Rethinking Localism in Education Law and Policy

A Conversation with Professor Derek Black
Blog Post
A photograph of four children in silhouette, standing on one side of a chain-link fence at sunset.
June 2, 2023

On April 18, 2023, the Minnesota Law Review published an article entitled “Localism, Pretext, and the Color of School Dollars” by University of South Carolina law professor Derek W. Black. In this interview, Professor Black explores some of the ideas contained in the article, including:

  • Localism in public education, including school finance systems that rely heavily on local tax dollars, has led to a system of segregated and unequally resourced schools.
  • Localism is not an inherent part of the American public education system. Local school districts should be properly understood as a means by which states fulfill their constitutional responsibility to provide public education.
  • The courts have incorrectly assumed that localism is the exclusive and dominant historical means through which states have built the American public school system. This mistake has led courts to place too much importance on localism, prioritizing it above fully solving the problems of segregation and inequitable school funding.
  • Rethinking the nature of localism in public education law and policy is an important step towards addressing unequal education opportunity in America.

This interview has been condensed and edited for length and clarity.

We often hear about the positive effects of localism in education—that is, governance systems that allow much about education policy, financing, and instruction to be determined at the local level. I assume you wouldn’t be pushing for a rethink of localism if it weren’t also creating harms. What problems should we be paying attention to?

To be fair, localism can have some positive effects, such as local engagement and investment. But the most immediate and longstanding harms of localism are school funding inequality and school segregation.

A large portion of the funding and resources available in any school district depend upon the property taxes it can raise locally. This portion varies by state. Some states only cover a third of the total cost of education; others pick up 75 percent of the budget, leaving 25 percent for local districts. But as long as that local portion is a substantial amount, that is going to produce inequality. There are going to be some local districts who cannot afford that local portion, and there are going to be others who can do 3 or 4 times as much. Any system of school funding that places a substantial school funding burden on local communities is going to produce unequal opportunities.

And if you think of the school district as a resource boundary, what it ultimately does is deny some people the ability to access resources on one side of the boundary and those on the other to hoard them. Given the level of racial and socio-economic isolation between districts, this sadly translates into a hoarding of educational opportunity based upon racial and socioeconomic lines. And obviously, educational opportunity is not just about resources. It's also about dialogue, values, and developing a shared common good. In fact, these are the foundational ideas that prompted states to commit to public education two centuries ago. Segregation across boundaries is contrary to these values and ideas.

How did we arrive at the system we have today? Did public schools first arise out of localism?

Education is mandated in state constitutions. In the nineteenth century, state constitutions included language like, “the legislature shall provide a system of uniform, thorough, and efficient schools,” or “the state shall provide.” They don't say “the school districts shall.” Because in the very earliest days, there was no such thing as a school district. The states existed; they had responsibility. School districts come into existence as a way to effectuate state constitutional duty.

Let’s take Pennsylvania as an example. I recently testified in a school funding lawsuit in Pennsylvania, and it was crystal clear. Pennsylvania had long had schools in various communities, but they were not constitutionalized, and they were not formalized. There was a shockingly large percentage of kids who lived in communities that had absolutely no school at all in the late 1800s in Pennsylvania. Without state leadership, localism would have never provided public education for thousands and thousands of children across the state. If we had stuck with localism, there'd be communities that would have been well in to the 20th century without having ever created their first public school. States fully understood that and exercised their authority to deal with that problem.

A black-and-white photo of a window with the words "Pay Your Tax Here" written on it, with a  1930s car visible through the window
Harlingen, Texas, 1939
Source: Provided by The New York Public Library on Unsplash

And what about the school finance aspect? How did school districts come to collect and keep local school taxes?

The school tax part evolved differently across regions. Let's start with the North. In the early 1800s, local taxes were minimal, if they existed at all. It’s not really a road-building era and a police force is one sheriff. So you don’t have a lot of costs. It really is the creation of a system of public schools that requires local taxes. And no one likes taxes, particularly people who have never paid them. So, part of what the states are doing is trying to find the path of least resistance for imposing taxes. The states’ theory was that some guy that you know, from your community, that you voted for—and not some guy at the state capitol—is the least offensive means of collecting taxes. So it’s important to understand that these local taxes are not somehow a function of the constitution or a normative education value, but rather a strategy for threading the needle of a tax aversion problem. And states were committed to threading that needed because they knew how important education was.

In the South, no meaningful system of public schools existed prior to the Civil War. Public schooling comes into existence and is constitutionalized during Reconstruction. These Reconstruction era school systems started out with a statewide system of tax collection: All those taxes would come to the statehouse, and then the State Superintendent would send them back out as appropriate to the districts. With the fall of Reconstruction, your so-called “Redeemers” were quite upset about spending all this money on Black kids’ education. They were trying to come up with a strategy to facilitate segregation and inequality, and that turned the tide towards localism through a couple of financing schemes. Number one, they authorized local jurisdictions to keep their taxes rather than sending them to the state. Number two, they allowed local jurisdictions to double the tax and collect more money locally. And third, they authorized local superintendents to distribute the funds collected locally, “as justice requires,” the idea being that they could make a decision as to what they thought was “just” between black and white students. So, localism becomes a way to facilitate inequality. There was a lot of racially motivated localism pervading the southern states.

Your article provides this history of localism, and you also trace why we've come to misunderstand localism. You point to two major United States Supreme Court cases from the early 1970s, San Antonio v. Rodriguez and Milliken v. Bradley. Can you explain how those cases began to create that misunderstanding?

San Antonio vs. Rodriguez involves a challenge to Texas’s heavy reliance on local property taxes to fund schools. Plaintiffs argue that this violates equal protection clause of the U.S. Constitution. The Court rejects their arguments. And one of the Court’s overriding concerns was that plaintiffs were complaining about unequal funding between Texas’s school districts. The Court responds that all these different school districts and different ways of going about things is a good thing! Localism is what makes education great, and if Texas wants to pursue localism, the Court is not going to stand in the way.

The Court talked about localism as being this inherent education value and norm that goes back to the beginning. I think most people accept that story. But they don't actually investigate the history. The Court completely ignores the fact that education is mandated in state constitutions, not something that local communities do because they want to. The Court just skips over that because localism is the narrative that it wants to tell. And localism is the narrative that will justify inequality.

Source: Architect of the Capitol

Next you talk about Milliken v. Bradley. Milliken is a case about desegregation, not school funding. How does it connect to the problems you point out in Rodriguez?

Milliken v. Bradley involves school desegregation in Detroit, Michigan. The one core city district was nearly all Black, and the 50 surrounding school districts were basically all white. The lower court said integration is impossible if all they do is integrate within this city district. So the lower court ordered a remedy that involved the entire metropolitan area. It made sense, and it didn't really seem all that radical from a doctrinal standpoint. Something nearly identical had already happened in Charlotte, North Carolina.

But the Supreme Court in Milliken says, nope, you cannot desegregate or bus students across these district lines within the metropolitan area of Detroit. The Court focused on how important these districts are. It says, localism is the way we do things. And it suggested that doing it differently raised practically insurmountable problems, particularly with money. The Court mused that each district is entitled to its own budgets and its own ways of financing. There's no way that we could fairly have finance-sharing within the Detroit metropolitan area across these 50 districts, so the Court said it could not order interdistrict desegregation. And so, it elevated this value of localism and school district boundaries above the constitutional mandate to eradicate the vestiges of school segregation. And I say, the Court got that wrong. It just perpetuated a bad story that it started in Rodriguez.

You write that state courts have been more likely to correctly locate the constitutional responsibility for providing an education with the state government, but they also largely accept the federal narrative that localism is a deeply rooted value in education. That pushes them towards having to balance those different priorities.

They do accept, in most cases, the legitimacy and the existence of the school district boundaries as units. It's an internal tension: Education is the state's constitutional responsibility, but the state can have school districts if it wants to. The question is, how do you balance state duties against state discretion? Courts still allow states to rely on localism more than I believe is necessary or appropriate.

Source: Photo by Sandy Millar on Unsplash

That may partially be a function of advocates’ move to focus on school funding adequacy more than equity. Adequacy rests primarily on the notion that states have to secure a baseline of funding in all districts, which means providing enough funding to move those at the bottom up to adequacy. But adequacy doesn’t challenge wealthier local districts’ ability to go well above that baseline. They can run as far as they want in terms of local school funding. I'm not against that per se. But as a practical matter, it can leave other school districts behind when we look at the bigger picture. First, those wealthier districts have a vested interest in keeping things as they are; their schools are already well-funded, so they’re likely to oppose a fairer, more heavily state-funded system that would require them to pay more into the state funding pool that supports all districts. Second, once you draw district boundaries and allow vast inequality between them, you create incentives for people with means to cross or draw boundaries and segregate themselves. So the tough question is, how do we create an equitable, adequate, and integrated system of schools at the same time at which we have school districts?

This article is really about the proper way for courts and the law to examine the issue, not about policy remedies. But in the section about state courts, you say, “[C]ourts typically assume the validity of the existing structure of school districts. They rarely, if ever, imagine a world with fewer districts or a different organizational structure.” I think that quote gestures at a policy prescription. How would a different structure change or improve things for students?

It depends on what you're trying to achieve. I get worried about people thinking the silver bullet is to do away with or consolidate districts. We've had rural districts that have gone through consolidation. That hasn't worked out so well for those communities. At the same time, I worry about treating the district line as sanctified. The district line is helping facilitate current problems. I come down by saying that the district line is part of the problem, but the problem is bigger than the district line alone. And that's why I think we really have to step back and think about a world that we haven't seen yet.

Perhaps the answer isn’t specifically fewer districts, but different districts—districts that are intentionally drawn to create diverse and fairly resourced schools rather than the combination of happenstance and animus that we have now.

I think what you said is correct. But I also would say, maybe it's not the existence of the district. It's the power that we afford to the district. We need local people that are responsible for taking care of certain schools. There’s no way of getting around that; the state needs local partners. There are always going to be some sort of boundaries, because of geography, transportation, etc. But the question is, is living within that boundary an absolute necessity for attending schools that are in that boundary? Is the responsibility for financing those schools dependent upon the homeowners who live within that boundary? Does the final say on the academic program within that boundary belong only to those who live there? Or are local officials just the local administrators of a state system? To me, these questions suggest a much different way of thinking about education.

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