its nuances. The court said it was impossible to "turn the clock back to 1868,” when the nation adopted the Fourteenth Amendment, or “even 1896,” when the court authorized segregation. Instead, it declared[18] that “we must consider public education in the light of its full development and its present place in American life throughout the Nation.”

This pivot let the court tackle segregation on a slate scrubbed clean of history’s mess. But it also deprived the court of any serious consideration of Southern states’ complex and racially motivated system of local school funding.

Later court decisions did not even recognize that a problem with local funding might exist. To the contrary, they put a preference on local funding over remedying inequality. In the 1973 case of San Antonio Independent School District v. Rodriguez, the court rejected a challenge to the inequality local school funding causes, reasoning that “local control” over school funding was “vital to continued public support of the schools”[19] and “of overriding importance from an educational standpoint as well.”

A year later, in Milliken v. Bradley, the Supreme Court blocked a desegregation remedy that would have spanned multiple districts. Finances and local autonomy were at the heart of the court’s rationale. It wrote[20], “No single tradition in public education is more deeply rooted than local control over the operation of schools.” In its view, desegregation between districts would destroy that tradition and create a host of problems regarding local school funding.

To be sure, those decisions did not preclude desegregation within individual districts. But the Court declared desegregation and school funding inequality that occurs between school districts – as opposed to within school districts – as largely beyond the reach of federal judicial power.

Funding, control and segregation

Our research[21] reveals that during the South’s Reconstruction[22], Black people and progressive whites saw state control[23] as the solution to inadequate and unequal education. They adopted policies to that effect[24], many of which were enshrined in state constitutions[25] rather than laws reversible by the legislature.

Local communities were certainly important to the implementation of schools, but states like Texas[26] and Virginia[27] centralized school administration, school finance and a variety of other policies. Some states, such as South Carolina[28], placed the core issue of physical segregation under state control and prohibited it outright.

Then, during the Jim Crow era, localism became the tool to reverse this progress and equality[29]. States increased reliance on local taxation[30], gave local white officials discretion[31] over state funds, and constitutionally secured segregation[32]. Some went so far as to craft color-coded funding systems[33] where white taxes funded white schools[34] exclusively.

Others, like South Carolina[35], achieved the same end by letting taxpayers select which of the segregated schools would receive their funds. Southern leaders openly linked local funding and control to the “wisdom” of segregation[36].

The development of Northern local school systems[37] was historically distinct. Yet, even in some Northern states, racial antagonism and concerns over segregation prompted pushes for local decision-making[38]. More generally, some Northern states followed a trajectory similar to Southern states: Illinois, for example, imposed a statewide property tax[39] for white education[40] with supplemental local funding before the Civil War. Ironically, though, it ultimately became one of the states most dependent on local funding[41].

Toward a more fair system

While Brown v. Board declared school segregation itself unconstitutional, other related aspects of segregated schools – particularly the decentralization of school funding – continued unchecked after it. The longer those aspects remained, the more courts accepted them as a neutral aspect of delivering public education.

[Over 150,000 readers rely on The Conversation’s newsletters to understand the world. Sign up today[42].]

An important step in remedying entrenched school funding inequalities is to first recognize that they are rooted in the history of Jim Crow segregation. Another potential step is to return to the more centralized approach of Reconstruction – an approach[43] that states during their progressive eras have long recognized. And this step makes good constitutional sense, too. After all, every state constitution[44] places the ultimate obligation to fund and deliver public education on states[45], not local governments.

References

  1. ^ Brown v. Board (www.law.cornell.edu)
  2. ^ second-class citizenship (www.loc.gov)
  3. ^ racially distinct tax (uncpress.org)
  4. ^ moved school funding responsibility and control (www.jstor.org)
  5. ^ ensure inequality without any specific law mandating it (www.law.ua.edu)
  6. ^ Constitutional Law Center (sc.edu)
  7. ^ historical connection (papers.ssrn.com)
  8. ^ money matters (learningpolicyinstitute.org)
  9. ^ improves (www.nber.org)
  10. ^ about $1,800, or 13%, less per student” (edtrust.org)
  11. ^ analysis (www.educationnext.org)
  12. ^ Gary Friedman/Los Angeles Times via Getty Images (www.gettyimages.com)
  13. ^ local property taxes (apps.urban.org)
  14. ^ tax themselves at much higher rates (www.law.cornell.edu)
  15. ^ 46 of 50 states (apps.urban.org)
  16. ^ New Jersey (apps.urban.org)
  17. ^ additional needs of low-income students (edtrust.org)
  18. ^ declared (www.law.cornell.edu)
  19. ^ “vital to continued public support of the schools” (www.law.cornell.edu)
  20. ^ wrote (www.law.cornell.edu)
  21. ^ Our research (papers.ssrn.com)
  22. ^ the South’s Reconstruction (theconversation.com)
  23. ^ state control (www.ednc.org)
  24. ^ policies to that effect (kansaspress.ku.edu)
  25. ^ enshrined in state constitutions (review.law.stanford.edu)
  26. ^ Texas (www.jstor.org)
  27. ^ Virginia (encyclopediavirginia.org)
  28. ^ South Carolina (www.zinnedproject.org)
  29. ^ reverse this progress and equality (www.jstor.org)
  30. ^ increased reliance on local taxation (www.ednc.org)
  31. ^ white officials discretion (www.johnmarshall.edu)
  32. ^ constitutionally secured segregation (www.law.ua.edu)
  33. ^ color-coded funding systems (uncpress.org)
  34. ^ funded white schools (www.ednc.org)
  35. ^ South Carolina (babel.hathitrust.org)
  36. ^ “wisdom” of segregation (www.worldcat.org)
  37. ^ school systems (scholarlycommons.law.northwestern.edu)
  38. ^ local decision-making (www.worldcat.org)
  39. ^ statewide property tax (www.jstor.org)
  40. ^ white education (www.worldcat.org)
  41. ^ most dependent on local funding (nces.ed.gov)
  42. ^ Sign up today (memberservices.theconversation.com)
  43. ^ approach (openyls.law.yale.edu)
  44. ^ every state constitution (scholarlycommons.law.northwestern.edu)
  45. ^ states (casetext.com)

Authors: Derek W. Black, Professor of Law, University of South Carolina

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