Jan. 21, 2112
A note to PSAC colleagues:
This is a work-in-progress that remains incomplete in a few sections, as indicated.
If you are not already familiar with Elizabeth Anderson's work on educational equity,
you might want to read this paper strategically. Start with the abstract and then go
immediately to pp. 11-18, where I discuss her method. And then you could read the
sections entitled: Introduction, Anderson's Imperative, and Philosophers or Gekkos, as I
will be concentrating on this material. Appendix I is rather interesting as well.
Thanks for your interest, and I look forward to our discussion.
(The usual caveats and requests apply; please do not circulate this incomplete draft
without my permission.)
Yours,
Anna Marie
Working Title.
“Justice and School Finance: Is There a Radical Egalitarian Future Hidden Within
Anderson‘s Imperative?”
Anna Marie Smith
Abstract
“Justice and School Finance: Is There a Radical Egalitarian Future Hidden Within
Anderson‘s Imperative?”
An exploration of the tension between two major political philosophy approaches to
education equity: “adequacy” — in which justice requires the provision of a threshold
level of educational opportunity for all — and “equality” — in which the standard
requires limitations on the gap between the best off and the worst off. The discussion is
centered on the adequacy approach of Elizabeth Anderson. I begin by showing that her
2010 book, The Imperative of Integration, not only constitutes a compelling call for racial
desegregation but also reproduces the author’s earlier endorsement of the adequacy
approach. Moreover, Anderson continues to set the threshold level of educational
opportunity at a very high level. I outline her diagnosis of racial segregation as a major
1
cause of racial inequality, and summarize her argument for a moral obligation for racial
integration, paying particularly close attention to her proposals for school reform.
(Along the way, I also point out that as a “real world” theorist, Anderson has missed
out on an opportunity to engage with an important development in school finance
economics, namely weighted student funding.) Further, I demonstrate that Anderson is
implicitly endorsing a compound standard, one in which barriers to educational
opportunity related to both i) racial segregation and ii) race-neutral wealth differences
would be addressed. Then I offer a critical assessment of the validity of her “real world”
proposals; I construct an imaginary state in which her reforms are successfully
established and probe the implications for justice. My assessment pays attention to two
complementary dimensions: empirical changes to life chances, especially for the least
advantaged; and the legal empowerment of the least advantaged. I argue that Anderson
would establish a state constitutional right to education, and that the provision would
be framed in adequacy terms. I argue that we can appreciate the significance of
Anderson’s educational entitlement by taking the Supreme Court’s 1973 decision, San
Antonio v. Rodriguez, fully into account. However, I also show that the outcomes for
Anderson's thought experiment cannot be predicted in advance, and that the criticisms
of the radical egalitarians, Brighouse and Swift, may have merit in the end.
2
Introduction.
In an era in which fiscal austerity is considered an unassailable ideal and raceconscious integrationist policy is regarded as an anachronism, the post-Brown era’s
remarkable reduction in the achievement gap serves as an invaluable touchstone.
Desegregation, school finance reform, the first rounds of the redistributive Elementary
and Secondary Education Act grants from the federal government, and, more broadly,
the War on Poverty investments in poverty assistance and health care delivered
substantial results. Previously, low-income and African-American pupils attended
poorly resourced schools and turned in academic performances that were much more
modest than that for their higher-income and White counterparts. As the schools
serving the least advantaged students were enormously improved, the gaps in schools
spending and access to qualified teachers reached historic lows in the mid- to late-1970s.
As a direct result, the black-white achievement gap was halved between 1970 and the
mid-1980s; it reached historic lows in 1988. With retrenchment at the federal and state
levels, however, these gaps began to rise again in the 1980s, while the Supreme Court’s
abandonment of desegregation permitted school segregation to climb from the early
1990s to the present. Today, the schools with majority black student bodies are more
segregated and less resourced than ever before. International standardized test results
suggest that the United States has a much higher achievement gap for pupils from
different socio-economic backgrounds than any other OECD country. Comparative data
on school spending suggest that the United States has more inequality in school
spending than its European and Asian counterparts, and that these inequalities are
closely related to the average socio-economic conditions of the schools’ students. [D-H
18-19, 11-12, 12]
There is a strong consensus among education experts that teacher quality
constitutes one of the most important “inputs” where pupil achievement is concerned.
[d-h *] In an ideal society, each and every student would have a highly skilled and fully
certified teacher, regardless of his or her socioeconomic background. In our real world
conditions, the best teachers command the highest salaries; by the same token, the
schools spending the least on teacher salaries are overwhelmingly populated by the
lowest-performing teachers. [d-h pg *]1 On the whole, the wealthiest school districts in
the United States have budgets that are nearly ten times larger than that for the poorest.
[d-h, 12] The high spending districts typically have much more qualified and skilled
teachers, curricula oriented towards higher-level thinking instead of rote learning, a
richer array of course offerings, up-to-date libraries and computers, and smaller class
sizes.[dh 22]
The adequacy-equality debate among political philosophers dealing with
distributive justice and educational opportunity is a prominent element in the
contemporary literature. Adequacy theorists, such as Amartya Sen, [*] Martha
3
Nussbaum, [*] and Elizabeth Anderson [*], [see also Amy Gutmann, DE, esp. 136-139]
argue that the individual has a claim to a threshold level of goods that are functionally
related to her basic capabilities in order to live a human life worthy of respect. As
exercises in “real world” philosophy, adequacy arguments about justice take into
account contemporary conditions, including the scarcity of resources and the imperfect
cognitive and normative orientations of the human subject. Adequacy theorists argue
that the individual has a right to a decent level of educational opportunity since basic
capabilities — such as individual flourishing; the ability to earn a living wage in the
labor market; the ability to command the respect of one’s peers; and the ability to
participate freely and meaningfully in civil society, democratic deliberation, and the
political process — require access to a threshold level of school-based learning. [MN
exception*]
Egalitarian theorists, such as Rawls[fn] and Brighouse and Swift,[fn] share with
the adequacy theorists the valuing of these practices, and the assumption that schoolbased learning is indispensable to them. However, they give priority to the least
advantaged and they therefore argue that the introduction of a threshold entitlement to
adequate public schooling in “real world” conditions would be ultimately selfdefeating. The adequacy approach leaves the most advantaged free to accumulate
disproportionate shares of income and wealth, and to convert them into scarce
educational goods, such as hoarded shares [Tilly in Anderson*] of public educational
goods, private tutoring, and private schooling.
Egalitarians would concede that as long as the adequacy theorists set their
thresholds at levels above the current conditions of the least advantaged, the latter
would benefit from the adequacy entitlement in the form of enhanced individual
flourishing. However, in market societies featuring a “natural liberty”-style labor
market — that is, where status discrimination is prohibited such that careers are open to
talents, and the most desirable positions are distributed by meritocratic competition
[Rawls, TJ, 57] —education also has a positional good dimension. The value of my
educational credentials is relative to the quantity and quality of the credentials held by
my future competitors for scarce places in higher education institutions and the most
desirable positions.
In a competitive and individualistic society in which cross-class solidarity is rare,
and even the well-intentioned members of the upper strata grasp that they are locked
within a prisoner’s dilemma, the long-term impact of the provision of a decent
adequacy entitlement to education cannot be determined in advance. Adequacy
theorists do not hold that justice requires the limitation of inequality. However, they do
not prohibit the adoption of egalitarian policies, that is, the reforms that could reduce
the gap between the most advantaged and the least advantaged, through the political
process. Perhaps the enhancement of the educational opportunities for the least
advantaged will facilitate their political mobilization; over the long term, this “real
4
world” society might see the formation of formidable radical social movements and the
gradual adoption of egalitarian policies as a result. On the other hand, however,
Brighouse and Swift predict that the most advantaged will react to the enhancement of
the educational entitlements among the least advantaged by engaging in an educational
“arms war.” As the least advantaged enjoy more and richer educational opportunities,
the most advantaged parents invest in private goods such as tutoring and private
schooling for their children to preserve their competitive superiority.[BS*] As the level
of educational opportunity enjoyed by the most advantaged is ratcheted up, the
positional dimension of the adequacy-level public schooling received by the least
advantaged will diminish accordingly.
In this paper, I intend to contribute four new elements to this well-established
debate. First, Brighouse and Swift tend to neglect the potential political mobilization
effect that Anderson’s rich adequacy entitlement could have among the least
advantaged. By the same token, Brighouse and Swift downplay the tactics used by the
most advantaged parents within the public system to hoard educational resources. It is
certainly true that by focusing exclusively on a small set of private market goods,
tutoring and private schooling, their argument is all the more concise, elegant, and
applicable to virtually any market society. In the American context, however, a
comprehensive study of the positional educational benefits that are effectively
purchased by middle- and upper-class parents for the exclusive use of their children has
to address these hoarding practices and the governmental structures that facilitate and
incentivize them.
Second, a comprehensive review of Anderson’s position on educational
entitlement is greatly complicated by the fact that she also insists upon the racial
desegregation of neighborhoods and schools. Brighouse and Swift have not fully
responded to Anderson’s arguments about the duties of wealthy whites with respect to
racial integration. With her publication of a new book on this subject, The Imperative of
Integration,2 we have the opportunity to consider their debate in fresh terms.
Third, reading Imperative in tandem with Anderson’s earlier political philosophy
articles [*] reveals that Anderson’s “real world” reforms should entail two key elements
in school finance economics. In an earlier article, [*] she calls for fiscal neutrality. Under
this regime, each local school district in a given state would be able to access an equal
share of the state’s total property base for the generation of educational tax revenues.
Valuing the expression of local educational preferences, she requires the state school
finance system to permit voters in each district to choose how much they wish to be
taxed, and the fiscal neutrality system would guarantee that their chosen level of school
taxation effort would determine the degree to which the local district budgets would be
lifted above her threshold. Anderson does not, however, explicitly integrate fiscal
neutrality into her Imperative. I demonstrate that even if her racial integration reforms
were fully implemented, her standard of fairness could not be achieved without fiscal
5
neutrality. At the same time, it should be noted that Anderson does not address another
recent development in school finance economics, namely the weighted student
approach. Under these terms, school budgetary needs reflect both the size of the student
body, and the individual characteristics of the pupils. Using coefficients calculated to
reflect the additional costs of adequately educating pupils with disabilities, pupils
coming from low-income households, and English language learners, weighted student
formulae permit a much more fine-tuned approach to the fair distribution of
educational spending than the traditional per-pupil budgetary methods. I argue that
Anderson should supplement the integrationist policies that she endorses in Imperative
with weighted student funding requirements as well. In sum, the strongest
reconstruction of Anderson’s arguments requires a compound standard: a high level of
threshold entitlement; racial integration; optional egalitarian statutory reforms to limit
inequality; permissible supplements within and outside the public system; fiscal
neutrality; and weighted student funding.
Fourth, the Anderson versus Brighouse and Swift debate has been conducted
largely in the terms proper to their “real world” political philosophy genre. There are
remarkable parallels, however, between their arguments and major constitutional
debates that are being conducted in the United States’ federal and state courts. By
demonstrating the continuities with San Antonio v. Rodriguez (411 U.S. 1 (1973)), Parents
Involved in Community Schools v. Seattle School District No. 1 (551 U.S. 701 (2007)), and the
right to education cases in the state courts, we can gain a fresh perspective on the
constitutional doctrine and underline the legal significance of the philosophers’
adequacy-equality debate.
In the first section of this paper, I will present Anderson’s argument for racial
integration through local zoning reforms and race conscious school policies. Given the
jurisdictional issues that would play an important role in her “real world” scenario, I
locate her reforms within a hypothetical state, Andersonia, that is located inside the
contemporary federal structure of the United States. I provide an account for my
supplementation of her integrationist adequacy approach with the fiscal neutrality and
weighted student funding regimes. Then I examine the ways in which the least
advantaged would benefit from her reforms — postponing, for the moment, the
competitive responses of the most advantaged. I show that she would endorse a new
constitution for Andersonia in which there would be an explicit state constitutional
right to education, specified in sufficientarian terms and defined with reference to
college readiness, a very rich threshold standard. By contrasting the Andersonian
constitutional right to education with our existing federal doctrine, under the holdings
in San Antonio v. Rodriguez (411 U.S. 1 (1973)), I show that Anderson’s constitutional
provision would represent a significant step towards the constitutional empowerment
for the least advantaged. My discussion of Rodriguez is also valuable insofar as it brings
to light the Supreme Court’s framing of the whole issue of local school budget
6
autonomy. Sracic’s close reading of the decision and the archival materials reveals the
way in which the Rodriguez majority situated the questions pertaining to local control
within the terms established by the Cold War approach to liberty rights.[*fn Sracic] The
holdings, and the Court’s Cold War framing, underline the extent to which the
hoarding of public school resources by the most advantaged are deeply entrenched in
the American civic ethos.
Having fully established Anderson’s reforms, I then weigh their strengths and
weaknesses. I critically review the evidence that Anderson herself relies upon —
especially the ethnographic studies of housing integration projects and research on the
validity of Allison’s “contact theory” — that suggest positive outcomes. I then introduce
several other dimensions that produce indeterminate or negative outcomes: empirical
evidence from Berkeley High School presented by Noguera and Wing, and, on a more
hypothetical level, the implications for justice in Andersonia of above-threshold
spending in some local districts, the political mobilization of the least advantaged,
defection on the part of the parents who send their children to private school, and
defection on the part of the Andersonians who move out of state. In the concluding
section, I contrast the implicit emphasis in Anderson’s work on jurisdictional reform
issues to the emergence of a cosmopolitan school of normative political theory. Both
types of work should be valued insofar as they explore the extent to which the most
advantaged have a duty to interrogate the naturalism of given political boundaries and
to adopt a more critical understanding of the spatial and associational limits of our
moral obligations.
Anderson’s Imperative.
Anderson’s Imperative of Integration is a powerful and ultimately persuasive
indictment of racial segregation in contemporary American society, and a compelling
call for integrative reforms. Marshaling a wealth of empirical data, including the fruits
of state-of-the-art research in the areas of demography, the housing preferences of
blacks and whites, and public opinion, Anderson argues that racial segregation is unjust
in that it embodies unjust social relations, is caused by unjust social relations, or
reproduces further unjust social relations. Although she readily concedes that racial
inequality is overdetermined, Anderson convincingly demonstrates that segregation is a
“principal cause” of racial inequality. [*] Through racial segregation, blacks are
disproportionately represented among low-income Americans and deprived of the
opportunity to join powerful political coalitions that control the distribution of public
and private resources. Access to social networks, mentors, and cultural capital is
extremely constrained for blacks who reside in the most segregated and low income
housing developments.
7
Anderson’s remarks about racial segregation and the maldistribution of public
goods, especially quality public schools, are particularly riveting. Of all racial and
ethnic groups, African-Americans are the most likely to reside in segregated
neighborhoods. The 2000 Census data suggest that about half of the United States’ black
population lives in “hypersegregated” census tracts.[26] Jim Crow segregation in the
public K-12 schools was significantly reduced between 1960 and 1990, thanks to the
impact of the Brown v. Board of Education decision in 1954 (347 U.S. 483 (1954)) and
subsequent federal regulation and conditional federal school spending. [fn: ESEA, cite
to Rosenberg*] However, the Supreme Court has deconstitutionalized racial segregation
since that time.[Chermerinsky*] From the 1970s onwards, the Supreme Court has
diminished the authority of the federal district courts to maintain desegregation orders
where de jure violations have been established, and it has consistently refused to
address racial segregation in districts where intentional racial discrimination on the part
of government actors had never been proven. [case cites, Milliken to Jenkins]
Today, advocates and federal regulators rarely charge schools districts with
committing de jure violations. Nevertheless, the segregation tide turned once again in
the early 1990s. Since that time, de facto segregation on the ground has actually become
much more widespread and pronounced. In 2005-06, the typical black student attended
a school that was 52 percent black, 30 percent white, 14 percent Latino, and 4 percent
Asian or Native American.[26] In New York, Michigan, Illinois, and California,
segregation is even more extreme. There, the typical black student attended a school in
which whites were a small minority: white students made up less than one quarter of
the whole student body.[26] Multiple studies have confirmed that the black-white
achievement gap is largest in the states with the most highly segregated schools, and
smallest in the states with the most integrated schools.[120] Teachers overwhelmingly
prefer to teach in the public schools with white majority or highly integrated student
bodies. Segregated schools tend to be staffed by the least experienced teachers, and their
inexperience has been linked to the black-white gap in educational achievement.[39,
121] Blacks attending integrated schools tend to do better than their counterparts in
segregated schools.[121] Although the peer effect is not well understood, educational
experts estimate that pupils gain a great deal from their exposure to higher achieving
and economically better pupils.[121] The peer effect dimension problematizes the
earlier studies that purported to show that busing black children into white majority
schools delivered few positive results in terms of the black-white achievement gap.
Intra-school segregation through tracking and the discriminatory use of disciplinary
exclusion can nullify the potential benefits from racial integration.[121] Substantial
gains in scholarly achievement, by contrast, were made by low income blacks drawn
from segregated communities who received scholarships to attend elite private
academies.[122] Other studies demonstrate that the benefits of integration for
disadvantaged blacks can extend throughout the life course. They found that after
8
controlling for family background, economic resources, and educational status, the
blacks who attended integrated schools were less likely to be incarcerated, and more
likely to earn a high school diploma.[122] Among the black students attending white
majority colleges, the ones who were educated in integrated high schools earned higher
grades than their black peers with diplomas from segregated high schools.[122]
Segregation in the public schools goes hand in hand with residential segregation.
The quality and reputation of the local school has a direct impact on the value of the
homes located within its catchment area. Conversely, because the school districts’ pupil
catchment zones reflect neighborhood divisions, and because blacks tend to live in
segregated neighborhoods, we end up with segregated student bodies in the public
schools.
The heavy hand of federal governmental responsibility for segregative
residential outcomes has already been well established where the New Deal and
postwar eras are concerned. [fed role: public housing, mortgage lending, highway
funding, etc. Massey and Denton, Oliver and Shapiro* ] The role of the local and state
governments in producing residential segregation should be emphasized as well. Local
governments have several tools at their disposal to safeguard the concentration of
wealthy families in a particular area such that they can take the form of a selfperpetuating exclusionary enclave and obtain legal ratification for their self-dealing.
Technically, all local governments are “creatures of the state”; in the end, the state bears
legal responsibility for their actions. The state, however, typically endows its local
governments with tremendous autonomy. The state permits the local governments that
serve particularly wealthy constituents to use zoning regulations freely to defend and
promote wealth-based exclusion. These local governments may, for example, require
their home owners to maintain minimum lot sizes, setbacks, and expensive amenities;
prohibit public housing, trailer parks, and mixed-income rental housing developments;
and restrict the construction of multifamily residential cooperatives or condominiums.
As a supplement to Anderson’s account, we could note that advocates for racial
equality have challenged this type of zoning in federal court, but have not prevailed. In
Village of Arlington Heights v. Metropolitan Housing Development Corporation (429 U.S. 252
(1977)), low-income blacks and a non-profit housing developer argued that because
blacks are overwhelmingly concentrated among the poor, a local government violated
their equal protections rights when it refused to grant the developer permission to
construct a mixed-income housing development, and to carry out its multiracial and
class-integrated vision of resident recruitment. The Supreme Court held that the
complainants had not proven racially discriminatory intent or purpose on the part of
the local government officials. By merely demonstrating that blacks would be
disproportionately harmed by the zoning decision, they had not met the burden of
establishing an equal protection violation, namely the showing that a discriminatory
intent or purpose was a motivating factor in the local government’s zoning decision.
9
Tucked away in the details of Anderson’s exacting and comprehensive review of
the latest social science findings on racial residential segregation is a damning piece of
evidence that deserves especially close inspection. The phenomenon of municipal
fragmentation involves the deliberate drawing and re-drawing of local government
boundaries. It is, in sum, an extremely complex legal maneuver that requires the explicit
approval of the gubernatorial and state legislative branches and extensive bureaucratic
adjustments on the part of several state agencies. While municipal fragmentation
constitutes a micro-level reform in sheer spatial terms, it is exquisitely fine-tuned for the
purpose of capturing arbitrary advantage. Through municipal fragmentation, an
opportunity-hoarding elite can promote its interests in residential capital gains and the
monopolization of high quality public school resources to an extreme degree. Anderson
notes that municipal fragmentation is not distributed evenly across the country. Nor is
it a random trend that pops up here and there without leaving any observable patterns
in its wake. On the contrary. Municipal fragmentation in the United States is
“particularly intense near cities with high black populations.” [39] Behind every type of
“white flight” from the “threat” of a black residential presence — whether it’s a white
mass movement to the suburbs as a whole, white flocking to specific white dominated
enclaves within the suburbs, or white “resettlement” in the gentrified and Disney-fied
section of the urban core — is a governmental actor facilitating white opportunity
hoarding. Anderson quite reasonably concludes that “there is reason to believe that
whites have used race-based municipal boundary drawing in conjunction with classexclusionary zoning to exclude blacks.”[39]
Racial integration, through the dismantling of de jure segregative laws and
integration on the spatial, informal, and social levels, brings with it significant benefits
and Anderson argues that they are morally significant. Clearly, blacks benefit from the
more equal distribution of public and private goods and the reduction of racial stigma.
Whites also benefit insofar as racial integration brings about important political effects.
Democratic procedures and the whole civic culture can be deeply transformed by racial
integration. It can introduce, for example, more thoughtful jury deliberation. It may be
necessary for a jury member to understand the socio-cultural context behind a series of
actions performed by the accused, and yet such understanding might be quite rare
outside a particular disadvantaged group. A democratic society gains from the
pluralistic epistemic advantage that can be produced by a racially integrated jury;
legitimate questions are more likely to be raised about the evidence produced by the
state prosecutor during the deliberations. Racial integration can also enhance
democratic accountability. With the empowerment of traditionally excluded black
citizens, their voices and specific demands can be amplified in public fora, and they can
themselves enjoy a more egalitarian opportunity to run for office. [pgs *]
Anderson’s concrete public policy proposals follow logically from her structural
diagnosis and moral argument. She endorses racial affirmative action as one of the
10
important tools for achieving racial integration. This is a forward-looking “plus system”
procedure that values the integration of a critical mass of blacks within elite institutions,
including colleges and professional schools, government contracting, and private
business subsidy programs, in order to promote interracial cooperation, attack racial
stigma, produce multiculturally sensitive elite decision-makers, and foster vibrant
democratic exchange. Black participants in her affirmative action programs would earn
inclusion on the basis of their achievement of a minimum standard of individual merit.
Crucially, she would nest racial affirmative action programs within a whole system of
reforms designed to dismantle segregation and discrimination and encourage racial
integration. Many of her proposed reforms would simply involve the active
enforcement of existing laws and policies, such as the prohibition of racial
discrimination in housing and employment and the dilution of black voting power.
Others would redefine existing regulations in more radical terms; she would establish,
for example, disproportionate impact standards and openly race conscious integrative
plans to produce diverse voting districts. In full opposition against a recent Supreme
Court decision, Parents Involved in Community Schools v. Seattle School District No. 1 (551
U.S. 701 (2007)), she explicitly calls for deliberately desegregative pupil assignment
programs in K-12 public schools to achieve integrated student bodies. Rejecting
Arlington Heights, she would prohibit exclusionary zoning and offer housing vouchers
to blacks that would subsidize their entry into white middle class neighborhoods. [72,
118-120, 189] Alert to the fact that blacks are vastly overrepresented within the lower
income brackets, and that ostensibly economic forms of exclusion often have a
disproportionate impact on African-Americans, she also endorses race-neutral policies,
such as the prohibition of class-segregative zoning regulations that are necessary for the
eradication of de facto racial segregation. [71-3, 189]
Moreover, she calls for full participation of members of virtually every social
group on terms of equality, cooperation, and mutual respect in all domains of civil
society. Anderson rules out, in this sense, reparations and black nationalist separatism.
Her vision of racial integration does not, however, extend as far as assimilation. While
she endorses the formation of a shared national identity that would serve as the
normative basis for public reason, she explicitly rejects the homogenizing vision of the
communitarians and republicans who would discourage the formation of particularistic
ethnic affiliations altogether.[*]
Equity and School Funding Issues
Anderson’s “real world” theory is designed to deal with human subjects as we
find them today, in our imperfect conditions of scarcity and limited social cooperation.
The human subjects who populate a “real world” theory should exhibit the sorts of
11
preference formation and cognitive processes that are familiar to us in the present.[3-4]
She nevertheless points out that this does not mean that “real world” theory must take
the feasibility of reforms into account as it defines our moral duties.[190-91] It does not
matter, for example, to the political philosopher who correctly identifies racial
segregation as a form of injustice whether the whites who benefit enormously from
segregation would respond to anti-racist criticism positively or stubbornly refuse to
give up their racial privilege. It is the moral duty of the individual to do what she can to
promote the justice of social arrangements. [148-9, cf. Rawls, natural duty, c.o. section of
TJ] Further, it is just to expect that each individual will bear her fair share of the costs of
the reforms necessary for progress. [149]
The testing of a “real world” philosophical argument, then, is genre specific. The
moral validity of a reform proposal generated out of a “real world” argument does not
rest on its prospects for implementation in the immediate context. What the “real
world” philosopher aims to do is to propose just institutions that would “block, work
around, or cancel out our motivational and cognitive deficiencies, […] harness our
nonmoral motives to moral ends, […] make up for each other’s limitations by pooling
our knowledge and wills.” [4] A sound “real world” theory, then offers an accurate
account of our biases and blindspots, identifies the ways in which they have
sedimented into unjust social structures, and designs institutions that would encourage
these still-flawed subjects to engage in morally better practices. [4] If possible, the
reforms proposed by a “real world” theory are put to the test in actual living
experiments. Their validity is proven if we find that “they solve the problems for which
they were devised, settle people’s reasonable complaints, and offer a way of life that
people find superior to what they had before.”[6] Given this framing, the scope of a
“real world” theory’s moral claims is limited to the historical configuration to which
they are addressed. It is a moral duty of great urgency to promote racial integration in
the United States today, given the ways that segregation has been caused by racial
injustice, embodies racial injustice, and promotes further racial injustice. At another
place and time, however, demographic concentrations by race could be much less
closely linked to injustice in these three respects; Anderson’s theory would be less
relevant to that world, but its historic specificity has no bearing on its validity for this
world.
Where a full-blown living experiment is not possible, we can glean evidence
about the effects of the theory’s reforms from scholarly observations of existing
institutions and plausible hypothetical models. Obviously, the further we get from the
comprehensive living experiment, our conclusions become all the more speculative. To
test the claims of “real world” theory, we usually have to make educated guesses,
preferably on the basis of psychological and sociological research, and well established
normative arguments, about the ways in which the various fragments would work
together as a whole.
12
In this discussion, then, I will set up an imaginary scenario that combines the
following features: it retains our current conditions where individual behavior,
structural inequality, and scarcity are concerned, but it suspends feasibility concerns
where Anderson’s proposed reforms are concerned. In a state named Andersonia, a
democratic social movement that strongly favors racial and economic justice becomes
extraordinarily popular and influential. The vast majority of Andersonia’s residents
strongly endorse the founding of their state, complete with its own constitution. The
constitution requires the adoption of highly interventionary state policies designed to
entitle its resident children with the right to an adequate education, [*fn Rebell etc on
state cons and edn rts] and the desegregation, in racial and economic terms, of the
state’s neighborhoods and public schools. There is a historic convergence in preferences
among voters from all walks of life; the coalition in support of the founding and
integrative reforms even includes several wealthy whites. The depth of this consensus is
such that the preferences of a majority of Andersonians remain secure even in the
difficult transitional years as the reforms are first introduced. In the face of the
inevitable implementation problems, they enthusiastically choose to stay the course.
What outcomes would the founding of Andersonia produce? Would the Andersonian
reforms benefit the least advantaged? Would they encourage already advantaged
wealthy whites who are bent on the narrow pursuit of their interests, sometimes at
great cost to the least advantaged, to examine their behavior critically and adopt
attitudes and practices more conducive to social cooperation and the promotion of a
non-discriminatory and non-exploitative conception of the public good?
For the purposes of this article, I will concentrate on one policy issue that is
central to distributive justice, namely the fair distribution of educational opportunity.
First, I will round out Anderson’s reform vision by adding the fiscal neutrality scheme
that she has endorsed elsewhere, and I will demonstrate how it complements and
promotes the integrative vision that she constructs in her Imperative.
In her 2007 article, “Fair Opportunity in Education,” Anderson offers a defense
of a scheme that would distribute educational goods, in the context of a liberal
democratic “real world” society, according to a robust adequacy standard. [Elizabeth
Anderson, "Fair Opportunity in Education: A Democratic Equality Perspective," Ethics
117 (July 2007): 595-622.] She would integrate K-12 schools to encourage interracial
communication and the production of culturally competent graduates. From
Anderson’s perspective, "much of the critical learning that elites need to undertake is
grounded in intergroup peer interactions out of class, not in formal in-class discussion
or class assignments." [614] Only a public school system that thoroughly grasps the
fact that pupils from highly diverse backgrounds bear valuable social funds of
knowledge and ensures that pupils from the most advantaged families are brought into
close contact with their less fortunate peers in virtually every classroom and
13
extracurricular activity can deliver the kind of collaborative education necessary for the
production of culturally competent democratic citizens. [ibid, passim]
For Anderson, public investment in higher education would have to be justified
in terms resembling the Rawlsian difference principle. Extraordinary public
investments in elite education are permissible but only as long as these programs are
operated fairly, and the resulting surplus ultimately benefits the worst off. Successful
applicants in higher education admission competitions would have to demonstrate, in
addition to basic scholarly merit, strong public service records and the multicultural
competence skills honed in fully integrated K-12 classrooms.[*ethics]3 Moreover,
children from the most disadvantaged families would not be treated with a “sink or
swim” attitude by the integrated schools. Teachers and principals would be tasked with
providing appropriate support services to deliver genuinely fair equality of
opportunity, such as special tutoring for the children of parents with low levels of
education who typically arrive at kindergarten with modest vocabularies and poor
communication skills.[ethics, imperative*]
It is crucial, in this sense, that Anderson both redefines merit to include
multicultural competence as well as traditional scholarly achievement, and only permits
merit-based competitions for scarce publicly subsidized educational opportunities at
the college admissions phase in the life course. Anderson clearly establishes that the
state and school district could not satisfy her integrative requirements by merely
producing demographically integrated student bodies in each school. The school must
bring individuals from diverse social groups together on terms of equality, rather than
domination and subordination.[ethics 612, note 31] Anderson would therefore have to
require equality of resources between the schools, and she would have to prohibit all
forms of “tracking” within each school. Each and every pupil, regardless of their
parents’ educational achievements and socioeconomic background, would have to be
meaningfully provided with the resources necessary for the preparation of a successful
college admission application.
For example, an Andersonian high school would not have distinct Basic and
Advanced Placement tracks through which racial and socioeconomic segregation lines
could creep back into the school’s hidden curriculum. [Noguera and Wing] Even if
consistent and across-the-board integration required the teaching of multi-level classes,
teachers would simply have to redesign their lesson plans accordingly. [Intl Schools,
NYC] Technically, we could say that Anderson envisions the endowment of each pupil
with a right to a college-preparation level of public educational resources, regardless of
her socio-economic background and her parents’ educational level. [note: children with
learning disabilities: individually tailored standard, according to the degree of their
personal potential; cite to case] Parents who observe the failures that are all too
common in our public schools today, such as class- and race-based segregation, vast
intra-district, intra-state, and inter-state differences in school quality, the assignment of
14
unqualified teachers to non-elite classes, the mis-diagnosis of under-performing
children as disabled, the abuse of suspension and expulsion procedures to artificially
boost a school’s test scores, and so on, [darling-hammond] would be empowered in
Andersonia to sue the district and the state for violating their child’s right to a decent
education.
In Imperative, Anderson remarks that justice requires more than the redistribution
of tax revenues from the most advantaged neighborhoods to the least advantaged, since
it entails the dismantling of residential segregation altogether.[186] We could not,
however, rely solely upon the production of racially- and economically-integrated
neighborhoods to satisfy Anderson’s standards. It is highly likely that we would still be
confronted by significant mismatches between local pupil needs and local resources.
Anderson implicitly anticipates this problem by building up a compound approach to
educational equity in “Fair Opportunity.” There she calls for all of the following: 1) the
desegregation of the schools, and the integration of all public school classroom
environments ; [ibid.] 2) the integration of neighborhoods through the prohibition of
class-exclusionary zoning laws, the rigorous enforcement of housing discrimination
laws, mandatory mixed-class housing requirements for private developers, and so on;
[ibid.] and 3) a state-wide fiscal neutrality formula for the calculation of local school
board revenues, along the lines proposed by Coons, Sugarman, and Clune.[618, fn 41]
To explain the significance of this compound standard, we have to review each element
in the school finance matrix.
Anderson implicitly retains the existing structure of school finance in which the
local district’s contribution to the school budget makes up about 42 percent of the total,
while the state contribution takes care of 50 percent and the federal government makes
up the remaining 8 percent. [g and d*] In our hypothetical, we will assume that the state
and federal contributions would be fairly calculated according to an equitable needsbased formula. In the United States today, the local school tax contribution is the
product of the value of the taxable property located in the district, and the local school
tax rate chosen and ratified by the local voters in school board elections.4 Under the
original fiscal neutrality scheme designed by Coons et. al., the local school board would
be free to set tax rate, according to the educational preferences of the local voters. Intrastate transfers between school boards would be made to ensure that each school district
taxing itself at a given rate would be able to raise a roughly equal amount of tax
revenues, regardless of the actual value of the taxable property.[Coons *] For the most
part, school taxes are levied upon residential property located in the district. In some
cases, the state also permits the local school district to impose school taxes upon local
commercial and industrial property owners as well. Given the richness and egalitarian
character of Anderson’s adequacy standard, she would have to introduce a few friendly
amendments to the Coons et. al. formula. Where Coons et. al. propose to leave federal
and state school spending untouched, Anderson would want to guarantee that these
15
distributions would be fairly calculated. At the local level, she would also impose a
mandatory minimum school tax rate such that no district could choose to make such a
low effort that it could not possibly deliver a decent level of educational opportunity.
At first glance, it might appear that Andersonia would not preserve the tripartite
school finance system. Would not Andersonia replace the local, state, and federal
contributions with a simpler state and federal system? Historically, the local
contribution has introduced a tremendous degree of inequity into the school finance
system. The state-wide coalition for race- and class- integration in Andersonia would
surely be a strong proponent of school equity. Would not the retention of local
differences in school spending be an anachronism? It is important to recognize in this
respect that Anderson permits parents to channel supplements above and beyond the
threshold level to their own children. These can be delivered through three
mechanisms: an above-threshold local taxation effort; parental purchase of tutoring for
children remaining within the public school system; and parental purchase of private
schooling for their children.
I will return to a discussion of the latter two supplements, the ones that involve
the private market in educational goods, below. Anderson anticipates, however, that
some local groups of parents will have such extraordinarily strong preferences for
above-threshold public school quality that they are willing to make a financial sacrifice
to secure this outcome for their children and their local cohort, and she values their
liberty to make this choice. [ethics 618] Within Andersonia, there would be some school
districts that would have above-threshold budgets, reflecting the formation of local
majorities willing to make extraordinary local school tax efforts. Inspired by a social
movement within the state, Philosophia, many of the taxpayers wishing to make
additional school tax efforts claim that they value the pursuit of knowledge for its own
sake, and anticipate that the pupils attending the above-threshold public schools will
have experience enhanced individual flourishing as a result. They predict that the
Philosophia schools will produce many more musicians, poets, and classicists, than the
threshold schools, for example. By retaining the tripartite school finance structure, in
which contributions come from local sources, as well as the state and federal
governments, Andersonia would guarantee the liberty of local taxpayers to produce
above-threshold educational opportunity in their neighborhood schools.
It may also appear that the fiscal neutrality formula, in all its complexity, would
become superannuated in Andersonia. Once the state achieved a reasonable degree of
residential integration, each district would include more or less the same amount of
taxable residential property. Since each district would be ordered to calculate its
minimum tax effort on a per pupil basis, each district choosing to make a threshold
effort should end up with the same amount of per pupil revenue. Only the Philosophia
districts would have different per pupil revenues at their disposal, and their higher
revenues will reflect important liberty interests and will not have unjust consequences.
16
Fiscal neutrality would nevertheless be needed in Andersonia for several reasons. Local
districts have traditionally made use of some parcels of non-residential property, such
as mines, as part of their school tax base, and they are not evenly distributed across the
state.
In addition, Andersonia would adopt the weighted student finance approach
that has earned overwhelming bipartisan support. [*] Instead of using a simple per
pupil method for calculating a threshold amount of school revenue, weighted student
formulae attend to both the total number of pupils and the representation, within that
student body, of special needs children: English-language learners, children with
disabilities, and pupils from very low income families. Children who are learning
English or who have learning disabilities fare best in small classes taught by specially
trained teachers. Some pupils with disabilities require additional aides and nurses. A
single pupil from a very low-income family also faces, on average, difficult challenges
at school. It is highly likely that her parents have relatively modest vocabulary and
mathematical skills, and that her base knowledge and academic expectations are more
limited than that of her more fortunate counterparts. Again, this is a special needs pupil
whose motivation and achievement typically requires access to smaller classes; highly
qualified and experienced teachers; after-school tutoring; support from school nurses,
social workers, career counselors, and so on. Studies also suggest that pupils engage in
a great deal of peer-to-peer teaching and learning. For this reason, experts agree that
achievement gains in the schools with the largest concentrations of children who qualify
for reduced or free lunches within their student bodies can only be delivered with
above-average spending on teachers and support service personnel. Under the
“weighted student” approach, co-efficients larger than 1 are assigned to each category
of special needs pupils. Where a school has an extraordinary concentration of low
income pupils, their co-efficient is adjusted upward.5
In addition, cost-of-living differences can play an important role in the teaching
market. If we establish the national average in the cost-of-living index as 100, Los
Angeles-Long Beach California has a score of 136.4. The scores for Brooklyn, New York;
Tupelo, Mississippi; and Detroit, Michigan are 181.7, 88.1, and 99.4, respectively.
[United States. Department of Commerce. Statistical Abstract. Table 728. Cost of Living
Index, Selected Urban Areas, Annual Average: 2010.] A dollar in teacher salary
expenditure goes further in Tupelo and Detroit than it does in Brooklyn; New York City
has to spend a great deal more than any other city simply to hire and retain averageperforming teachers. Experts also agree that of all the inputs, the provision of qualified
and experienced teachers outranks the others where student achievement is concerned,
that the more qualified and experienced teachers command the greatest salaries.
In Andersonia, we should have a rough equality in residential property value,
and we should not see too much variation in the representation of low income pupils
either by district or by school. However, it is unlikely that we will have perfectly even
17
distributions of pupils with disabilities and English-language-learners across the state’s
districts. Further, we might see some districts that have an above-average cost-of-living
and yet lack a corresponding above-average endowment in taxable property. Once we
calculate the fair threshold level of revenues needed by each district, using weighted
student finance methods and cost-of-living adjustments, there will be some districts
with significant mismatches between the school revenues needed to provide a threshold
level of educational entitlement and local taxable property value. If we want to preserve
the liberty rights and fairness of Anderson’s general theory, these morally arbitrary
elements will have to be smoothed out. The districts that would generate more local
revenues, if they chose a threshold tax effort, than they needed to deliver to a threshold
educational opportunity to their local pupils would have to pay the surplus into a
redistributive state fund. Those moneys would be paid out to the districts in which
student needs outstrip local school tax revenues, assuming a threshold tax effort. This
fiscal neutrality scheme would guarantee that the only differences in educational
opportunity across districts would reflect the local voters’ preferences for education
spending and school tax effort. No district would be allowed to fall below the revenues
needed to deliver a needs-based threshold level of entitlement. Among the districts that
chose to make an extra school taxation effort, their supplemental revenues would reflect
the degree of their extra effort. If, for example, fifty districts choose to make a 125%
school tax effort, then they would end up with school revenues that are 125 % above the
minimum, regardless of the value of local taxable property, and in terms that are
weighted to reflect their actual populations of special needs pupils and adjusted to
reflect local cost-of-living.
Andersonia: Gains for the least advantaged?
If we set aside, for the moment, the responses of the individuals who do not
belong to the least advantaged social sectors to Andersonia’s policies, it is immediately
evident that the least advantaged residing in the state would gain significantly from the
reforms. My claim in this regard has two distinct elements. First, the least advantaged
would benefit materially. Second, they would be endowed, under Anderson’s reforms,
with an enforceable state constitutional entitlement. Under the existing federal
constitutional doctrine, this entitlement would be highly significant.
The data strongly suggest that many of the least advantaged schoolchildren in
the United States are receiving a below-adequacy level of educational opportunity, and
that there are unjust differences in the distribution of public school resources closely
connected to wealth, income, race, and state residence. Two of the proxies used by
educational experts to measure educational opportunity are student outcomes and
resource inputs. International data indicate not only that United States’ public school
students are not keeping pace with their counterparts in the OECD countries, but that
18
American whites and Asian-Americans earn average scores that are well above the
OECD average, while the ones for Latino/a and African-Americans fall an equal
distance below that mark. [d-h 11. On the 2003 PISA (Program for International Student
Assessment) in reading, for example, the average score for white American pupils was
525. OECD pupils scored 483 on average, while the scores for Hispanics and blacks
were 453 and 429 respectively. Ibid.]
There is tremendous interstate variation in proficiency standards and student
achievement. (see Appendix I) In sixteen states, the proficiency rate was below 35
percent in Grade Four mathematics in 2005. Two of those states, Mississippi and New
Mexico, failed to bring 20 percent of their pupils up to the national proficiency level.
Moreover, there is a gap of about twenty percent between the highest and lowest states
where the proficiency standard is concerned. The publicly circulated data, however,
suggest much better levels of achievement. The state governments are permitted, as
part of their extraordinary autonomy in educational affairs, to set their own proficiency
standards. In forty-eight states, the proficiency level has been set at such a low level that
their schools appear to be performing well. In three states, Mississippi, Alabama, and
Tennessee, the national proficiency standard was more than three times stricter than the
state standard. Mississippi ranked 79 percent of its students as proficient or better,
under its own testing standards, while only 18 percent achieved a proficiency score or
higher on the national test.
The consensus in the scholarly literature is that a highly qualified and skilled
teacher is one of the most important inputs where student achievement is concerned.
[dh] This is not to say that the socio-economic conditions of the student body are
irrelevant. Children who enjoy good housing, stable and loving caregiving, basic health
care, eat a decent diet, and have their hearing and eyesight tested and adjusted as
necessary are much more oriented towards success at school than their less fortunate
counterparts. [bolder is better: ladd, Rothstein et al*] Much of the governmental reforms
necessary to secure or at least bolster these pre-conditions, however, fall under the
jurisdiction of other agencies. In addition, studies have also found that even the
children who are dealing with deficiencies in the school “surround” can improve their
academic performance if they are brought into a good teacher’s classroom [d-h, cfe II, nj
case] If we assume that the school district is competently managed, any significant
change in revenue will be translated into corresponding decisions about teachers’
hiring, promotion, and salary. Moreover, strong teacher preferences — all things being
equal, teachers overwhelmingly prefer positions in the schools and classrooms in which
white, wealthy, and high scoring students are in the majority — place even greater fiscal
pressure on the districts serving struggling students. One recent study found that the
salary increase needed to retain high quality teachers in schools serving the
disadvantaged could be greater than 50 percent. [Ladd and Loeb, in Allen and Reich, 6]
To hire the most qualified and most experienced teachers, school districts must offer
19
above-average salaries; by the same token, the districts that can afford to pay only the
lowest salaries must settle for the least qualified teachers with very little experience or
none whatsoever. [Ladd and Loeb, in Allen and Reich,5- 6 [chnge pg with galleys]]
Using simple per pupil spending data, Moser and Rubenstein found that there
was some improvement in intrastate spending equity across districts between 1992 and
1995. [Michele Moser and Ross Rubenstein, “The Equality of Public School District
Funding in the United States: A National Status Report,” Public Administration Review,
62: 1 (Jan./Feb. 2002): 63-72.] They also show that the states in which the state
contribution made up the greatest proportion of district revenues — as opposed to the
property-value oriented local contribution — generally provided a more equitable
distribution of resources across their districts. Across the country, the state school
finance schemes remain heavily biased in favor of property-wealthy districts; once
again, this finding is especially significant given the fact that federal contributions make
up only eight percent of school public spending. [*] A federal government report found
that in thirty-seven states, there was a positive relationship between school spending
and local income in the 1991-92 school year. [HI, one district, not included] [GAO, see
below] The disparity remained even after adjustments were made to reflect the cost-ofliving and students’ educational needs. On average, wealthy school districts were able
to spend 24 percent more on a simple per pupil basis. In calculating the contributions to
local districts from the state budget, state governments were targeting additional funds
to poor districts. Although these state contributions diminished the local property-value
based inequalities, they did not eliminate them altogether. [United States. School
Finance: State Efforts to Reduce Funding Gaps Between Poor and Wealth Districts.
(Washington, D.C., 1997).) (see also Duncan, Greg and Murnane, Richard. Whither
Opportunity: Rising Inequality, Schools, and Children’s Life Chances, New York: Russell
Sage, 2011.)]
Taking a longer view, Ladd and Loeb estimate that intrastate variation across
districts in spending has been “reduced substantially in the past 40 years, largely as a
result of school finance reform and property tax reform.” [5, Allen and Reich, chng pg
galley, see also Corcoran and Evans, Loeb Handbook * more detail] Even with these
improvements, intrastate variation, as well as intradistrict and intraschool inequities
remain salient. [*Corcoran and Evans] Meanwhile, significant interstate differences also
impede the achievement of educational equity. Ladd and Loeb note that the differences
in K-12 public education spending across the states are larger than the variations across
the districts within each state. [5, ibid.]
Rodriguez: Is There a Federal Right to Education?
20
State constitutions can have entirely redundant provisions; if the state equal
protection doctrine is defined by the state court as having essentially the same meaning
as the federal doctrine, then it does not contribute to the legal empowerment of the least
advantaged. Of course, the state court cannot offer an interpretation of the state
constitution that would purport to permit the state to infringe upon federally
guaranteed rights. However, in some cases, such as the right of same-sex couples to
enter into a legal marriage, some state courts have interpreted their state constitutions
generously, thereby endowing their residents with more robust rights than they would
have if they had to rely upon the federal constitution alone.(ref. to Mass decision)
To examine whether Andersonia’s right to education would substantially
empower the least advantaged individuals residing in the state, we must compare this
provision to the existing federal doctrine. The claim that justice requires the delivery of
an adequate level of educational opportunity to pupil, regardless of the value of the
taxable property located in that pupil’s district, formed the core of the plaintiff’s case in
San Antonio v. Rodriguez (411 U.S. 1 (1973)). A group of parents with children attending
public schools in the Edgewood Independent School District in San Antonio, Texas sued
the state of Texas in district court in 1968. Their lawyers argued that the state education
financing system violated their equal protection rights and their fundamental
substantive due process right to education. The Supreme Court's Rodriguez decision was
handed down in 1973. The Court held, in a 5-4 split, that the federal constitution does
not include a fundamental right to education; that although there were great inequities
in Texas’s school funding system, the system’s division of children according to the
property wealth of their districts did not constitute a suspect classification; that the
system therefore had to be reviewed under the Court’s most deferential rational basis
standard; and that because the system promoted the permissible objective of local
budgetary control, and was reasonably tailored to achieve that purpose, it was not
unconstitutional.
At the time of trial, Texas’s schools received the lion’s share of their funds from
state and local sources; these contributions made up roughly fifty and forty percent of
their revenues, respectively. Federal grants moneys were distributed in a heavily
redistributive manner, but at ten percent of the total, they could not make that much of
a difference. (J. Marshall, dissenting, Rodriguez, 73, 76.) Edgewood, an inner-city
district with a total enrollment of 22,000 students, contained very little commercial or
industrial property. The value of a typical residential home in the district was quite
modest.6 Edgewood had the lowest median family income and the lowest assessed
property value per pupil in the entire San Antonio area: $4,686 and $ 5,960 respectively.
The local Edgewood voters had nevertheless imposed an extraordinary school tax effort
upon themselves. Their school tax rate of $ 1.05 per $ 100 of assessed property was the
highest in the area that year. Even with this extraordinary effort, however, the local
homeowners were only able to produce a modest amount of funds. Expressed on a
21
simple per pupil basis, the local portion of Edgewood’s funds amounted to $ 26. The
state contributed $ 222 per pupil. Federal funds of $ 108 accounted for more than 30
percent of the total, $356 per pupil. (pg *)
The plaintiffs argued that the Texas legislature was essentially forcing the
Edgewood district to rely very heavily on its local sources of revenue for its school
funding. Given the modest value of the local taxable property, the Texas scheme
effectively trapped the Edgewood pupils — that is to say, the children obliged by the
socioeconomic circumstances of their parents to remain within the public school system
— within schools that were grossly unequal in resources when compared to their
counterparts in other Texas neighborhoods. Eventually, when these pupils graduated
from their inferior high school, they would nevertheless have to compete with the more
advantaged members of their cohort for scarce higher education resources, employment
opportunities, and political clout.
The plaintiffs tried to emphasize the positional disadvantage of the Edgewood
pupils by drawing the attention of the federal court to the Alamo Heights school
budget. Alamo Heights was an affluent San Antonio area district.7 There, the median
family income was $ 8,001, and the assessed property value per pupil was more than
$49,000. The local voters had endorsed a much less severe school tax rate of $ 0.85, but
because the value of the district’s taxable property was relatively high, Alamo Heights
was nevertheless able to collect $ 333 per pupil for spending on its own schools. The
state contributed $ 225 per pupil, for a local-state subtotal of $ 558 per pupil. The state
allocation formula emphasized each district’s teacher salaries; because the teachers in
Alamo Heights had more years of experience and more advanced degrees than their
counterparts in Edgewood, the state paid Alamo Heights a substantially higher grant
on a per pupil basis.(Note 35 at 14) Additional federal funds of $ 36 rounded out the
total for Alamo Heights school revenues to $ 594 per pupil. (pg *) Statewide research
found a correlation of 0.973 between the market value of taxable property per pupil
and the sum total of state and local revenues per pupil. [Rodriguez, J. Marshall,
dissenting, Note 11, at 75.]
The funding differences, argued the plaintiffs, were having a devastating
impact on educational quality. In Edgewood, almost half of the teachers were not
fully certified; many were teaching in the schools even though they held only the
minimal “emergency” permit. Only 15 percent of the teachers had obtained a
master’s degree in education. The Alamo Heights schools, by contrast, boasted a
teacher certification rate of almost 90 percent. Thirty percent of their teachers held
a master’s degree. [51 PSr?*]
Throughout the decision, the Rodriguez Court expressed its strong
skepticism about the existence of a causal linkage between low education spending
22
and the deprivation of educational opportunity. [23-4, 42-3, Note 56 at 24, and
Note 86 at 43.] Granting for the sake of argument some causal linkage, the Court
distinguished Rodriguez from previous cases in which it had struck down laws that
effectively discriminated against the poor.8 The plaintiffs had failed to show that
the classification effectively deployed by the Texas legislature through its school
finance scheme closely resembled the indigent classification that had commanded
enhanced review. It was possible, the majority reasoned, that some middle-class
pupils resided in low property value districts. Moreover, the previous cases
involved an “absolute deprivation of a meaningful opportunity to enjoy [some
desired benefit.]” [20] The Court held that even if the relatively quality of their
education suffered as a consequence of their districts’ relatively lower budgets,
“the Equal Protection Clause does not require absolute equality or precisely equal
advantages.”[24] It pointed to its “historic dedication to public education,” and
acknowledged the “importance of the [educational] service performed by the
State.” [30] It nevertheless held that there was no fundamental right to education
explicitly or implicitly contained within the federal constitution.[35]
The plaintiffs had argued, in part, that the federal courts ought to recognize
education as a fundamental right, and that they should, therefore, review the Texas
school funding statute under its most searching type of inquiry, because access to
educational opportunity is an indispensable precondition for the effective exercise
of the First Amendment liberties and the federally protected right to vote. On this
reasoning, the plaintiffs reasoned, the right to education was both implicit in the
federal constitution and deserved fundamental status. [35] The Court’s reply to this
argument was devastating: the constitution does not grant the individual a right to
exercise “the most effective speech or the most informed electoral choice.” [36]
Persuasive speech and intelligent voting may be desirable goals in themselves, “but
they are not values to be implemented by judicial intrusion into otherwise
legitimate state activities.”[36] Under the present system, the Court reasoned,
every child in Texas enjoyed the opportunity to “acquire the basic minimal skills
necessary for the enjoyment of rights of speech and of full participation in the
political process.”[37]
Applying the deferential rational basis review to the statute, the Rodriguez
Court held that the Texas school finance system furthered a permissible
governmental objective and employed means that are rationally related to that
purpose. The statute preserved and promoted the “local sharing of responsibility
for public education.”[49] The localism of the Texas’s education revenue
23
collection system, the Court wrote, had three specific merits. The system
encouraged local voters to keep watch over school expenditures, and permitted
experimentation in school policy. Because local school board voters could see their
preferences for educational effort translated directly into school spending that
would benefit their own children, the system also had the virtue of enhancing
parental liberty rights. The Texas system, stated the Court, gave the state’s parents
“the freedom to devote more money to the education of one’s children.”[49]
Rephrased in political philosophy terms, the Supreme Court decided that
parental partiality towards one’s own children is not only permissible but
constitutes the basis for an important liberty interest of parents, and that the most
advantaged parents of Alamo Heights ought to be free to express their partiality by
exchanging material wealth for desirable educational opportunities and by
channeling those goods exclusively towards their own children. Beyond its dicta
applauding Texas for the provision of a minimal education to all children, the
Court is silent on the obligation of the Alamo Heights parents to make
countervailing material contributions to support Edgewood’s public schools. The
Court implicitly affirms the fact that these transfers undermine the positional value
of the public share held by less fortunate children and yet endorses them at the
same time. Moreover, the Court is holding that the most advantaged parents should
not have to exit the public school system altogether, by sending their children to
private schools or purchasing tutoring services, in order to give material expression
to their partiality. For the Court, the right to participate in a public school system
that is exquisitely designed as a vehicle for the delivery of these transfers and the
realization of educational advantage for the most advantaged children is integral to
the parental liberty interest.
There is substantial archival evidence, discovered by Sracic,[*] that the
Rodriguez Court took great care to include this reference to parental partiality and
the intra-familial reproduction of material advantage through wealth-biased public
school finance schemes. Justice Lewis F. Powell, Jr., the author of the Rodriguez
decision, had served several terms on the Richmond School Board and the Virginia
Board of Education before he was appointed to the Supreme Court by President
Richard Nixon in 1972. [Sracic, 64-5] Powell shared his concerns about the case
with his clerks after the three-judge court conducted a trial and handed down a
decision in favor of the plaintiffs. If the plaintiffs’ prevailed before the Supreme
Court, Powell he asked his clerks, would the victory send the entire country down
a slippery slope, from the impositions of mandatory intra-state equality standards
to interstate equality rules as well? By extension, would this development
introduce centralized control and the federalization of the traditional state and local
prerogatives over the public schools? [66, 71 *note fed Dept of Edn not estab until
24
Carter, then seen as the poster child of excess federal power by the right etc]
Echoing a belief that was arguably predominant among experts at the time, [*note:
Coleman rept] Powell did not endorse the idea that there was a linkage between
school finance and the quality of educational opportunity. [67] It was not until the
early 1990s that substantial bipartisan support was achieved for the proposition that
well-managed school systems serving school children from modest economic
backgrounds can be significantly improved through increased investments,
especially where the hiring of qualified and dedicated teachers and the organization
of small-sized classes in the earliest grades are concerned. [rebell] Powell was also
worried that a redistribution of resources would hurt some of the urban districts
serving low-income students that had gained access to relatively rich taxable
property. Because the school finance methodology used in the case was so crude
— its simple per pupil basis made no adjustments for the high salaries needed by
the high cost-of-living urban districts to attract even moderately qualified teachers,
and it absolutely failed to build in student needs-based weightings for the
education of low-income children, pupils with disabilities, or English-languagelearners — Powell could logically conclude that a win for Edgewood’s Latinos
could come at the cost of the low-income whites and blacks who were already
struggling in their urban schools.[67-8, 71, 97]
The historical documents also suggest, however, that Powell brought a Cold
War interpretive horizon to the case. In the late 1950s, he traveled to Moscow on a
tour organized by the American Bar Association. Upon his return, he wrote a
report on the Soviet education system and became a passionate champion of the
American education system as a vehicle for the promotion of individual liberty.
[66] The specter of communism had already been raised at trial by the State of
Texas. Pat Bailey, Assistant Attorney General, questioned at least two witnesses
during the deposition phase about the linkage between “socialism” and the
egalitarian school finance schemes that they supported.[53] Bailey
mischaracterized the plaintiffs’ preferred remedy as absolute equality at trial. The
plaintiffs had actually endorsed a Coons et. al.-style system of fiscal neutrality that
permitted each district to select its school tax rate without state interference. Bailey
claimed that “they [the plaintiffs] want the same amount spent on every child; this
is socialized education.”[58] His position was supported by Ralph Langley, the
counsel for North East Independent School District. Like many other property-rich
districts, North East Independent was anxious that its school budgets would be
trimmed if the plaintiffs prevailed; the trial court permitted North East Independent
and several other property-rich districts to participate in the case as amicus curiae.
Langley injected a further note of urgency. He stated before the trial court that the
plaintiffs were seeking absolute equality in education, and that if their principle
25
were taken to its logical extreme, the state would have to eliminate interdistrict
inequalities in school spending. Langley further speculated that if the plaintiffs’
(alleged) principle of absolute equality became the federal standard, then the state
might be ordered in turn by the federal government to dismantle its private
schools.[59]
During oral arguments, Chief Justice Warren Burger returned to these
themes. He posed a rhetorical question for the plaintiff’s attorney: why should one
state have better schools than another? The lawyer conceded that the principle of
school equality across the nation might be an attractive one when considered as a
“moral argument.” The Chief Justice sprang the trap: the plaintiffs’ “argument
would apply with equal force whether you call it ‘moral grounds’ or ‘totalitarian
philosophy.’” [J. Burger, oral arg., Rod., quoted in Sracic, 89] Later, in conference,
Judge Harry Blackmun said that it would be “safer” if the Supreme Court left the
states alone to deal with school finance issues. He further speculated that a Court
mandate for equality in educational opportunity “would be another step towards
big government.” [J HB, quoted in Sracic, 96]
The tradition of granting local governments control over the schools in the
United States dates back to the colonial and revolutionary period; Jefferson
regarded the operation of a local school as an essential dimension of the ward’s
responsibilities, and envisioned merit-based scholarships for the higher education
of freeborn boys from low-income families. [*] For Powell, however, local control
meant more than an entirely salutary community involvement in curricular matters;
local control meant that the defense of liberty, American-style. Freedom, from this
viewpoint, requires that the most advantaged taxpaying parents should enjoy the
governmental ratification of their desire to settle in income-segregated
communities like Alamo Heights. Moreover, the fulfillment of their liberty
interests also requires the state government to furnish public school finance
mechanisms designed to serve their self-regarding interests. During conference
deliberations with the other Justices, Powell wrote a note to himself, “To hold that
wealth is suspect … is a communist doctrine but it is not even accepted (except in
a limited sense) in socialist countries.” [J LP, quoted in Sracic, 96] The state’s finetuned public school finance scheme must ensure that at least a significant part of
the family’s school taxes could be used for the elevation of the positional standing
of the children of the most advantaged parents. Given the Cold War framework
that Powell brought to the case, this was a strictly either/or question; the defense of
liberty rights adequate to the “free world” required the decisive defeat of the
Rodriguez plaintiffs’ arguments across the board.[fn /j lp : ltr to clerk PS 112*]
The Rodriguez holdings are widely regarded as virtually unassailable, at
least for the foreseeable future. [fn*] Under Rodriguez, there is no fundamental right
26
to education; there may not be a federal right to education at all. If there is a right to
education, it is not itself important enough to command an elevated level of judicial
scrutiny in the federal courts, and it endows the individual with an entitlement to a
very low level of adequate resources, such as bare literacy. The federal government,
through Congressional spending, may choose to offer conditional education grants to
the states, but there is no requirement for it to do so. With Rodriguez, the Court closes
the door to the federal courts for children residing in property-poor districts who seek
fair equality of educational opportunity in comparison to the more fortunate members
of their cohort in their state’s property-wealthy districts. The same is true for plaintiffs
who might want to make equal protection claims related to interstate inequalities in
educational opportunity. From a federal constitutional perspective, the decision by the
state to provide a single dollar in public education spending remains entirely a state
prerogative. If the state does opt to provide a public education system, it must do so
without committing de jure forms of racial and gender discrimination.(Brown, VMI, CR
Act, Title IX) But it is not at all clear that if a state decided to abandon the project of
public education altogether, aggrieved children and their parents could turn to the
federal constitution for legal support.
In the United States, the right to education is explicitly established only in the
state constitutions.[ref] The public interest litigation relating to the state educational
entitlements has proven to be a complex, expensive, and state-specific process in which
morally arbitrary variables, such as the political composition of the state court, play far
too great a role. [ref: Reed] Where low-income plaintiffs have enjoyed some success in
suing the state for failure to provide an equitable or adequate education, in violation of
their state rights, there has been some decrease in intra-state inequalities across
districts.[Labb and Loeb, 5, chg pg galleys; Moser and Rubenstein 64, Reed, pg *;
Walters, P., In Search etc *] Enforcement has varied according to even more intractable
and morally arbitrary factors, such as the political configurations in the executive and
legislative branches of state government and fiscal conditions.[Walters, P.] Considered
in this light, Anderson’s reforms would represent a significant improvement in the
educational opportunities for the least advantaged Andersonians in constitutional
terms. Lacking a federal right to a meaningful level of threshold educational
opportunity, they would value their enforceable entitlement under Andersonia’s
constitution all the more.
Allison’s Contact Theory and the Enhanced Resources of the Least Advantaged
So far, we have set aside the responses of the individuals who do not belong
to the least advantaged social sectors to the Andersonian reforms. Once we
introduce their reactions, however, the outcomes cannot be predicted with perfect
27
certainty. On the positive side of the ledger, we have the accounts, ones that are
noted by Anderson herself, of salutary outcomes from integrated housing
experiments and the evidence suggesting the validity of Allison’s “contact theory.”
** Gautreaux ** housing voucher experiment: positive outcomes;
** Allison contact theory ** “under conditions of equality” condition;
relying upon psych and soc research fn ** hostile groups can become more
cooperative if brought into contact under conditions of equality >> Anderson
assumes that there would be more communication and understanding between
most advan and least advan
** least advantaged benefit in immediate sense from enhanced educational
opportunities; segregation gives them potential access to enlarged social networks,
improvement in socio-cultural capital, etc.
Berkeley High School: The Retention of Race-Based Tracking in a Progressive
School District
** Noguera and Wing ** stubbornness of segregation even in Berkeley, CA
Philosophers or Gekkos*? The Long-term Effects of Permitting AboveThreshold Local Tax Efforts
[*ref. to film: Wall Street, Gordon Gekko, played by Michael Douglas]
Across Andersonia, the formation of the Philosophia districts would have
significant effects. Some of the Philosophia voters would be genuinely motivated by the
prospect of enhanced individual flourishing for the local schoolchildren; they sincerely
look forward to the possibility that their district will produce more philosophers, ballet
dancers, sculptors, medieval historians, and chess players as a result. Anderson herself
would not see the emergence of a few Philosophia-dominant school boards within the
state of Andersonia as a moral problem. Assuming a reasonable level of school
management competence, it is likely that the pupils graduating from the especially
well-financed public schools in the Philosophia districts will have access to an abovethreshold level of educational opportunity. Anderson would point out that this
outcome would not be discriminatory, and that the least advantaged would benefit in
the end from the resulting enhancement of the goods and services that they receive.
28
[ethics, pg*] The statewide principle of fair equality of opportunity, requiring the
provision to pupils who are coming from disadvantaged families of compensatory
supports, such as counseling, tutoring, after-school programs, school nursing, eye and
hearing tests and follow-up treatment, free meals, casework, and, in severe cases of
need, public housing and poverty assistance benefits, and so on, [*] would apply in the
Philosophia districts as well. Pupils from all walks of life would receive a decent chance
to thrive and achieve in the Philosophia district’s above-threshold schools. State-wide,
there should be a tremendous reduction in the previous relationship between school
achievement and factors such as race and parental income. Andersonia should outpace
the other states where the achievement of a more demographically balanced
representation of African-Americans and students from low-income families among the
state’s public school high flyers is concerned. Andersonia’s best students would achieve
their top results largely because of their above average levels of talent and effort, rather
than morally arbitrary characteristics. During the first few market cycles, we would
probably see a significant trend towards similarly balanced representations within the
top-tier student groups within the Philosophia districts as well.
Moreover, Anderson would expect that all of the top performing students
graduating from the state’s high schools would be endowed with greater multicultural
and cross-class sensitivity, thanks to the integrated nature of their classes, schools, and
neighborhoods. Crucially, she further assumes that the zoning and school policies
would inculcate the formation of an elite youth cohort that is more disposed to engage
in socially useful careers than their counterparts in other states.[fn ethics 9] She believes
that the imposition of social justice-oriented service requirements upon the applicants
for admission to higher education institutions would complement integrative policies.
Together, these reforms are supposed to encourage the formation of a highly
cooperative and integrated elite whose members seek fulfillment through careers
oriented toward the delivery of socially useful services to the least advantaged in a
multiculturally sensitive manner. For example, she assumes that the best and brightest
graduates from her reformed higher education institutions would be much more likely
to aspire to careers as general practitioner doctors in public clinics rather than as hedge
fund managers. [fn ethics] She concludes that it is just for the state to support these high
flyers’ education since the least advantaged would ultimately benefit from their
enjoyment of advanced educational opportunities.
We should also note that the members of the Philosophia movement might be
fairly diverse, at least at the time of the state’s founding. School finance data, such as the
evidence related to the Rodriguez case, suggest that many of the voters residing in lowincome and majority Latino/African American school districts in the United States
strongly value education. Like the residents of Edgewood, they are willing to make
above-average school taxation efforts.[rod, pg *]
29
Because they are subjects in a “real world” case, however, we should expect the
residents of the state of Andersonia to exhibit the rationality that is already familiar to
us. Like their counterparts in other states, each individual in Andersonia normally
prefers more primary social goods, like income and wealth, rather than less. The typical
Andersonian has a coherent set of preferences between the options that are open to her.
She ranks these options according to her anticipated returns from each one. More
generally, she adopts the rational plan of life with reference to two major factors. First,
she favors the plans that are most likely to render the greatest possible enhancement of
her well-being return. Second, she gives high points to the ones that seem to be feasible
and are most likely to be successfully executed. [Rawls, TJ, 123-4] In “real world”
conditions, an individual endowed with a greater share of resources will take the good
of herself and her family into account first and foremost. If she possesses a superior
share of resources in comparison to her counterpart in a market exchange, for example,
she will seek to establish a superior bargaining position over others.[JAF, 7] Based on
her knowledge and beliefs, her desires and interests, the array of options available to
her, and her anticipation of returns from each one, she makes decisions in order to
maximize gains and minimize losses. [JAF 81]
On an aggregate level, when economic and social inequalities become significant
in a “real world” society, they will tend to give rise to political inequality in turn. [JAF,
131] The bases of political power are information, educated skills and intellectual
capacities, property, and the ability to engage in strategic cooperation necessary for the
formation of relatively stable interest groups. The individuals who accumulate superior
shares in these bases of power are overwhelmingly disposed towards the formation of
elite factions. These factions promote their members’ interests by gaining “control over
the machinery of State, [and] enact[ing] a system of law and property that ensures their
dominant position in the economy as a whole.” [Rawls, JAF, 131]
To satisfy Anderson’s feasibility requirement, I will assume that the majority of
the individuals belonging to the most advantaged socio-economic group sincerely
endorse their state’s integrative approach to neighborhood zoning and schools.
However, since they are rational actors, in the sense specified above, they seek the
accumulation of goods over several market cycles. Under more ideal circumstances,
they would be both rational and reasonable; they would be “ready to propose, or to
acknowledge when proposed by others, the principles needed to specify what can be
seen by all as fair terms of cooperation.”(Rawls, JAF, 6-7) They would accept that they
would be bound by these fair terms, even when it meant that they would have to forgo
the pursuit of their own gains, as long as their counterparts honored them as well. (ibid,
7) It is rational, however, to refuse to engage in these reasonable practices when the
individual finds herself placed in a society structured by unjust institutions that are so
basic that they cannot be avoided. A society with insufficiently regulated market
institutions — in this case, a society that lacks upper salary caps, a robust capital gains
30
tax, and a 100 percent estate tax — would have an unjust basic structure. In this context,
it is rational for the individuals endowed with above-average shares in the bases of
power to take advantage of their situation.(ibid.)
The most advantaged in Andersonia would appreciate the fact that their state’s
intervention in the market is limited to the guarantee of an adequate level of basic
goods necessary for the realization of core capabilities, and that the well-educated,
hard-working and talented individuals who performed the work most valued in the
labor market would be offered the greatest salaries. There would be no limits to salary
inequality, as long as a living wage was established as the state minimum pay rate.
Andersonia would lack a robust capital gains tax and it would not have a 100% estate
tax. These checks on inequality would not be unconstitutional; theoretically, a majority
of voters could press successfully for their adoption through the normal political
process. It would not, however, be rational for the most advantaged to support these
market interventions; almost all of them would exploit their superior bases of power to
block any reforms of this nature.
As each young adult enters the labor market, her position with respect to
educational achievement — relative to the other members of her cohort — will
determine her entry salary level and life-long earning prospects. Assuming an open
social system in which careers are open to talents, the salary rewards will be greatest for
those holding the credentials commanding the highest value in the labor market. Still
deeply motivated by a selfish desire to accumulate income and wealth over each market
cycle, the ambitious parents of talented children would undoubtedly strive to position
their children in the most favorable manner in order to promote the cross-generational
formation of family wealth. Andersonian policy will not, in all likelihood, be oriented
towards the decrease in inequality or even the preservation of the existing levels of
inequality. Morally arbitrary contingencies will change the distribution of assets from
that established at the state’s founding. [Rawls TJ 62-3, on the system of natural liberty]
The pupils fortunate enough to be born into a family residing in a Philosophia district
will have much better life chances than the members of their cohort in other districts
who have similar endowments of natural talent and come from comparable family
backgrounds, where income, wealth, and parental education are concerned. They will
be more likely to finish high school, gain admission to college, command higher
salaries, and accumulate capital that can be passed along to their children, thanks to
their enrollment in a Philosophia district school system.
If it suited their tactical needs, the Philosophia parents might pay lip service to
ideals such as individual flourishing and public service-oriented careers. For the most
part, they would do so insincerely, since, in a non-ideal society like Andersonia, it is
rational to mimic reasonableness while actually prioritizing acquisitive rationality.
[Rawls, JAF, 7] Perhaps a few Philosophia parents would deviate from market values
and encourage their children to grow up to become poets, knowing that they can
31
always fall back on Andersonia’s guaranteed minimum income. It is inevitable, as well,
that a certain proportion of children in virtually every district will rebel against their
parents and pursue lifestyles through which they will express values bearing very little
relationship to their parents’ beliefs. In most of the Philosophia families, however,
parents will encourage their children to take full advantage of the above-threshold
educational opportunities available to them and to prepare themselves for the
competitive pursuit of careers in which income and wealth accumulation will be given
priority over public service for its own sake. Some parents will do so out of a frankly
expressed ambition for to get ahead. Others will be more ambivalent, but will grasp that
their children will be placed by the insufficiently regulated market institutions in a
prisoner’s dilemma. Since they cannot rely upon others to engage in social cooperation
on fair terms, they will have to urge their children to compete to win in order to hedge
against their getting squeezed out in college admissions, hiring decisions, promotions,
and all the other major competitions related to material gains.
Andersonia's mandatory integration of neighborhoods and schools would ensure
that there would be a significant degree of fair equality of opportunity in at least the
first market cycle in the Philosophia districts. If we divided all the schoolchildren in the
state according to different levels of native talent, on a scale of 1 to 10, with 10 being
highest, integration would reduce the differences in life chances among the children
belonging to each native-talent rank, regardless of race, parental income, and parental
education.10 Outside Andersonia, bright and eager black children from rank 8 who
come from low income families would have much more modest chances of success in
school and in the labor market as an adult than her white counterparts in rank 8 from
high income families.[Rawls, TJ, 63, etc.] Within Andersonia, mandatory integration
would lift up the conditions of the worst off. In each integrated neighborhood, the
political power of parents from all races and walks of life would be pooled together.
White middle-class and wealthy parents would not tolerate failing schools and would
press for the delivery of threshold-level educational opportunity, and their less
fortunate neighbors would benefit since they would be enrolling their children in the
same schools. Indeed, because classes, extra-curricular activities, schools, and districts
would have roughly the same degree of integration, there would be an enhancement in
the equal distribution of parental political power and local tax bases across the states.
The least advantaged residing in districts across the state would also enjoy the peer
teaching/learning effects from mixing with more advantaged pupils in their classes and
schools as well. Given the fact that the vast majority of the parents in Andersonia are
pro-integration, the most advantaged parents would willingly share their inside
information on college preparation and career choices with their less advantaged
neighbors.
In the first instance, then, the least advantaged residing in every single district
benefit absolutely from the introduction of threshold-level educational opportunity,
32
especially insofar as Anderson has set her threshold at such a rich level. Because
integration, in the first moment, delivers some degree of equalization, the least
advantaged also benefit in a relative sense. Inequality was greater before the reforms;
the lifting of the least advantaged to the high threshold level immediately diminishes
the gap between the best- and worst-off. The positional value of their education is
enhanced for the moment, as the least advantaged eagerly seize upon their enhanced
share and become more competitive in the college and job markets.
The progress towards the equal distribution of educational resources achieved by
Andersonia in its founding moment may not be sustained, however, over subsequent
market cycles. Once we control for native-talent ranking, we would probably find that
in the state-wide markets for college places and job market positions, the Philosophia
graduates would outperform their counterparts. As a result, the relative value of a
threshold entitlement would decline. The long term implications would be
indeterminate.
We might see, for example, the emergence of a formidable social movement for
radical egalitarian reforms. Perhaps the least advantaged in the threshold and
Philosophia districts will find inspiration for further social change in their state’s
integrationist discourse. Moreover, Anderson clearly endorses the integration of
democratic and pluralist ideals into the school curriculum. Instead of a narrow
vocational orientation, her reformed schools would integrate teaching designed to
promote the “virtues, knowledge, and skills necessary for political participation.”
[Gutmann, dem edn, 287.] Going well beyond a “3Rs” approach, and rejecting rote
learning designed to improve standardized test scores, Andersonian schools would
have age-appropriate and effective lessons on racial nondiscrimination, multicultural
history, problem-solving and communication in complex social settings, respect for
others, responsible deliberation on controversial subjects, and liberal democratic
constitutional principles — including free speech, religious toleration and freedom of
conscience, due process, and equal protection. [ibid., 287- 309] Through their improved
educations, the least advantaged would, in all likelihood, become more articulate, more
knowledgeable about market competition, and more politically savvy. They could also
become more capable at grasping their relative disadvantage, recognizing their
collective interests in solidarity, and organizing community members to engage in mass
protest.
If Andersonia could preserve its reformed public school system long enough —
against the inevitable forces of resistance and backlash — to bring an entire rising
generation of the least advantaged through the greatly enhanced K-12 schools, and to
train a whole new cohort of diverse elite professionals in scholarship-supported higher
education institutions, and if a substantial proportion of these upwardly mobile
individuals could be persuaded to adopt and maintain commitments to integrationist
political values, then Andersonia might give rise to a progressive vanguard and a
33
significant radical egalitarian social movement.11 That radical democratic vanguard
might be able to recruit a significant number of the more advantaged blacks and at least
a handful of middle-class and wealthy whites as well. [linked fate and black voting
across class divisions; wealthy CT voters voting against pocketbook interests]
Moreover, the whole field of expectations among the least advantaged, especially lowand moderate-income blacks, would be transformed by the successful introduction of
the Andersonian reforms. It is highly likely that they will exhibit considerably more
optimism regarding their future prospects for upward mobility and political efficacy in
this context. [McAdam, Pol Process, 108-110] The original demands for eliminating
racial inequities came from African-American thinkers, leaders, and ordinary
community members; the founding of Andersonia and the formation of a cross-class
and cross-racial consensus firmly endorsing integration would probably be regarded by
many blacks as a tremendously inspiring and redemptive achievement. Measured
against previous anti-racist reforms, such as the desegregation of public schools in the
South in the latter half of the twentieth century, the strong commitment of the state’s
central institutions to integration would be remarkable. Instead empty promises, delay,
and vicious backlash, Andersonia would offer African-Americans and their white
liberal allies a historic model of responsiveness and commitment. Political science
research has demonstrated the enormous potential of a new social entitlement to
encourage civic-minded volunteerism and voting participation among the beneficiaries.
[Mettler, GI Bill] Andersonia might see the rise of a whole new generation of thoughtful
voters, critical recipients of media messages, eloquent spokespersons, and public
interest-oriented lawyers, politicians, and judges eager to enhance democratic
empowerment and to diminish socio-economic inequalities across the board.
Alternatively, Andersonians might also witness the weakening of solidarity and
democratic mobilization among the least advantaged. To begin with, traditional
communities would be disrupted by the widespread experience of resettlement under
the exigencies of integration. To the extent that the mass mobilization of the least
advantaged depends upon spatial concentration, the very re-location processes required
under integration could weaken previous kinship, church, and neighborhood ties.
There is always the chance for new friendships and social networks to emerge in the
integrated neighborhoods, especially insofar as we assume that good faith efforts are
the norm in Andersonia, but the building up of the kind of trust that is indispensable to
political organizing takes a great deal of time. [Lo in Morris, Aldon D. and Mueller,
Frontiers, 237-812] The least advantaged whites would lose, as a result of Andersonian
integration, much of the symbolic returns that they reaped under white supremacy and
de facto segregation, regardless of their own individual beliefs. [roediger] Their
response to the state’s founding would be a particularly acute concern for Andersonia’s
political leaders.
34
Moreover, the rise of meritocratic selection effects [see Arneson] could introduce
tensions among the least advantaged. The rank 9 and 10 students from the least
advantaged families could seize upon their supplemental educational inputs, succeed in
winning places in prestigious higher education programs, and, heavily seduced by the
promise of substantial material gains, devote themselves to lucrative careers. This
pattern would be particularly noticeable among the cadre of high talent but least
advantaged students residing in the Philosophia districts. As they take up their elite
positions after racking up outstanding scholarly achievements, it is entirely possible
that they will rationalize their superior salaries and accumulations of wealth as
deserved rewards, and that they will choose not to align themselves politically with
radical egalitarian social movements. Instead of more solidarity among the least
advantaged in favor of egalitarianism, we could end up with the accelerating
fragmentation of this social group in which the narcissism of small differences becomes
the rule.[failure of blacks’ cross-class solidarity in voting data; on fragmentation of
working class between skilled and unskilled, see Marx, Capital; on symbolic capital
and social fragmentation: Bourdieu]
As for the most advantaged residing in the Philosophia districts, they would be
disproportionately represented within the freshmen classes in higher education
institutions and the high salary and high prestige careers. The demand for residential
rentals and real estate in the Philosophia districts would rapidly become so intense that
upward pressure would be placed on the cost-of-living. Perhaps most of the least
advantaged residing within the Philosophia districts would already be settled in
publicly subsidized housing, but the ones trying to make ends meet in unregulated
apartments would be driven out by skyrocketing rents. The least advantaged families
from other districts would find it extremely difficult to find affordable housing in any
Philosophia district. Even with the progress towards racial integration within
Andersonia’s elite, there would definitely be more strains upon the solidarity between
class fractions. The prosperous Andersonians would readily find ways to transfer their
extraordinary wealth to their children in turn, thereby placing them in the most
advantageous positions. The members of the elite already holding residential property
in a Philosophia district would seek to enrich their holdings through renovations and
the appropriation of contiguous properties. The most advantaged residing outside
Philosophia would be first in line when one of the super-hot Philosophia properties
goes on the market, and they would use their deep pockets to defeat the other buyers.
Over several market cycles, it is likely that native-talent rank would become a
less important factor in Andersonia’s higher education and career markets. Rank 6
Philosophia graduates could begin to outperform the students residing in threshold
districts belonging to ranks 8 and 9, for example. Resentment and cynicism would
become widespread. Students of color from moderate income families residing outside
Philosophia may be particularly disillusioned and alienated. Their parents had
35
probably built up high expectations at the time of the state’s founding, given the fact
that they were about to enjoy substantial improvements in their local neighborhoods
and schools. They had eagerly looked forward to a time in which their children would
live in a safe neighborhood and would graduate with a meaningful high school
diploma. Surely their young graduates would prosper as a result.
The promises made at the founding, however, would go unfulfilled over the long
term. The relative value of the threshold district high school diploma increasingly
diminishes over time, and these graduates lose out in competition after competition.
The young adults stuck in this position would feel cheated: they had played by the rules
and put in the required effort, but now their diploma is grossly insufficient. Places in
higher education institutions are extremely difficult for them to obtain, and they cannot
find anything better than a minimum wage job. Perhaps these do receive better services
at the local health clinic than they did before, and perhaps they do benefit indirectly
from enhanced output in Andersonia’s economy. Nevertheless, as the division of labor
and socio-economic inequality are intensified, alienation becomes an increasing
concern. [see Rawls, TJ, 92] Some of the least advantaged from threshold districts will
voluntarily “drop out” of mainstream society; falling back on the entitlement a
minimum standard of living, they will deliberately pursue life plans as creative writers,
artists, and musicians that emphasize flourishing for its own sake, as opposed to
upward mobility. Nevertheless, many will feel cheated out of a decent chance to
succeed and to make their own mark in the competitive races that the dominant
Andersonian culture values the most.
It is entirely possible that for many of Andersonia’s most talented and hardworking high school students, their mandatory participation in integrated schools and
neighborhoods, and the pre-college public service programs will foster a lifelong
prioritization of the needs of the least advantaged. Others, however, will cynically
reframe the Andersonian ideals.13 Rubbing shoulders with least advantaged and less
talented pupils in school and public service placements will strike them as little more
than two more mandatory credential-gathering exercises. They will bring an acutely
competitive attitude to their public service placement, seeking out the positions most
valued by college admissions officers and supervisors known for their eloquent
recommendation letters. Parental knowledge and ambition will lead to the formation of
informal markets, as the keenest pass along their insider’s information and hoard the
best public service experiences for kin and close friends. The insider parents’ cohort
would be somewhat diverse, thanks to Andersonia’s integrated character, but parental
education will trump all other factors where success in the competitive race to secure
the best college admissions dossier is concerned. In a few unusual cases, a parent will
have extraordinary capital holdings but a low level of education; she will readily make
up for her deficit by hiring a college admissions consultant to tutor herself and her
teenager in college preparation and admission dossier building techniques. It is possible
36
that over time, the spirit of fairness and community solidarity that had animated the
Andersonia’s founding generation will be hollowed out from within, as integrationist
and sufficientarian ideals are corrupted and market rationality predominates.
The First Defectors: Private Tutoring, Private Schools, and More Ratcheting Up
** Brighouse and Swift : the decline in value of an adequacy level of educational
opportunity as the most advantaged opt out of the public-only model, by purchasing
private tutoring or paying private school tuitions
** Anderson: explicitly permits these supplements ; least advan benefit, against
leveling down, liberty interest (choice)
** the liberty argument in Rodriguez : but is there a parental liberty interest in the
freedom to purchase educational advantage for one’s children, including
Brighouse and Swift, for their part, have argued convincingly that the
parental liberty interest in partiality towards one’s own children only extends as far
as the expression of love and the provision of personal caregiving. The accident of
being born into a wealthy family is, of course, a matter of pure chance and fairness
prohibits morally arbitrary advantage. The securing of educational opportunities,
without regard to merit or effort, but simply by virtue of one’s family ties, cannot
be defended. In light of the harm to others, namely the deflation of positional
educational value for the least advantaged children, Brighouse and Swift conclude
that material transfers and purchases of educational advantage should be
distinguished from the emotional and caregiving bond that ideally develops
between parent and child.[*] The right of an adult to parent — to raise a child
regardless of one’s marital status and income bracket, and to participate in a bond
that is ideally centered upon a profoundly emotional experience and extensive
provision of caregiving — constitutes a very substantial liberty interest.
Governmental interference in this dimension of parenting should be kept to an
absolute minimum; intervention should only occur, for example, where there is
proven abuse and neglect. [*] Material intergenerational transfers and the purchase
of educational advantage for one’s personal favorites, by contrast, are properly
understood as falling outside the category of parental liberty. They belong, instead,
under the rubric of a relatively minor liberty, namely “freedom of contract.” As
such, justice requires their close regulation and strict limitation, along the same
lines as the imposition, in a society well-ordered by justice as fairness, of
progressive income taxation schemes, the minimum wage requirements, maximum
pay ceilings, rigorous trade union standards, one hundred percent estate taxes, the
provision of a social minimum and generous social security entitlements,
regulations designed to ensure that the finance sector prioritizes the needs of the
least advantaged, and so on.
37
---------------------
The Other Defectors: Moving Out of State
The Gautreaux case that Anderson relies upon raises an interesting question
about the problems that arise when integrative policies are scaled up, from a single
neighborhood located within a national housing market, to a state-wide integrative
program. If some middle-class homeowners in one of the Chicago neighborhoods
deeply resented the arrival of a low-income voucher-holder from the public
housing project, they could always sell their homes and move into an alternative
neighborhood with zoning bylaws designed to establish and maintain an
environment catering exclusively to the well-off. It might be somewhat
burdensome for them, but as long as the receiving neighborhood is not too far
away, the emigrants will not be greatly troubled by the move. If we take integrative
policies to a statewide scale, by contrast, we are more likely to find much deeper
attachments to the region on the part of the well-off, and much more resentment
about the burdens that they would have to assume in order to exit the desegregated
state.
A few members of the white wealthy elite within Andersonia will resent the
integration policies a great deal and will seek to exit. A small number will reside in
Andersonia’s areas that lie close to the state’s border. Perhaps they will regard the
contiguous state’s policies as more amenable to their ambitions and values; they
should be able to find new homes in nearby gated communities located only a few
miles away, just across the state border. For other well-off Andersonians, however,
exit from the state will mean tremendous relocation costs, in social, emotional, and
material terms. Meanwhile, Andersonia will suffer from the out-of-state
emigration; they will be paying taxes into the coffers of a different state,
contributing their social and cultural capital to non-Andersonian communities, and
investing in local business ventures elsewhere.
Within Andersonia itself, a disgruntled elite minority could do a great deal of
damage. Wealthy whites who bitterly resented the loss of their traditional privilege
could turn to the federal courts for relief. In Masters of the Universe v. Andersonia, [*ref
novel TW] a group of wealthy white parents file suit against their state in federal court,
on the grounds that the Andersonian policies violate, among other things, their equal
protection rights by engaging in race-conscious pupil assignment policies. The recent
decision, Parents Involved, [Parents Involved in Community Schools v. Seattle School District
No. 1 (551 U.S. 701 (2007)] provides us with some indications as to the outcome in
Masters of the Universe. The Parents Involved Court struck down two much less ambitious
38
race conscious and integrative pupil placement scheme — single district programs that
left residential segregation untouched — as a violation of the Fourteenth Amendment.
The integrative schemes had been implemented on a voluntary basis by democratically
elected school boards in Seattle and Louisville, and the school boards amply
demonstrated at trial that they did so out of sincere interests in promoting
desegregation. The Supreme Court nevertheless refused to give “local control” its due.
[fn In a sense, the Court was obliged to show its hand much more forcefully in
PICS than in Rodriguez. A decision in favor of Texas could be defended on the
basis of the separation of powers doctrine. Harking back to its embrace of judicial
minimalism in economic affairs, one that originated during the New Deal era,
[Ackerman] the Rodriguez Court could claim that its rejection of the plaintiffs’
arguments stemmed largely from its constitutional obligation to defer to the legislature
in matters pertaining to economic regulation. Indeed, the Rodriguez decision
consistently champions federalism and counsels the plaintiffs to seek a remedy through
their participation in the political system. [see, eg decision, pg *] Where Rodriguez
merely permits a state legislature to retain its existing school finance law, PICS brushes
aside the decisions of two democratically elected bodies, the school boards, and strikes
down their legislation.] As the Attorney General of Andersonia prepares to defend her
state’s brave reforms, she would certainly not be able to turn to Rodriguez for
constitutional fortification.
Because the Andersonian reforms do not enjoy nation-wide support —given the
tremendous and intractable interstate variations in educational opportunity at present,
it is reasonable to assume that a national consensus in favor of Andersonia would be
lacking — it is highly likely that there would be some legislative response at the federal
level. With or without the President’s blessing, anti-Andersonians in Congress could
rally enough votes to adopt federal measures to block the reforms. It could tinker with
ESEA Title I funding and other federal education spending to deprive Andersonia of
federal grants, for example. [The model here is DOMA in response to s-s marriage
initiatives at the state level.]
Andersonia’s most serious political opponent would be the right-wing social
movements based in the other states. Hopefully, Ku Klux Klan-style white supremacists
would not suddenly enjoy a surge in credibility as a backlash emerges in the other
states. It is entirely likely, however, that skilled leadership on the part of libertarians,
neoliberals, and moral conservatives outside Andersonia would lead to the enormous
expansion in their groups and organizations and the overnight cultivation of
tremendous popular passions against Andersonia through well-staged rallies, town-hall
meetings, religious gatherings and other media events. In these conditions, popular
fears would be whipped up against big government, the rigorous regulation of the
housing market, and the loss of parental liberty. In fact, there are ample historical cases
in which similar calls for “the preservation of traditional ways of life,” “local control”
39
and “fiscal responsibility”, as well as analogous denunciations of “Robin Hood”-style
redistributions, became overwhelmingly popular in response to equitable reforms. We
could look, for example, at the aftermath of the Brown decision in the Southern states,
[Rosenberg, What Brown Should Have Said,] or at California’s adoption of Proposition
13, the state constitutional amendment limiting property taxes, in the wake of the
Serrano litigation.[ picus, walters In Search, et. al,] [*again, the state responses to ss
marriage demonstrate the ways in which federalism facilitates the anticipation of
progressive reforms by right-wing movements even in the jurisdictions that are
contiguous to, but legally distinct from, the ones in which the demonized reforms are
actually achieved.] The backlash in the other states could block Andersonian reforms
there, or, even worse, reduce voters’ support for the public school system even further.
The least advantaged resident in those other states could end up worse off as a result.
Conclusion
Value of Anderson’s attention to local government autonomy and the ways in
which the most advantaged whites have successfully exploited jurisdictional differences
to hoard public education resources and facilitate race- and class-based segregation.
Remains true even if outcomes are indeterminate. Holding the conditions of the
most advantaged constant, the least advantaged in her “real world” setting, Andersonia
do experience a significant enhancement, materially and constitutionally, with respect
to educational opportunity.
Once we introduce the competitive responses of the most advantaged, the
situation becomes quite complex. The enhancement of educational opportunity
certainly provides the least advantaged with the means to enjoy enhanced individual
flourishing, regardless. But, as Brighouse and Swift would point out, the most
advantaged would utilize their competitive market rationality to assess the threat posed
by the adequacy and integrationist reforms. They would seek to monopolize residential
placements within the districts that are permitted above-threshold local contributions to
public school budgets, such that there would be tremendous pressure on Andersonia as
it struggles to maintain its commitment to residential integration. There is a chance that
the least advantaged will turn their enhanced educations into political tools as they
engage in mass mobilization in favor of egalitarian reforms. If they manage to recruit
enough middle-class blacks, and at least a handful of middle-class and wealthy whites,
they might prevail in the political process and successfully introduce egalitarian
distributive policies. However, we might see tremendous alienation among the least
advantaged as the positional value of a threshold public high school diploma
40
plummets, and the talented students who enjoy tremendous upward mobility thanks to
Andersonia’s public education investments may not maintain a profoundly unselfish
commitment to cross-class and multiracial solidarity. The ideological force of market
rationality may ultimately lead to the hollowing out of Andersonia’s founding
principles, such that ambitious parents and students turn Anderson’s integrative and
public service experiences into credential gathering exercises to be negotiated with the
cynicism of the typical scheming gamer.
Defection: two types: wealthy parents who purchase private educational goods:
tutoring, places in private schools; and those who exit state altogether. Long-term
implications.
Cosmopolitan pol phil – Rawls, Laws; Pogge; Held; Sen; Nussbaum; Shue;
Singer; Young; R. Miller; etc. – question the given-ness of our obligations to aid only
our fellow countrymen and women; demand answers to difficult questions about our
duties towards the needy residing in foreign countries. Why should nation-state
borders be accepted as meaningful limits to our moral duty to give assistance to those in
need ? Taking the nation-state bounded character of our obligations is to accept moral
arbitrariness, given the strategic, geo-political nature of their formation.
Attention to North-South problematic should not, however, cause those of us holding
citizenship status in developed countries to neglect our moral duties to the least
advantaged residing within our countries’ territories. Here, too, justice requires the
questioning of the given-ness of political boundaries and the ways in which federal
systems can facilitate hoarding, exclusion, and exploitation on the part of the most
advantaged. Cf. Patrick Le Gales, governance, regional and local, under conditions of
globalization and inequality. Virtues of Anderson’s proposals; encourage us to reflect
further [see Walzer on associational justice] on the complex interface between spatial
governance, and educational equity.
41
Appendix I. States Plotted According to NAEP and State Proficiency Scores, 2005.
Source: Liu 2006.
Notes.
“NAEP” is the National Assessment of Educational Progress, an independent, non-governmental, and widely
respected national testing agency.
States fall into the upper left quadrant, like Mississippi, have low state standards and low performing student
bodies. About seventy-seven percent of their fourth grade math pupils are ranked as “proficient” in the state test,
but only eighteen percent achieve proficiency or better on the NAEP.
States in the upper right quadrant, like Kansas, also have low standards, but a greater percentage of their students
are achieving proficiency or better on the NAEP.
42
States in the lower left quadrant, like New Mexico, have high standards and low performing student bodies, while
states in the lower right quadrant, like Wyoming and Massachusetts, have high standards and high proficiency
rates.
Only two states, Wyoming and Massachusetts, use state proficiency standards that are actually stricter than that
for NAEP.
===========================
43
Appendix II.
Weighted Student Formula, CFE III.
In one state school funding case, Campaign for Fiscal Equity, the state’s highest court
found in 2003 * that the state had violated the adequacy education rights of one class of
students, namely the children attending public schools in New York City. In its
decision, it gave the state legislature * months to adopt a new school funding scheme
that would bring up the NYC schools to an adequacy level, defined by the court as the
level of educational opportunity necessary for high school graduates such that they
could make thoughtful decisions in casting their votes and participate productively on
juries. [dir quote and cite *] Although the Court recognized that the state legislature’s
$9.4 billion capital improvement program would cure the constitutional deficiencies in
the NYC schools’ physical plant, it further determined that it failed to meet their
deadline where the implementation of a plan to rectify the NYC schools’ core operating
expenses. Ultimately, the Court imposed a remedy in which the state would have to
guarantee the expenditure of $1.93 billion from state and local sources combined, in
addition to the existing spending levels, representing a 30 percent increase. To integrate
student needs-oriented adjustments into a simple per pupil formula, the Court accepted
the following model.
44
Notes.
1
We can get a glimpse of the inequitable distribution of educational opportunity in American public schools by
looking at differences in teacher salary expenditures. In a ground-breaking 2011 study conducted by the US
Department of Education, the evidence suggested remarkably high and widespread levels of inequity. (U.S.
Department of Education, Comparability of State and Local Expenditures Among Schools Within Districts,
Washington, D. C., November, 2011.) Because the study looked solely at intra-district differences, the impact of
cost-of-living on teacher salaries was not a factor. However, the study did control for grade level. It defined
“higher-poverty schools” as those with a poverty rate (based on student eligibility for free or subsidized lunches)
above the district average while “lower-poverty schools” had a rate that fell below the district average. It focused
exclusively on state and local spending on teachers’ salaries, since federal contributions are heavily redistributive,
by the very design of the 1965 ESEA. Looking at the budgets of more than six thousand districts, the study found
that more than one third of the higher-poverty schools in the sample had more meager per pupil teacher salary
expenditures than the lower-poverty schools in their own districts. (Ibid., X-xii) In one quarter of the higherpoverty schools, the personnel expenditures were more than ten percent below the average for the lower-poverty
schools.(Ibid., 23) When the study focuses exclusively upon teachers’ salaries, the inequitable differences between
the budgets of the higher-poverty and lower-poverty schools become even more pronounced by several
percentage points. (Ibid., passim.)
2
Elizabeth Anderson, The Imperative of Integration. Princeton, N.J.: Princeton University Press, 2010.
In Imperative, Anderson also makes it clear that the recruitment of a “critical mass” of
traditionally under-represented minorities would be guaranteed by her affirmative action
initiative as well. See also Grutter on critical mass.
3
4
In a few extremely large metropolitan areas, like New York City, there are no special school taxes per se; the city’s
education department must compete with the other local agencies for its piece of the general local government
tax revenues. The overwhelming majority of school districts, however, raise single-purpose school taxes by
imposing a fee upon local property owners.
In one case, CFE III, the Court used the co-efficients of 1.2 for pupils with
limited English proficiency. A pupil coming from a disadvantaged economic
background was assigned a co-efficient of 1.35. The co-efficient for pupils with
disabilities participating in special education programs was 2.1. However, no provision
was made for the concentration of low-income pupils within a single school. The
assignment of these co-efficients was enormously controversial; the plaintiffs argued
that the co-efficients, and other accounting decisions, led to the Court’s underestimation
of the remedial spending by a factor of 2.6. See Appendix II.
5
6
[fn Edgewood had a predominantly Mexican-American population; about 90 percent of the students in Edgewood
schools were Mexican-American, while another 6 percent were African-American. [*] However, the plaintiffs’ legal
45
team decided to frame their equal protection complaint on the basis of wealth, rather than ethnicity. Their
complaint targeted the statewide school funding scheme, and several districts contained substantial numbers of
low-income whites and middle-income Latinos. Further, the Mexican-American residents had moved into the
Edgewood district in substantial numbers long after its boundaries were drawn; the original architects of the
district boundaries were clearly not motivated by discriminatory intentions. The Court had already signaled the
importance of the distinction between de jure and de facto segregation in 1971 in Swann v. Charlotte-Mecklenberg
Board of Education (402 U.S. 1 (1971)). Under Berger’s leadership, and with Nixon’s Court appointments, the Court
was turning away from the aggressive desegregation standards that the Warren Court had established in its 1968
decision, Green v. County School Board of New Kent County (391 U.S. 430 (1968)). Later in its 1973 term, the Court
handed down Keyes v. School District No. 1 (413 U.S. 189 (1973)), in which it decided that even if a school board
had engaged in intentional segregation in one part of its district, it might be able to escape a district-wide remedy
if it could show that it had not engaged in intentional discrimination outside that one area. In Milliken v. Bradley
(418 U.S. 717 (1974)), decided in 1974, the Court vacated a multi-district remedy on the grounds that the plaintiffs
had only demonstrated that Detroit’s inner city school district had engaged in a de jure form of racial segregation.
It prohibited the federal district court from imposing supervision and control over the majority white suburban
school boards because the plaintiffs had failed to show that they had intentionally engaged in equal protection
violations as well. It was not clear, however, that the Court was also ready to abandon the gains that the Warren
Court had made with respect to the suspect character of wealth-based classifications. See, for example, Shapiro v.
Thompson (394 U.S. 618 (1969) (striking down residency requirements in state AFDC law), and Frank Michelman,
"The Supreme Court, 1968 Term: On Protecting the Poor Through the Fourteenth Amendment," Harvard Law
Review, 83: 1 (1969-70): 7-282. The plaintiffs’ lawyers were particularly inspired by a federal appellate court
decision, Hobson v. Hansen (269 F. Supp. 401 (D.D.C. 1967), aff'd sub. nom. Smuck v. Hobson, 408 F. 2d 175 (D.C.
Cir. 1969), that had struck down racially and economically discriminatory forms of intra-district segregation, biased
intra-school spending patterns, and educational tracking in the capitol’s public school system. See Paul A. Sracic,
San Antonio V. Rodriguez and the Pursuit of Equal Education, Lawrence: University of Kansas, 2006, especially 225.]
7
Alamo Heights had a predominantly white Anglo school population; once again, the plaintiffs decided not to
emphasize an ethnicity-oriented equal protection complaint.
See, for example, Douglas v. California (372 U.S. 353 (1963)) (deciding that a
state must provide counsel to an indigent defendant facing criminal charges on first
appeal.)
8
9
Anderson shares with Rawls the insight that inequalities of natural endowment are undeserved; the naturally
talented have a right to own their intellectual assets, but they have a moral obligation towards the least
advantaged. Anderson frames that obligation in terms of the guarantee of threshold entitlements and integrated
neighborhoods and schools. For his part, Rawls does so in terms of the fair equality of opportunity and difference
principles. [see, e.g. Rawls, TJ, 86-93.] Moreover, it is not clear that Anderson would endorse a fully-fledged
version of the Rawlsian principle of fair value of equal political liberties. [tj 197-200; j af 148-50]
10
[effort: not a straightforward variable that predicts meritocratic outcomes, given the fact that excellent teachers
in very well organized schools can coax stronger efforts out of many of the pupils who appear to be disengaged;
See Rawls, TJ,89 *,also Jencks **
46
11
For arguments and evidence about the ways in which the enhancement of education among the least
advantaged facilitates the formation of democratic social movements, see McAdam, Political Process, 108-116.
12
Clarence Y.H. Lo, “Communities of Challengers in Social Movement Theory,” 224-47.
13
On the force of market ideology in the insidious commodification of critical discourse , see Adorno **.
47