Opting out shouldn’t be an option.

Over the past few weeks, several articles have placed school district secession laws, also known as splinter laws, at the center of discussions on racial segregation in American public schools. Although the specifics vary by state, these laws allow individual communities to break off from their larger school districts, often having the practical effect of creating racially and economically homogenous school districts that coexist alongside one another.

At first glance, these laws should seem like legislation of the past, a disquieting reminder of the segregation that the Supreme Court sought to eliminate with its ruling in Brown v. Board of Education. Yet, when the 1972 SCOTUS decision in Wright v. Council of City of Emporia struck down Emporia, Virginia’s attempt to break off from its county school system after a district court desegregation order, the Court limited its holding to this time period. It noted that the attempt to secede was impermissible because “it would impede the process of dismantling a dual system,” a judicially-established status that relied on certain factors described in Green v. County School Bd. of New Kent County. In other words, the Court endorsed the view that the constitutionality of splinter laws depended on prior policies of intentional segregation.

In light of our current climate and according to Edbuild’s recent report, Fractured, the implication of such a holding that limits federal oversight of school district secession is startling. EdBuild notes that the past 19 years have produced at least 71 attempted school district secessions around the nation. And these attempts, such as the most recent one in Gardendale, AL, have carried the imprimatur of local control, a buzzword adopted and endorsed by the United States Supreme Court in Wright and other school desegregation cases.

The EdBuild report makes a bold, yet convincing statement: “secession is a counterproductive means of obtaining more local authority” because of its negative effect on more impoverished school districts, its inefficient use of resources and its exacerbation of racial and socioeconomic segregation. But how do school secession laws fair in light of plausible judicial understandings of local control?

A Supreme Court decision proves helpful in beginning to address this question. In San Antonio Independent School Dist. v. Rodriguez, the Supreme Court upheld a Texas school funding plan based on property taxes. In doing so, it embraced the principle of local control.  Writing for the majority, Justice Powell emphasized its value in providing “the opportunity…for participation in the decision-making process that determines how . . . local tax dollars will be spent.” He went on to state that “[n]o area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education,” specifically as a means to create “healthy competition for educational excellence.” Simply reading these two statements in insolation from the rest of the opinion and time period, two words stick out: Diversity and participation.

Many state splinter laws, however, are designed and implemented so as to undermine these underlying principles, highlighting, as one report notes, that “[r]ecent Southern secessions reflect a narrowing conception of what is ‘public’ about public education.” In Fractured, EdBuild compares each state’s process for school district secession, highlighting the requirements for new school district formation. As EdBuild emphasizes, only four states consider the “district left behind,” only six examine racial and socioeconomic effects, and only one provides for state legislative action.  These, however, are the very factors that would ensure Rodriguez’s promise of local control.” The preemptive exclusion of members of the larger school district undercuts participation by conveniently redefining local to advance a new definition of the word. It ties one’s participatory value to what one can provide, ignoring the fact that concrete votes should be and are more valuable than abstract definitions of wealth.

And the failure to consider racial and socioeconomic factors undercuts the achievement of the  “diversity of approaches” called upon by the Court in Rodriguez. Although Justice Powell envisioned local control as a means to spark different approaches to education among school districts, the practical effect of school splinter laws makes this competition moot. Justice Marshall, dissenting in Rodriguez, says it best: “it is an inescapable fact that if one district has more funds available per pupil than another district, the former will have greater choice in educational planning than will the latter,” and as a result, will have more “educational inputs available for a child’s public education.” The ability of local control to elicit these “diverse approaches” fails, however, when we’re comparing apples and oranges, when the competition is far from fair. A recent study, Is Separate Still Unequal?, by the Educational Opportunity Project at Stanford University revealed a negative correlation between poverty and educational achievement, noting that as poverty increased, educational achievement decreased. Thus, splinter laws facilitate the creation of systems that fall outside of Powell’s ideal –systems that don’t work.  

If splinter laws can’t be defended on the notion of local control, then a question remains as to what purpose they serve. And if 60% of Americans believe that establishing more diverse districts is a viable solution to end racial segregation in schools, then a question remains why these laws have managed to stay on the books for so long. Put simply, splinter laws systematically ignore communities and create school districts that reflect something about our nation. The question is what?