Racial discrimination in the legal profession

The Impact of Residential Resegregation, Racially Polarized Voting and Redistricting, and “Second-Generation” Bars to Voting by Racial Minorities on Educational Funding

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The Impact of Residential Resegregation, Racially Polarized Voting and Redistricting, and “Second-Generation” Bars to Voting by Racial Minorities on Educational Funding

20. This Report has also discussed the impact of elementary education on higher education, including law school. This section of SALT’s Report examines the impact of recent legal developments on educational funding impacting racial and ethnic minorities.

21. Those consequences, however, have only been aggravated by recent, developments in United States jurisprudence and state legislation. As noted in Section III.B. of this Shadow Report, U.S. Supreme Court decisions and some state laws have prevented efforts to affirmatively remedy the effects of U.S. apartheid on the educational opportunities of U.S. racial and ethnic minorities.52 This section will discuss how residential Resegregation, and the increase in racially polarized voting and redistricting, and the growth of “second-generation” bars to voting by racial and ethnic minorities have impacted educational funding for these groups.

  1. De Facto Educational and Housing Resegregation and its Impact on Education

22. After the end of de jure segregation in both schools and housing, and a relatively short period of desegregation, both housing and education became de facto re-segregated to an extent that targeting schools for differential funding and resources based on their racial makeup became both possible and prevalent,53 violating, inter alia, ICERD, art. 5.54 The majority of school districts’ revenue is generated through local property taxes. Therefore, residential segregation directly translates into differential revenue for districts that are composed of predominately racial and ethnic minority residents to the extent that these minorities generally generate lower property tax revenue.55 This issue specifically arose in San Antonio Independent School District v. Rodriguez,56 in which the Supreme Court ruled that substantially different expenditures on education among school districts that were closely correlated with the racial and ethnic makeup of the school district did not violate the Equal Protection Clause. In doing so, the Supreme Court overruled the district court that had found such differing educational funding levels violated the Equal Protection Clause.57 The rule established in San Antonio v. Rodriguez continues to this day.

23. San Antonio v. Rodriguez illustrates the connection between residential and educational segregation and educational funding. A more recent Supreme Court case illustrates that even when jurisdictions attempt to voluntarily remedy the resegregation of their schools through nominally race-conscious measures, such efforts will now be held unconstitutional. In the case Parents Involved in Community Schools v. Seattle School District No. 1,58 two school districts that had been previously de jure segregated59 were prohibited from taking the very same measures to desegregate that would have been previously constitutionally required by the Supreme Court in Brown v. Board of Education. As Justice Breyer’s dissent in Seattle noted, “de facto resegregation is on the rise.... It is reasonable to conclude that such resegregation can create serious educational, social, and civic problems.”60 Justice Breyer concluded by noting that the Supreme Court was turning its back on its most famous desegregation opinion:
[T]he very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.
The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we 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.61
24. In addition to resegregation of existing public schools, predominately white private schools proliferated in response to integrated schools,62 and the percentage of the public school population that was minority increased substantially.63 Thus, de facto segregation increased not only within the public school system, but also as a result of the growing development of primarily white private education and increasingly minority public education. As the next section illustrates, this educational segregation has been accompanied by racially polarized voting, redistricting,64 and membership in the respective political parties.65 With Republican representatives representing largely white districts, their incentive to support public school funding at either the state or local level diminished as their own constituencies increasingly abandoned the public school system. On a local level, the increasing racial polarization has aggravated the already severe problems of unequal educational funding identified in San Antonio v. Rodriguez.
25. In addition to the public funds allocation decisions, private ordering exacerbates these problems of both income and racial segregation. Market-based private ordering in the United States appears to demonstrate that as more racial minorities are present in a given neighborhood, the valuation premium for a house in a given neighborhood declines.66 Put another way, the market systematically provides a higher valuation to neighborhoods with lower black presence (estimated as under 10 percent). Through the property-tax-based school financing scheme common across the United States, higher valuation neighborhoods are in turn more able to provide resources for the funding of elementary and primary education. The market’s message is clear: if racial minorities are discouraged from living in a neighborhood, each homeowner is better able to preserve the value of his or her house – a principal asset of many people in the United States. The obvious result is that racial minorities are concentrated – whatever their wealth level – in housing patterns that preserve valuations of essentially majority-only localities.
26. Even when majority persons seek bargain housing by moving into minority-concentrated neighborhoods through a process described as gentrification, at key tipping points racial minorities are both 1) priced out of neighborhoods through housing and rent price increases where majority persons enter, and also are 2) discouraged from accessing housing as a result of the wealth effect incentive that the market provides for low minority presence in majority neighborhoods.
27. The combination of these public and private actions contributes to the erosion of the position of racial minorities in the educational system. Although one could imagine that minority-voting patterns might seek to alter the allocation of resources through public funding, there are further forces at work. There is a concerted ideological effort in the name of “voter integrity” that attempts in state law to erect or increase hurdles to the voting process in local, state, and federal elections.67
28. Voting restrictions have been implemented in a wide number of states since 2010, as is demonstrated in the map below.68

“The new laws range from photo ID requirements to early voting cutbacks to voter registration restrictions. Partisanship and race were key factors in this movement. Most restrictions passed through GOP-controlled (Note to the CERD: “Grand Old Party” colloquial name for the Republican predominantly white political party of the two major political parties in the U.S.) legislatures and in states with increases in minority turnout.

•In 15 states, 2014 will be the first major federal election with these new restrictions in place. Ongoing court cases could affect laws in six of these states.

•The courts will play a crucial role in 2014, with ongoing suits challenging laws in seven states. Voting advocates have filed suits in both federal and state courts challenging new restrictions, and those suits are ongoing in seven states — Arizona, Arkansas, Kansas, North Carolina, Ohio, Texas, and Wisconsin. There is also an ongoing case in Iowa over administrative action that could restrict voting. More cases are possible as we get closer to the election.”69
29. The racial component of these voting restrictions is borne out in the analysis of the patterns of where these restrictions have been put in place.
Race was also a significant factor. Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place. Of the 12 states with the largest Hispanic population growth between 2000 and 2010, 9 passed laws making it harder to vote. And nearly two-thirds of states — or 9 out of 15 — previously covered in whole or in part by Section 5 of the Voting Rights Act because of a history of race discrimination in voting have new restrictions since the 2010 election.[7] Social science studies bear this out. According to the University of Massachusetts Boston study, states with higher minority turnout were more likely to pass restrictive voting laws. A University of California study suggests that legislative support for voter ID laws was motivated by racial bias.70

  1. Recent developments in US Constitutional and State law have legally legitimated and aggravated racially polarized voting patterns, violating, inter alia, CERD, articles 271 and 672

30. After the end of most absolute bars to voting by racial minorities, a new wave of efforts by white legislators to diminish the right to vote emerged. As the dissent in Shelby County, Ala. v. Holder noted:

Although the [Voting Rights Act] wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated. . . . Congress also found that as "registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength." . . . See also Shaw v. Reno, 509 U. S. 630, 640 (1993) ("[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices" such as voting dilution). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as "second-generation barriers" to minority voting.
Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an "effort to segregate the races for purposes of voting." Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority's votes. . . . A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority-white areas into city limits, thereby decreasing the effect of [Voting Rights Act]-occasioned increases in black voting. . . . See also H. R. Rep. No. 109-478, p. 6 (2006) (although "[d]iscrimination today is more subtle than the visible methods used in 1965," "the effect and results are the same, namely a diminishing of the minority community's ability to fully participate in the electoral process and to elect their preferred candidates").73
31. This pattern has been aggravated by the increasingly racial polarization within the two major U.S. political parties. This pattern has been documented by Gallup polling data74 that demonstrates that “over the course of time, whites as a whole have gotten more Republican, and more reliably so.”75 As the Gallup analysis notes:
In recent years, party preferences have been more polarized than was the case in the 1990s and most of the 2000s. For example, in 2010, nonwhites' net party identification and leanings showed a 49-point Democratic advantage, and whites were 12 percentage points more Republican than Democratic. The resulting 61-point racial and ethnic gap in party preferences is the largest Gallup has measured in the last 20 years. Since 2008, the racial gaps in party preferences have been 55 points or higher each year; prior to 2008, the gaps reached as high as 55 points only in 1997 and 2000.76
32. Gallup also notes: “Over the last two decades, whites have tended to favor the Republican Party and nonwhites have overwhelmingly favored the Democratic Party. During the last few years, those racial and ethnic divisions have grown, mostly because whites have drifted more toward the GOP.”77
33. The result of these convergent developments is that, because voting districts at the state and federal level are overwhelmingly drawn on the basis of party affiliation, the constituency of individual state and federal representatives has become increasingly racially polarized as the parties themselves have become racially polarized. These developments have served to radically decrease the incentive of white legislators at the state and federal level to represent the interests of minority voters, including their interest in educational opportunity.
34. In June 2013, the US Supreme Court invalidated Section 5 of the US Voting Rights Act that required preclearance for changes to voting procedures in parts of the country that had historically impeded racial minorities from voting. The federal statute in question had been most recently re-authorized by an almost unprecedented majority of the United Congress. The re-authorization was passed by the U.S. House of Representatives by a vote of 390 to 33,78 and passed the Senate by a vote of 98 to 0.79 It should be noted that all of the votes in the House of Representatives against renewal came from states with long histories of discrimination, reflecting the increasingly racially polarized pattern of voting, particularly at the Congressional level.80 Moreover, all of the votes in the House of Representatives against renewal of the act were Republican, reflecting the increasingly racially polarized nature of the two major US political parties.81
35. In finding that Alabama overcame Congress’s power to enforce racial minorities’ voting rights, the Shelby County decision invoked the theory of states’ “equal sovereignty” — the unwritten principle that underpinned the Court’s infamous ruling in Dred Scott v. Sandford.82 The Dred Scott Court held that black persons could not be U.S. citizens because citizenship confers the rights in the Privileges and Immunities Clause,83 which could include the right to vote, and slaveholding states refused to acknowledge black persons’ voting rights. Shelby County marked the first time since Dred Scott that the Supreme Court invoked equal sovereignty in a voting rights case.84
36. These burdens fall particularly harshly on low-income racial minorities. Such efforts to decrease or dilute the racial minority vote for partisan ends through thinly veiled “neutral” legislation were the subject of many court challenges in the 2012 election cycle. However, in the wake of a retreat of the U.S. Supreme Court from the vindication of voting rights of racial minorities in its recent jurisprudence that reinvigorated a pre-Civil War “tradition” of “equal sovereignty” for the states,85 the efforts of those seeking to dilute racial minority voting power have redoubled.86 The consequence for education is to discourage local, state and federal funding for the most vulnerable students in the poorer districts made up significantly of racial minorities. Coupled with these purposive actions are the felon disenfranchisement laws of several states that dilute the meaningful participation of significant portions of the racial minority communities in governance because of the well-documented racial disparities in the administration of the criminal justice system.87 The resulting lack of representation leads to the election of representatives who do not adequately protect minority elementary and secondary schools through fairer resource allocation at the local, state, or federal level.88
37. Perversely, efforts to enhance standards on what elementary and secondary students are supposed to have mastered in order to be competitive in a globalizing world are not accompanied by the associated resources for these students in resource-poor neighborhoods where significant numbers of racial minorities live. Thus, the advantages of the more affluent districts are structurally enshrined and made more significant as the standards for success are raised for all students even though the means to reach that success are unevenly distributed across the student population to the detriment of students in poor neighborhoods where racial minorities are concentrated.89 Even where resources are provided, they are focused on test taking success rather than learning – further reducing the educational benefit of these standards enhancing efforts.

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