Tricks of the Trade: State Legislative Actions in School Finance Policy that Perpetuate Racial Disparities in the Post-Brown Era

This paper discusses the " tricks of the trade " that legislatures in formerly de jure segregated states might use to maintain racial funding disparities in existence before Brown and whether such ploys might be vulnerable to legal challenges. The first section provides an overview of modern school finance formulas and explains how legislatures in de jure segregated states might use state aid policies to produce racial funding disparities. We focus on the possibility that legislatures creatively developed policies that allocate financial aid on the basis of proxies for race rather than race itself, in order to perpetuate racial disparities through apparently racially neutral means. The second section, through macro-level, quantitative analyses, identifies those states where state aid is allocated such that minority populations are disadvantaged, and where that disadvantage is subsequently reflected in total state and local revenue. The third section presents in-depth case analyses of those states identified through macro-level analyses. The goal of these case analyses is to determine whether these disparity-creating racially neutral policies might have a connection to de jure segregation. The final section analyzes possible legal challenges that plaintiffs in those formerly de jure segregated states identified in our case analyses may bring to racially neutral state aid policies that place minority school districts at a financial disadvantage. Introduction In Brown v. Board of Education (1954), the Supreme Court held that de jure segregation of the public schools, or segregation mandated by law, violated the Equal Protection Clause of the U.S. Constitution. The Court explained that the opportunity for an education " where the state has undertaken to provide it, is a right which must be made available to all on equal terms " (p. 493). Since the Brown decision, civil rights advocates have tried to equalize educational opportunities for minority students through school desegregation and school finance litigation. However, neither approach has addressed the racial funding inequities that were a hallmark of de jure segregated systems. Consequently, state legislatures might have been able to maintain racial funding disparities into the present time. This paper discusses the " tricks of the trade " that legislatures in formerly de jure segregated states might use to maintain racial funding disparities in existence before Brown and whether such ploys might be vulnerable to legal challenges. The first section provides an overview of modern school finance formulas and explains how legislatures in de jure segregated states might use …