Vol. LIII No. 2

Middle-Income Peers as Educational Resources and the Constitutional Right to Equal Access

Abstract: Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. Since the effective end of mandatory desegregation, advocates have lacked legal tools to address it. As an alternative, some advocates and scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. Thus, all that has remained for students in poor and minority schools is the hope that school finance litigation could direct sufficient resources to mitigate their plight. This Article offers another solution. Rather than simply importing concepts from federal desegregation into school finance, this Article articulates a unique theory of equal access to middle-income peers that is solidly grounded in state constitutional and school finance principles. In particular, it conceptualizes middle-income students as one of the educational resources that school districts allocate. As such, school finance principles of strategic and equitable distribution of resources apply. This theory is narrower than others and would not directly challenge segregation that exists between districts, but its narrowness is its doctrinal strength. Moreover, an empirical study of district-level practices reveals that conventional wisdom may have underestimated the level of inequality that occurs within districts. The racial inequality in access to middle-income peers within districts is vast and corresponds with dramatic shifts in achievement gaps, a core indicator of constitutional violations in school finance litigation.

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