Earlier this month, Amicus Blog contributor Alexandra Butler wrote a post discussing how school district secessions, the phenomenon of smaller communities breaking off from their original school district to form their own, have exacerbated racial segregation across schools. Communities are given the authority to secede through processes outlined in their state’s secession laws, also called “splinter laws.” As Butler explains, these secessions are largely grounded in an argument for more local control, or a community’s desire to make their own decisions around school funding, extracurriculars, curriculum, and the overall values its schools will promote. Butler concludes by highlighting the truism that a society’s laws say something about that society, and asks that we apply that inquiry to the state splinter laws that have led to increased racial divisions.

Without having to go through the formal process of secession, subsets of communities can achieve functionally the same ends through charter school mechanisms, and these mechanisms likewise warrant the introspection that Butler calls for.

A recent report by The Hechinger Report found that 10 percent of charter schools operating in the 2015-16 school year enrolled a disproportionately high number of White students as compared to the racial demographics of the district at large. The report identified the schools by comparing the proportion of enrolled students in the charter school that are White to the proportion of White students enrolled in the public schools of that district (disproportionalities ranged from a 1-point to a 78-point percentage difference). 15 percent of the charter schools identified as having a larger proportion of White students than the surrounding district had a discrepancy of more than 20 percentage points. These schools simultaneously leave behind a district pool which is disproportionately students of color, a phenomenon that writer Kimberly Quick calls “White-Flight Charters”.  Although it’s impossible to say what drives the establishment of each of these schools, it is clear that the avenue at least exists for communities to create charter schools with a protectionist purpose, setting up a school that will serve a particular subset of the community while intentionally excluding others, which can have racial undertones and results. Communities are able to do this because of state charter school laws that either fail to require considerations of resulting segregation or explicitly allow the school to implement certain enrollment requirements that are linked to racial exclusion, described further below. These laws warrant the same introspective examination as splinter laws as we consider what purpose they serve, and whether they reflect our shared values.

A particularly egregious example of the use of charter schools to isolate a predominantly White community, and one that gained considerable attention, was a recent state bill in North Carolina. The bill was successfully lobbied for by representatives from four majority-White suburbs of Charlotte, a majority-minority city, and allows only those towns to operate their own charter schools. Not only are the towns to operate the charter schools, but they may also rely on local taxes to fund them (on top of the general public school funding they will receive from the larger school district), and may utilize a town-residency preference for enrollment. Functionally, the towns are able to set up their own locally-controlled school district that will likely primarily serve its own, mostly White, residents, all while continuing to pull money from the district they left behind.

Although the example from North Carolina is an outlier, it illustrates an important theme. The bill was reportedly pushed as a response to feelings within the individual towns that the larger school district was not meeting the needs of those towns’ children. In particular, the larger district had been considering a new school assignment plan to combat increasing racial segregation, and the towns did not want to be a part of it. This community desire to shield itself from a larger district it views as “apart” or “other” is not unique. While it is always difficult to prove racial undertones as motivating the development of charter schools, the resulting numbers may speak for themselves.

Even without having to push through new laws, communities have the option of acting on this protectionist desire merely by using the state charter laws already on the books. Strategically setting up a charter school that will serve a White and comparatively affluent neighborhood can be accomplished through any number of tools: implementing selective academic criteria which often correlate strongly with race, establishing a residency preference for enrollment which will pull students mainly from the surrounding neighborhood, declining to provide transportation for students coming from other neighborhoods, and more. While individual charter school leaders and boards select these criteria, they are only able to do so because state laws allow them to.

As of April of this year, the landscape of state charter school laws shows there is much work to be done if we expect our state laws to foster school integration. Of the 44 states (or rather, 43 states plus D.C.) that have charter school laws, fewer than half require and fund transportation for students, 13 allow charters to use selective enrollment criteria, and only 6 include considerations of the impact on racial demographics as part of the charter approval process. Although a majority of states allow their charter schools to use a weighted lottery to promote racial, economic, or linguistic diversity, few charter schools have chosen to actually implement such a system. 

The fact that charter schools have largely declined to use one of the few racial balancing tools their home state gives them implies that laws which simply permit a school to employ racial balancing policies are not strong enough to prevent White-Flight Charters, though schools must tread lightly when crafting policies that promote racial inclusion. A number of federal cases concerning magnet schools found that school policies that functioned as a quota violated the Fourteenth Amendment. At the same time, racial diversity has been upheld as a compelling interest in university admissions, and admissions policies in furtherance of it are permissible so long as they can withstand “strict scrutiny.” A charter school enrollment policy attempting to combat racial segregation could be modeled after university policies that have already been upheld by the Supreme Court. These policies, referred to as “race-conscious admissions policies”, considered the race of the applicant as one of many factors for admission to accomplish a stated goal of broad campus diversity that would contribute to a positive learning environment – a policy that is quite different from the quota-like policies utilized by magnet schools that were struck down. Charter schools could likely employ a similar weighting policy in enrollment that takes into account the race of the student in an effort to compile a student body that approximately reflects the school district at large. The ultimate goal of such weighting is to ensure that the charter schools are institutions that serve the community as a whole, especially since they receive funding from all residents through taxes. So long as race is just one factor in a larger assessment, and is included in a way that is tailored to reach a goal of whole-community inclusion, such a policy should be able to withstand a legal challenge while ameliorating existing segregation patterns. Although this could be accomplished by a state law change that would allow such charter school policies to exist, a more robust change would be for state laws to require this weighting, given the finding that few charter schools have voluntarily implemented these policies. 

An additional approach is to amend state laws to target charter school application approval. For example, states could require charter school approval bodies to apply a metric of district segregation in deciding whether to approve new charter schools to begin with. Not only would such a consideration include an examination of the school’s proposed system of admissions, but could also include the location of the proposed school, whether the school would provide transportation for students, whether the school would employ residential preferencing zones, and more. A number of the studies linked above highlight specific policies that would promote racial balancing should a state choose to implement them.

Though the exact remedy is not clear-cut, the problem of White-Flight Charters is one that deserves our attention. Failing to place an intentional focus on racial segregation in state charter school laws not only reflects a society that values personal choice over integration, but has left the door open for communities to take advantage of chartering in invidious ways. Choosing not to close that door amounts to state-sanctioned segregation, which the Supreme Court has decried as a violation of the Fourteenth Amendment and of our shared values or promoting education and personal growth for all equally. The Court has recognized that appropriately-tailored policies can be implemented to achieve inclusion in school admissions, and attempting to do so in the context of state charter school laws is a necessary and worthwhile inquiry.