Alvis 1

Taking Class out of the Classroom: Socio-economic class in American education Shaun Alvis Anti-Discrimination Law Professor Cary Franklin May 14, 2013

Alvis 2 I. Introduction: The Classless Society? That America was founded as a classless society is one of the foundational myths of the United States.1 The reasons for this belief in classlessness are varied and are in many ways tied up with the idea of America as a refuge from the hidebound class systems of Europe.2 America, as traditionally held, is a place where birth and background are almost irrelevant to a person's place in life.3 Others argue that even if classes existed at one point in American history, they no longer do today.4 For many Americans though, the idea of a classless society seems far fetched. Today indicators of social mobility show an ever increasing amount of stagnation surpassing even the heights of the 1920s.5 Education has always been considered the gatekeeper to higher socioeconomic status in the United States.6 A person holding a doctoral degree has an expected lifetime income of $3.25 million while a person holding a high school diploma can expect to earn $1.3 million in their life.7 Education has only increased in importance during the 20th and 21st century. For instance only one President of the the 20th century-Harry Truman-lacked a college education compared to 8 who lacked collegiate education during the 18th and 19th centuries.89But as the importance of

1 Paul Kingston, The Classless Society 1(2000). 2 Paul Le Blanc, A Short History of the U.S. Working Class 56 (1999). 3 Benjamin Franklin, Information to Those Who Would Remove To America, available at http://nationalhumanitiescenter.org/pds/makingrev/independence/text8/franklininfoamerica.pdf. 4 Jan Pakulski & Malcolm Waters, The Death of Class 5 (1996). 5 The Economist (Apr. 15, 2010), http://www.economist.com/node/15908469. 6 The Economist (Apr. 15, 2010), http://www.economist.com/node/15911314. 7 Brian Burnsed, How Higher Education Affects Lifetime Salary, US News & World Report (Aug. 5, 2011), http://www.usnews.com/education/best-colleges/articles/2011/08/05/how-higher-education-affects-lifetimesalary. 8 Truman was also the only 20th century President who experienced actual poverty post-Presidency. This memorably led to the establishment of a Presidential pension in the late 1950s. (David McCullough, Truman 928 (1992)) 9 James McMurty Longo, From Classroom to White House (2011).

Alvis 3 education in America increases, rising costs and diminishing returns make it more difficult than ever for those from lower socio-economic classes to enter into the upper echelons of the American educational system.10 To choose merely one statistic to illustrate this trend, the high school dropout rate amongst low socio-economic class children is 16.7% while the rate for higher socio-economic class children is merely 3.2%.11 Socio-economic status then has entered into a sort of feedback loop. As it becomes increasingly important for those of lower socioeconomic status to receive a high quality education it is becoming increasingly difficult to receive such an education without first belonging to a higher socio-economic class.12 While class plays an important part of determining who can receive a quality education, American law has traditionally not recognized a place for class within the various protections that it envisions for other historically disadvantaged groups. In order to understand the role and nature of class under American law as well as to examine ways that class ossification can be combatted one should examine the history of socio-economic class in America, analyze the status of socio-economic class under contemporary American law in relation to education, and then look at possible ways to improve access to education for lower socio-economic status individuals. II. A Brief History of Class in the United States The idea that America was founded as a classless society can easily be debunked. The original 13 colonies reflected and in some cases even intensified the traditional class structure of
10 Tamar Lewin, Financing for Colleges Declines as Costs Rise, N.Y. Times, March 6, 2013, at A7, available at http://www.nytimes.com/2013/03/06/education/aid-for-higher-education-declines-as-costs-rise.html. 11 Education and Socioeconomic Status, American Psychological Association, http://www.apa.org/pi/ses/resources/publications/factsheet-education.aspx. 12 Michelle Cooper, Reducing Poverty through Higher Education, Spotlight on Poverty and Opportunity (Aug. 23, 2010), http://www.spotlightonpoverty.org/ExclusiveCommentary.aspx?id=b550d3c5-42e3-4bde-a08c21d14f26f493.

Alvis 4 England.13 Virginia, for example, was dominated by the so called “First Families” for centuries.14 These families were often founded by the second or third son's of the English aristocracy, who lacking inherited land went to the New World to seek their fortunes.15 Pennsylvania, which is often considered the most liberal and democratic of the original 13 colonies, was founded and controlled by the incredibly wealthy and well connected Penn family.16 And even Puritan Massachusetts Bay was dominated by wealthy members of the gentry.17 So the colonies at least were forged with class still very much in mind. But what of the nation that was formed from these colonies? Perhaps, in order to maintain our national mythos, the Founding cast off the shackles of the old world class system and America then walked forward into a new classless Republican dawn. But history does not bear that national myth out. The First Families of Virginia did not simply disappear with the Founding, in fact they continued to be heavily influential in Virginia politics until the mid-1960s.18The Second Continental Congress and Constitutional Convention of 1789 were composed almost entirely of wealthy members of the upper class elite.19Of the first six Presidents, four were members of the First Families of Virginia and two were members of the Massachusetts Puritan elite.20 America would have to wait until the seventh President, Andrew Jackson, to find someone who broke the stranglehold those of elite birth had on the presidency. Jackson truly was
13 14 15 16 17 18 David Hackett Fisher, Albion's Seed: Four British Folkways in America, 10 (1989). Marshall Fishwick, F.F.V's, 11 American Quarterly, 147 (1959), available at http://www.jstor.org/stable/2710671. Fischer, supra, at 217. Hans Fantel, William Penn, 6 (1974). Fischer, supra, at 176-177. Peter Henriques, The Byrd Organization Crushes a Liberal Challenge, 1950-1953, 87 The Virginia Magazine of History and Biography, 3 (1979), available at http://www.jstor.org/stable/4248276. 19 Christopher Collier, Decision in Philadelphia, 100 (2007). 20 Washington, Jefferson, Madison, and Monroe were all upstanding members of Virginia planter society. John and John Quincy Adams came from a relatively well off Massachusetts family.

Alvis 5 from the lower class.21 His parents were recent emigres from England and his father died before Jackson was born impoverished in either frontier North or South Carolina.2223 His rhetoric reflected this, he portrayed himself as a champion of the common man against elite interests (despite the fact that he himself had risen to become a part of that same elite) and the people responded with love.24 Jacksonian democracy showed the power that a politician could gain through harnessing the affection of the common people, especially during an era of increasingly liberal election laws.25 Candidates of all political stripes sought to emulate Jackson and emphasized either their actual impoverished backgrounds (James Polk26, Abraham Lincoln27) or simply created an impoverished background for themselves whole cloth (William Henry Harrison28, Martin Van Buren29.) This possibly served a relatively practical purpose in the extremely divided polity prior to the Civil War. By emphasizing something like a lower class background candidates for national office could possibly have sought to create a sense of common interest between those on the lower end of the ladder in both North and South. The Civil War and its aftermath lessened the need and desire to stress such common interests. The dominance of the Republican Party in the North coupled with the North's vast population advantage over the South meant that the rhetoric of most candidates shifted away from creating the sort of log cabin background that predominated during the pre-war period.30
21 Jon Meacham, American Lion: Andrew Jackson in the White House, 39 (2009). 22 The battle between the two states over ownership of Andy Jackson's birthplace has been long and contentious. One expects he would approve. (Jeffrey Collins, Old fight lingers over Old Hickory's roots, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/06/AR2011030603406.html.) 23 Meacham, supra, at 9. 24 Meacham, supra, at 188. 25 Alexander Keyssar, The Right to Vote, 29 (2009). 26 Meacham, supra, at 351. 27 David Herbert Donald, Lincoln, 1 (1996). 28 Meacham, supra, at 73. 29 Oliver Chitwood, John Tyler: Champion of the Old South, 177 (1990) 30 Alan Trachtenberg, The Incorporation of America: Culture and Society during the Gilded Age, 77 (2007).

Alvis 6 Instead candidates sought to outdo one another in “waving the bloody shirt” by emphasizing service during the War and most importantly, emphasizing their connections with Lincoln.31 This shift in rhetoric coincided quite nicely with the beginning of the Gilded Age and the rising influence of corporations and the influx of massive amounts of money into politics for really the first time in American history.32 A robber baron would not likely be looking to elect a man of the common people to advance his interests and politicians adapted to serve the interests of those with real power in the new society.33 Those who were willing to utilize class rhetoric were considered somewhat dangerous to the new way of doing business.34 This was true no matter how pedigreed a lineage they might boast. The case of Theodore Roosevelt for example is fascinating. Roosevelt was from a wealthy and impeccably established New York family.35 But his rhetoric was always tinged with an aura of class consciousness and he spoke often of the importance of labor and ensuring safeguards to protect labor from exploitation by capital.36 Roosevelt's nomination and victory as Vice-President was actually engineered by monied interests in New York, who wished to see him removed from the Governorship into a position with no real power.37 Roosevelt's ascent to the Presidency marked a return to a certain amount of class rhetoric in politics as the yawning chasm that had developed between the wealthiest and poorest members of society called out to the so called Progressive reformers.38 Progressives sought to reduce this

31 32 33 34 35 36

Id. at 170. Id. at 72. Trachtenberg, supra, at 168-169. Id. at 156. Edmund Morris, The Rise of Theodore Roosevelt, 3 (2001). Theodore Roosevelt, “The New Nationalism: Delivered at Osawatomie, KS” (Aug. 31, 1910), available at http://www.theodore-roosevelt.com/images/research/speeches/trnationalismspeech.pdf. 37 Morris, supra, at 747-775. 38 John Whiteclay Chambers, The Tyranny of Change: America in the Progressive Era, 87, 155 (2000).

Alvis 7 gap through legal action but often faced resistance from a Supreme Court still wedded to concepts of economic due process (and often influenced by the then common ideology of Social Darwinism.)39 While the Progressives were not always successful in achieving the protections for the poor they so desired they were successful at laying the groundwork for action that would occur during the New Deal. It was another Roosevelt who would go farthest towards trying to introduce safeguards and protections for those on the lowest end of the economic spectrum. Franklin Roosevelt was heavily influenced by his cousin, Theodore, and another Progressive President, Woodrow Wilson.40 FDR sought and succeeded in enacting Social Security, a minimum wage, and protections for labor unions.41 The genesis of FDR's success of course was the Great Depression, in the economic calamity that followed the crash of 1929 the failure of the United States to provide assistance to the lower classes became plain to the millions who suddenly found themselves on the short end of the socio-economic stick.42 FDR himself went even further and called for a “Second Bill of Rights” that would guarantee economic rights such as a fair wage and health care to all Americans.43 Unfortunately this proposal was set aside due to World War II, and the years following would not always prove to be conducive to a discussion of class.44 The growing awareness following World War II of the threat posed by Communism and the massive and unprecedented growth of the American economy pushed discussion of economic rights to the side.45 Politicians and the general public conflated economic rights with Communist
39 40 41 42 43 44 45 Id. at 129. Jean Edward Smith, FDR, 86 (2008). Id. at xii. Id. at 241. Cass Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution, 1 (2006). Id. at 4. Landon Storrs, The Second Red Scare and the Unmaking of the New Deal Left, 1 (2012).

Alvis 8 philosophy and many felt that the rising tide of American economic growth meant that it was virtually impossible for someone who actually tried to move up the socio-economic scale to remain in poverty.46 Taken together with a growing tendency towards emphasizing American exceptionalism it is not difficult to see why the late 1940s and 1950s were not a great time to have a discussion of class in America. Growing awareness of the intense poverty and discrimination faced by AfricanAmericans helped reignite the discussion under Lyndon Johnson in the 1960s.47 Johnson was a committed New Dealer, FDR was very much LBJ's hero and father figure, and Johnson sought to build his Great Society as in some ways the completion of the New Deal movement.48 And in the immediate aftermath of the Kennedy assassination and Johnson's dominating victory in the 1964 presidential election he was highly successful in moving Great Society legislation forward.49 And while the Great Society did accomplish much, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Social Security Amendments Act of 1965 (Medicare and Medicaid), and the Fair Housing Act of 1968 to name but some of the more major accomplishments.50 Unfortunately though in many ways the project floundered because of the Vietnam War.51 Projects were not funded to appropriate levels as the war ate up more and more funding, and Johnson himself lost prestige and popularity.52 The Great Society was lost in the jungles of Vietnam and while it accomplished much, questions will always linger over what might have been. III. Class in America Today
46 47 48 49 50 51 52 Id. at 5. Id.at 3. Lance Morrow, The Best Year of Their Lives: Kennedy, Johnson, and Nixon in 1948, 43 (2006). Doris Kearns Goodwin, Lyndon Johnson and the American Dream, 215 (1991). Id. at 198. Id. at 251. Id. at 309.

Alvis 9 The Great Society was perhaps last real political discussion the United States has had about class. Since then class has in many ways fallen off the national radar.53 Though politicians will decry the rise in income inequality they will also often trot out the same old tropes about the classlessness of America and the importance of the American dream rather than addressing the fact that class is and has been an important part of American society and history.54 However the weight of the evidence is that income inequality is not only increasing but that it is becoming more permanent ingrained across generations, that education is becoming increasingly out of reach for millions of poorer Americans, and that more broadly the so-called American dream is increasingly something that is out of reach for many Americans could, perhaps, spur a renewed conversation about these issues. As it currently stands American law, culture, and society have moved further from recognizing the role that socio-economic class plays within each of them, while the American class structure has become ever more ossified. Studies indicate that American social mobility is at its lowest point since before the Great Depression.55 Compared to the 19th century and preWorld War II era when the United States was perhaps the most socially mobile of all developing and developed countries social mobility has markedly decreased.56 A recent study organized by the OECD shows that of all developed countries only the United Kingdom has a stronger correlation between father-son income than the United States.57 There is essentially a 0.4

53 Sunstein, supra, at 5. 54 Paul Ryan, U.S. Representative and Vice-Presidential Candidate, Address on Poverty in Cleveland, OH (Oct. 24, 2012), available at http://nation.foxnews.com/paul-ryan/2012/10/24/watch-paul-ryan-delivers-chilling-speechpoverty-war-poverty-poverty-winning. 55 Jason Long & Joseph Ferrie, Intergenerational Occupational Mobility in Britain and the U.S. Since 1850, available at http://www.colby.edu/economics/faculty/jmlong/research/USBritainIntergenerationalMobility.pdf. 56 Id. 57 OECD, Economic Policy Reforms: Going for Growth 2010, available at http://www.oecd.org/social/labour/economicpolicyreformsgoingforgrowth2010.htm.

Alvis 10 correlation between father-son income in the United States today, meaning that 40% of the difference in income levels in the parent's generation shows up in the child's generation.58 Much of this rising lack of income mobility is due to a concurrent ossification in intergenerational occupation mobility.59 For men born as part of the 1930 census cohort (entering the workforce beginning in roughly 1950), 49% could expect to move up from their father's occupational category while only 25% could expect to move down.60 For the cohort born in 1970 (entering the workforce in roughly 1990) though only 35% could expect to move up in occupational category while 32% could expect to move down.61 As social mobility decreases, people increasingly find themselves locked in repeating cycles of poverty.62 Millions of American children are now part of so called multi-generational poverty families where poverty and want are simply an inescapable part of life.63 One of the clearest indications of this increasing ossification comes from multi-generational wealth studies. One recent study, conducted by the Economic Mobility Project of the the Pew Charitable Trust, shows that 47% of Americans have at least $5,000 less in family wealth than their parents.64 Studies have found a markedly strong correlation (0.5) between parental and child wealth.65 The correlation was even stronger if looking solely at the extremes of wealth: both the very poor and

58 Emily Beller & Michael Hout, Intergenerational Social Mobility: The United States in Comparative Perspective, available at http://www.princeton.edu/futureofchildren/publications/journals/article/index.xml? journalid=35&articleid=85 59 Beller and Hout, supra. 60 Id. (The six occupational categories are upper professional or manager, lower professional or clerical, selfemployed, technical or skilled trade, farm, and unskilled and service workers.) 61 Id. 62 Tom Zeller, For America's Least Fortunate, The Grip Of Poverty Spans Generations, Huffington Post (Jan. 25, 2013), http://www.huffingtonpost.com/2012/03/01/american-poverty-rate_n_1304269.html. 63 Id. 64 Economic Mobility Project, Pursuing the American Dream: Economic Mobility Across Generations, (July 2012), http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Pursuing_American_Dream.pdf. 65 Id.

Alvis 11 the very rich tend to be far more ossified than the middle.66 And while lower income families are often at risk of losing whatever wealth they have managed to gain, the wealth of the super rich tends to grow in a measure that roughly approximates the Dow Jones Industrial Average.6768 For the 15.1% of Americans then who live in poverty according to the 2010 Census (an increase of 3.8% over the 2000 Census number) achieving the so called American Dream is a distant hope.69 In order to prevent the development of a semi-permanent poor underclass multiple studies have shown that increasing educational attainment is an incredibly effective and cost effective way to alleviate poverty.70 Improved education led to a 4% decrease in family poverty between 1969 and 2000.71 The effects of education on income are stark. Those with professional and doctoral degrees can expect to earn up to 4 times a week more on average than a high school dropout ($1,735 per week for a professional degree vs. $415 per week for a high school dropout.)72 And those with higher educational attainment often have an easier time finding employment. The averaged unemployment rate for those with a bachelor's degree or higher is 3.1% while the averaged rate for those with a high school diploma or lower is 10.4%.73 Unfortunately poverty is a key barrier to educational access.74 Between 2004 and 2007 the percentage of low income students entering 30 of America's most selective public and private
66 Id. 67 Economic Mobility Project, supra. 68 This interesting statistic is reflective of a recent survey that showed stock ownership levels were at an all time low in the United States. (http://www.gallup.com/poll/162353/stock-ownership-stays-record-low.aspx). 69 National Poverty Center, Poverty in the United States, http://www.npc.umich.edu/poverty/, (last visited May 2013). 70 Masood Sarwar Awan, Nouman Malik, Haroon Sarwar & Muhammad Waqas, Impact of education on poverty reduction, 3 International Journal of Academic Research, 659-664 (2011), available at http://mpra.ub.unimuenchen.de/31826/. 71 Jared Bernstein, Is Education the Cure for Poverty?, The American Prospect (Apr. 22, 2007), http://prospect.org/article/education-cure-poverty. 72 Bureau of Labor Statistics, Education pays... (2013), available at http://www.bls.gov/emp/ep_chart_001.htm. 73 Id. 74 Helen Ladd & Edward Fiske, Class Matters. Why Won’t We Admit It?, N.Y. Times, December 11, 2011, at A23, available at http://www.nytimes.com/2011/12/12/opinion/the-unaddressed-link-between-poverty-andeducation.html.

Alvis 12 universities actually fell at 25 of the observed institutions.75 This was in spite of programs implemented by all of the 30 universities to increase low income student enrollment numbers.76 While the universities in question had taken steps to ensure that students who met their entry criteria could afford to attend, they could not address the fact that for many low income students the chances of receiving a K-12 education of sufficient quality to help them meet those standards are slim. Low income students test at lower levels than middle or high income students in virtually every area of tested academic achievement.77 Low income students ranked on average in the 30th percentile for reading according to the ECLS while the same test showed that upper income students ranked on average in the 70th percentile.78 Another study, using a basket of different assessment criteria, indicated that on average poor students scored in the 19th percentile across all metrics while mid-upper income students averaged in the 66th percentile.79 While these tests and studies focused heavily on assessment done during the early or middle period of a child's K-12 career, other studies have shown strong correlations between parental income and a child's scores on that gatekeeper of the collegiate world: the SAT.80 Students whose parents made under $20,000 a year (the bottom quintile of all earners81) scored (on average) a 434 on the critical

75 Disappointing Progress in Enrollments of Low-Income Students at America’s Most Selective Colleges and Universities, Journal of Blacks in Higher Education. (last visited May, 2013), http://www.jbhe.com/features/61_lowincome.html. 76 Id. 77 Misty Lacour & Laura Tissington, The effects of poverty on academic achievement, 6 Educational Research and Reviews, 522 (2011), available at http://www.academicjournals.org/err/pdf/pdf%202011/july/lacour%20and %20tissington.pdf. 78 Id. at 523. 79 Id. at 522. 80 Catherine Rampell, SAT Scores and Family Income, Economix Blog (Aug. 27, 2009), http://economix.blogs.nytimes.com/2009/08/27/sat-scores-and-family-income/. 81 Tax Policy Center, Tax Facts, Brookings Center (Oct. 24, 2012), http://www.taxpolicycenter.org/taxfacts/displayafact.cfm?Docid=330.

Alvis 13 reading section, a 457 on the mathematics section, and a 430 on the writing section.82 In comparison students whose parents made over $100,000 (the top quintile of all earners83) a year scored an average of 539 on the critical reading, an average 553 on the mathematics section, and an average 534 on the writing section.84 Furthermore students with parents whose highest educational attainment was a graduate degree were over 5 times more likely to take the SAT than those whose parents were high school dropouts.85 This was in spite of the fact that adults with graduate degrees and high school dropouts comprise roughly equivalent percentages of the adult population (~13% for high school dropouts and ~11% for those with graduate degrees.)86 The reasons for these divergent educational outcomes is complex and controversial. Some point to a de-emphasis of education amongst lower income individuals and households.87 Other studies emphasize the importance of career goals in driving educational attainment.88 The problem is that many while many poor students do have career goals they simply reflect the careers they have been surrounded with their entire lives i.e. low income jobs often held by their parents or other family members.89 This stands in sharp relief to the common desire of students from high income households to move into high income jobs that require extensive education and training.90 This is buttressed by the rising amount of sociological evidence that indicates one
82 College Board, Total Group Profile Report, 4 (2010), http://professionals.collegeboard.com/profdownload/cbs2009-national-TOTAL-GROUP.pdf. 83 Tax Policy Center, supra. 84 Id. 85 Id. 86 U.S Census Bureau, Educational Attainment in the United States: 2012 - Detailed Tables, http://www.census.gov/hhes/socdemo/education/data/cps/2012/Table1-01.xls. 87 Donald Andrews, Andrew Washington, Ashagre Yigletu, & Saviour Nwachukwu, Influence of Poverty on Education Performance in Louisiana, 30 Southwestern Economic Proceedings, 36 (2002), available at http://www.ser.tcu.edu/2003-Pro/SEP2003%20Andrews%20et%20al%2035-44.pdf. 88 Dale Schunk, Goal Setting, http://www.education.com/reference/article/goal-setting/. 89 Ferguson, Bovaird, & Mueller, The impact of poverty on educational outcomes for children, 12 Pediatric Child Health, 701-705 (2007), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2528798/pdf/pch12701.pdf. 90 Tom Hilliard, Graduating to College, The Working Poor Families Project, (Summer 2012), available at http://www.workingpoorfamilies.org/wp-content/uploads/2012/09/policybrief-summer2012.pdf.

Alvis 14 of the most important indicators of future success is the number of connections that students make during school.91 Low income students are less likely to make such connections given the nature of the schools they attend.92 This lack of ability to make connections is partially a result of an increasing amount of income segregation within public schools.93 But the lack of educational connections is not the only result, income segregation also impacts the overall quality of the education that schools can provide.94 While some like to argue that while schools located in predominately low income areas are suffering due to a lack of interest in education95 they ignore the simple fact that regardless of the percentage of income a low income area spends on education it can never catch up with the spending power of high income areas. Since most educational funding is based on millage96 cities with low property values will have an incredibly difficult time equalizing funding with cities with higher values. Take for instance Detroit and Louisville, both Midwestern industrial cities with populations above 700,000. The average value of a singe family home in Detroit is $53,05097 while the value of a single family home in Louisville is currently $135,000.98 Detroit would therefore need to triple its millage to provide an equivalent level of local educational funding as Louisville.99 And while these funding issues are incredibly important for
91 Ferguson, supra, at 703. 92 Id. 93 Sean Reardon, The Widening Academic Achievement Gap between the Rich and the Poor, excerpt from Whither Opportunity?, 13 (July 2011), available at https://cepa.stanford.edu/sites/default/files/reardon%20whither %20opportunity%20-%20chapter%205.pdf. 94 Id. 95 Trip Gabriel, From Gingrich, an Unconventional View of Education, The Caucus Blog (Nov. 19, 2011), http://thecaucus.blogs.nytimes.com/2011/11/19/from-gingrich-an-unconventional-view-of-education/. 96 Millage Definition, Dictionary.com, http://dictionary.reference.com/browse/millage (last accessed May 2013). 97 Detroit Market Trends, Trulia.com, http://www.trulia.com/real_estate/Detroit-Michigan/market-trends/ (last accessed May 2013). 98 Louisville Market Trends, Trulia.com, http://www.trulia.com/real_estate/Louisville-Kentucky/market-trends/ (last accessed May 2013). 99 Detroit's millage rate is actually higher than Louisville's at 84¢ in every $100 of property value vs. 70¢. (Detroit millage rate available at http://www.degc.org/images/gallery/TAXES%202012.pdf; Louisville millage rate available at http://revenue.ky.gov/NR/rdonlyres/6411A040-F3F9-47C5-8E24-18AE9C3E277D/0/Jefferson.pdf.)

Alvis 15 students in unified school districts with equivalent funding across the board, income segregation within cities means that low income students are often stuck in lower quality schools with less opportunity to gain access to the connections and quality of education enjoyed by their fellows in higher income neighborhoods.100 IV. Class, the Constitution, and Education: San Antonio v. Rodriguez American law currently provides few remedies for these massive inequalities in educational achievement and attainment despite the massive evidence showing their existence and the important role education plays in alleviating poverty. Perhaps the most important federal case dealing with income in education issues was San Antonio Independent School District v. Rodriguez.101 Rodriguez dealt with issues of whether or not education is a “fundamental right” under the Constitution (drawing on prior decisions like Brown v. Board of Education of Topeka) and whether or not poor students constituted a class for Equal Protection purposes.102 The Court in a 5-4 decision written by Justice Lewis Powell decided both questions in the negative.103 The facts in Rodriguez are indicative of many of the educational inequalities noted above. The parents of children in the Edgewood Independent School District, located in western San Antonio, sued on behalf of children throughout the state of Texas alleging that Texas' school funding system was discriminatory.104 Texas' funding system relied on both state and local contributions. The state was divided into 254 “Local Assignment Areas,” each coextensive with a county, and assessed the local share each district would bear based on that county wide income assessment.105 While this was designed to ensure that each school district would pay a share
100 See Reardon, supra. 101San Antonio Indep. Sch. Dist. v. Rodriguez, 93 S. Ct. 1278 (1973). 102 Id. at 1281. 103 Id. at 1282. 104 Id. 105 Id. at 1283.

Alvis 16 roughly equivalent to its ability, it neglected to take into account that Texas school district boundaries were not always coextensive with county lines. Edgewood was located in what was arguably the poorest area of San Antonio, its average assessed property value and average household income were both the lowest in the metropolitan area.106 Furthermore, Edgewood was a predominately minority community, over 90% were Hispanic and over 6% were African-American.107 However while Edgewood was one of the poorest areas of Bexar County, it was still required to provide the certain minimum level of funding required for all districts located within the County. In order to do so, Edgewood ISD maintained the highest local property tax rate of any district in the San Antonio metropolitan area-$1.05 per $100 of property value-resulting in $251 per pupil, $26 over the local minimum funding required.108 When coupled with other sources of state and federal funding this resulted in an average per year per student expenditure of $356 over the minimum.109 By comparison Alamo Heights ISD (located 14 miles north of Edgewood) was one of the wealthiest areas in the metropolitan area.110 Alamo Heights was a predominately white area, with an average assessed property value of $49,000 and an average household income of $8,000.111 Property taxes of 85¢ per $100 of assessed value resulted in an average local contribution of $558 per pupil per year, $333 above the minimum funding level.112When combined with other sources Alamo Heights was able to provide $594 per year per pupil in funding, approximately 160% more than Edgewood.113
106 93 S. Ct. at 1285. 107 Id. 108 Id. 109 Id. 110 Id. 111 Id. at 1286. 112 Id. 113 Id.

Alvis 17 The plaintiffs argued (and succeeded at the trial level) the claim that such a vast disparity in school funding violated the Equal Protection Clause.114 They argued that this was no different from other forms of wealth discrimination identified and struck down by the Supreme Court.115 In particular they drew parallels between the funding of schools and indigent access to lawyers in criminal trials and wealth based restrictions on the right to vote.116 However the Court distinguished school funding from other forms of wealth discrimination by stating that the plaintiffs had neglected to define the class which faced discrimination.117 The Court stated: “The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.”118 The Court also argued that unlike other suspect classes the group at issue here had never experienced “a history of unequal treatment...” nor was it “politically powerless.”119120 The Court then moved into the right to education aspect of the plaintiff's complaint. While the Court reaffirmed Brown's conclusion that “education is perhaps the most important function of state and local governments,” it held that education was not a fundamental right under the Federal Constitution.121 The Court held that it had no business creating rights not explicitly recognized under the Constitution solely for the purpose of promoting equal

114 Id. at 1288-1289. 115 Id. at 1289. 116 93 S. Ct. at 1289. 117 Id. 118 Id. at 1290. 119 Id. 120 Perhaps unsurprisingly the Court provides no evidence or argument to support these conclusions. 121 93 S. Ct. at 1295.

Alvis 18 protection.122 In upholding Texas' school financing system the Court implicitly recognized that socioeconomic class in the context of education was not something worthy of Constitutional protection. As the Court noted, in the context of certain forms of wealth discrimination at least: “the Equal Protection Clause does not require absolute equality or precisely equal advantages.”123 While this decision obviously foreclosed the possibility of federal recognition of socio-economic discrimination in school funding, the Court could not foreclose the ability of state's to do sowhich shall be further discussed infra. And by not adding socio-economic status in education to the list of constitutionally protected statuses, the Court, perhaps unknowingly, left the door open for a completely different approach to remedying economic disparities in education: targeted school integration plans. V. Problems and Opportunities The current lack of recognition of class in American law creates both problems and opportunities for those seeking to incorporate socio-economic status into education decisions. A useful example of how this lack of protection might work in favor of lower class students are the Court's recent decisions around race in education. The Court in Grutter v. Bollinger reaffirmed its central conclusion from Regents v. Bakke by upholding the tailored use of race in admissions.124 However the Court also noted that such actions should be temporary, as it noted that perhaps “25 years from now” any sort of race based admission scheme would be impermissible.125 In dissent, Justice Thomas noted that if race based admissions program would

122 Id. at 1297. 123 93 S. Ct. at 1291. 124 Grutter v. Bollinger, 123 S.Ct. 2325, 2329-2330 (2003). 125 Id. at 2347.

Alvis 19 be unconstitutional in 25 years how could it be constitutional now.126 Justice Scalia, in a concurrence in Ricci v. DeStefano, suggested that any governmental classification based on race would be unconstitutional.127 The underlying constitutional argument is that since race is a protected class under the 14th Amendment, race based classifications even those which serve a beneficial purpose receive strict scrutiny.128 The Court in recent years has been moving towards a strict textual interpretation of the 14th Amendment that strikes down even helpful classifications under the broad aegis of the anti-classification doctrine. Because socio-economic class is not recognized in a similar fashion, government's have more ability to draw class based distinctions. By utilizing this greater freedom to classify based on socio-economic factors, schools can incorporate those factors into their integration schemes with more flexibility than is often afforded to race. And given the close track between race and socio-economic classification it is possible to create an integration scheme based around socio-economic factors that will also ensure protection of racial minorities without requiring direct governmental classification based on race.129 VI. Socio-economic integration: The Berkeley Plan One of the most interesting school integration plans comes from the Berkeley Unified School District in California which revamped its school admission plan to incorporate socioeconomic factors.130 In some ways this is likely a response to the issues faced by California jurisdictions in instituting racially conscious school integration plans following the passage of
126 Id. at 2351. 127 Ricci v. DeStefano, 129 S.Ct. 2658, 2682 (2009). 128 Richard Primus, Equal Protection And Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 502-503 (2003). 129 Tami Luhby, Worsening wealth inequality by race, CNN Money (June 21, 2012), http://money.cnn.com/2012/06/21/news/economy/wealth-gap-race/index.htm. 130 Berkeley Unified School District, BUSD Student Assignment Plan/Policy, Berkeleyschools.net, http://www.berkeleyschools.net/information-on-berkeley-unifieds-student-assignment-plan/.

Alvis 20 California Proposition 209. Prop 209 prohibited making classifications in public education on the “basis of race, sex, color, ethnicity, or national origin...”131 As a result California schools and universities had to rework their integration plans to avoid making direct classifications based on race.132 To illustrate the difficulty of this, enrollment of African-American students at many campuses in the University of California System dropped significantly following Prop. 209.133 To get around this problem, Berkeley Unified School District turned to socio-economic factors.134These were not covered under Prop. 209's ban on classifications and as noted by the Berkeley School District socio-economic factors have traditionally been roadblocks towards accessing quality education.135 Lower socio-economic class was also noted as being associated with racial or ethnic minority status, so by incorporating these factors, the Berkeley School District was still able to rectify racial discrimination through the utilization of a sort of stand in data set. The Berkeley plan operates by dividing the city into a set of 445 “planning areas” typically comprised of approximately 4-8 city blocks.136 Each “planning area” is then given a score of 1, 2, or 3 depending on a composite score based on three factors: I. Average household income (taken from the census), II. Parental education level (also taken from the census), and III. Racial/Ethnic makeup (taken from self-identification of K-5 students).137 Each factor is then placed into a formula to yield an integer value.138 For instance the parental income factor is
131 Cal. Const. art. I, § 31. 132 Peter Arcidiacono et al., Affirmative Action and University Fit: Evidence from Proposition 209, (Nov. 1, 2012) (unpublished manuscript) (available at http://public.econ.duke.edu/~psarcidi/prop209instfit.pdf). 133 Michael Dobbs, Universities Record Drop In Black Admissions, Wash. Post, November 22, 2004, at A01, available at http://www.washingtonpost.com/wp-dyn/articles/A2830-2004Nov21.html. 134 Berkeley Unified School District, supra. 135 Id. 136 Id. 137 Id. 138 Id.

Alvis 21 figured through the use of the following formula: 33 x (2. + (Parent Income Level – 34000)/ (70000 – 34000) ).139 The integers produced from all three factor formulas are then added together. The highest priority “planning areas”, those with the lowest levels of parental income, education, and the highest proportion of racial and ethnic minorities are assigned a value of 1.140 Students are then entered into a lottery for school slots with priority based upon score of the student's “planning area” combined with geographic proximity to the school in question.141 The Berkeley plan has come under close scrutiny by California courts.142 In American Civil Rights Foundation v. Berkeley Unified School District, the court held that Berkeley's plan was constitutional.143 Interestingly the court's analysis was focused exclusively on determining whether the formula's use of neighborhood racial/ethnic demographic information was allowable under Proposition 209, there was no challenge to the use of other socio-economic factors.144 Clearly then socio-economic factors can be taken into account even in jurisdictions where the more traditional race based integration plan is disfavored. Also the court's ruling shows that the use of demographic data to construct an integration regime does not necessarily violate restrictions on the ability of districts to utilize race as a factor.145 Instead, as the Court indicates, this is simply looking at demographic data, not drawing an independent distinction based on race.146 VII. The Berkeley Plan in Louisville: A Hypothetical The Berkeley plan described above does an excellent job of incorporating socio139 Berkeley Unified School District, supra. 140 Id. 141 Id. 142 Am. Civil Rights Found. v. Berkeley Unified Sch. Dist., 172 Cal. App. 4th 207, 211 (2009). 143 Id. 144 Id. at 217-219. 145 Id. at 219. 146 Id.

Alvis 22 economic status into the calculus of an school integration plan. Berkeley however is a relatively wealthy city where the lower socio-economic classes are also predominately racial and ethnic minorities. So using socio-economic factors there is likely to function as a fairly effective stand in for more traditional race metrics. However one of the things we must look at is how effective would it potentially be in rectifying the problems in a city where the underprivileged population cannot so easily be broken down into racial and ethnic categories along socio-economic lines. The city of Louisville presents an interesting example. Louisville is reasonably close the national average in terms of percentage of white and African-American residents. 77.18% of its 746,906 residents are White (compared to the national average of 72.4%) and 18% of its residents are African-American (compared to 12.6% nationally.)147148 Furthermore Louisville's median household income of $39,457 is not much below the national average of $45,018.149150 Louisville represents then a fairly representative American city in terms of both demographics and income. But the picture gets more complicated when one focuses not on the city as a whole but instead on the city broken down by ZIP code. Louisville is comprised of 66 separate zip codes of which 31 represent geographic subdivisions (the remainder are used only for P.O. Boxes.)151152Examining the demographics of the various Louisville ZIP codes reveals a startling
147 “USA Quick Facts,” Data Set: Census, 2010, available at: http://quickfacts.census.gov/qfd/states/00000.html, (last accessed May 2013). 148 ”DP-1, Age and Race: 2010 – Kentucky – Jefferson County,” Data Set: Census, 2010, available at: American FactFinder (Census Bureau), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml? pid=DEC_10_DP_DPDP1, (last accessed May 2013). 149 USA Quick Facts, supra. 150 ”DP03, Income and Education: 2010 – Kentucky – Jefferson County,” Data Set: Census, 2010, available at: American FactFinder (Census Bureau), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_5YR_DP03, (last accessed May 2013). 151 Louisville Zip Code Map, city-data.com, http://www.city-data.com/zipmaps/Louisville-Kentucky.html, (last accessed May 2013). 152A complete chart of all Louisville's ZIP codes with income and racial information can be found in Appendix A.

Alvis 23 correlation between race, income, and educational attainment. For instance out of Louisville's 31 geographic ZIP codes 7 had a median household income under $30,000 per year.153 Those 7 had an average black population of 60.5% with 13.3% of the population (on average) holding a bachelor's degree or higher.154 This stands in stark contrast with the 9 ZIP codes that have an average household income over $60,000.155 These 9 have an average black population of 7.3% with 50.1% of the population holding a bachelor's degree or above.156 Statistics like these show the intersecting influence of race and educational achievement on class (where class is measured by household income.) Louisville has previously sought to ameliorate these issues, as well as Louisville's history of segregation through a fairly traditional integration policy aimed at promoting racial integration and improved minority access to schools.157 However following the Supreme Court's decision in Parents Involved in Community Schools v. Seattle, Louisville had to scrap its policy after the Supreme Court found that it was an unconstitutional classification based on race.158As a result of this, Louisville schools have experienced a creeping resegregation, something which appears to be somewhat common in schools that have been released from desegregation orders and lack strong school integration plans or policies.159160 As shown by the statistics, supra, Louisville is a city with a strong identification between
153 See infra Appendix A. 154 Id. 155 Id. 156 See infra Appendix A. 157 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2741 (2007). 158 Dakarai Aarons, Jefferson Co. Schools Sued Over Student-Assignment Plan, District Dossier at EdWeek.com, available at http://blogs.edweek.org/edweek/District_Dossier/2010/06/jefferson_co_schools_sued_over.html. 159 Michael Martz, Experts explore new segregation in schools, Richmond Times-Dispatch, available at http://www.timesdispatch.com/news/local/city-of-richmond/experts-explore-new-segregation-inschools/article_e85a4998-0fba-55c0-bbe4-ff7e3cf468b7.html. 160 Daniel Levine, Schools resegregate after being freed from judicial oversight, Stanford study shows, Stanford News, available at http://news.stanford.edu/news/2012/december/schools-resegregation-study-120412.html.

Alvis 24 geography, income, and race. As such a Berkeley-style plan with a few modifications might be the perfect fit for a city like Louisville. In fact given the strong correlation in Louisville of income and race to ZIP code and census tract they would not need to go as far as Berkeley in dividing the city up into “planning areas.” A broader scheme based on ZIP codes and census tracts would likely be even less likely to run afoul of race classification restrictions since it is much broader and perhaps more importantly is set by an impartial third party: the United States Postal Service.161As noted in ACRF the child applying for school admission would only be considered on the basis of the demographics of the ZIP code in which the child lived.162 This could help ensure that poorer children would be able to gain access to superior schools located outside their ZIP codes. A common argument against this type of integration system though is that by basing things primarily on socio-economic class, the greater number of poor whites would push out African-Americans. To combat this without making direct racial classifications, one could go even further into underprivileged ZIP codes by breaking them down further into census tracts. Utilizing census tracts would allow for even more narrow targeting of underprivileged socioeconomic communities. For example there are 4 census tracts within the 40203 ZIP code in Louisville.163 The average median income for a white household within these tracts is $24,486 while the average income for an African-American household is $11,643.164 Furthermore while the overall racial
161 Anna Clark, The Tyranny of the ZIP Code, The New Republic, available at http://www.newrepublic.com/article/112558/zip-code-history-how-they-define-us. 162 172 Cal. App. 4Th, supra, at 219. 163 2010 Census Tracts with Urban Neighborhoods in Louisville, KY, available at http://www.lojic.org/products/pdfs/maps/cencity4x3.pdf. 164 ”S1903, Median Income and Race: 2010 – Kentucky – Jefferson County,” Data Set: Census, 2010, available at: American FactFinder (Census Bureau), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?

Alvis 25 makeup of this ZIP code is an approximately 60-40% split between African-Americans and Whites the census tracts are all fairly segregated.165 Most of the total black population lives in two census tracks. Both of which have over 90% African-American population.166 So while no one who lives in this ZIP code could truly be said to be on the upper end of the socio-economic ladder, it is clear that at the very bottom is a deeply underprivileged African-American community.167 Thankfully the Berkeley plan allows for the flexibility to include this within our socioeconomic integration framework. One could use census tract information to identify the minority population of a potential student's home census tract compared to the ZIP code or city as a whole. This could also be done with income to ensure that students from the lowest income census tracts will have priority even if they somehow manage to find themselves located within a ZIP code with a higher income overall. VIII. Berkeley in Higher Ed While the application of this system to K-12 districts might seem somewhat obvious, it could be argued that the Berkeley system would not be as effective if applied to collegiate education. It is perhaps in this arena where using a census and the Berkeley formula would be most effective. Take for instance the University of Michigan. Michigan has reported problems with students reporting lower parental income than what their parents are actually making as well as increasing numbers of students from a relatively privileged class background.168 Michigan is
pid=ACS_11_5YR_S1903&prodType=table, (last accessed May 2013). 165 Id. 166 Id. 167One interesting and slightly confusing note on census tract information. There was on average a much greater margin of error regarding White median household income (~+/-$11,000) than African-American (~+/-$1,000.) 168 David Leonhardt, As Wealthy Fill Top Colleges, Concerns Grow Over Fairness, N.Y. Times, available at http://www.nytimes.com/2004/04/22/us/as-wealthy-fill-top-colleges-concerns-grow-over-fairness.html.

Alvis 26 also now prohibited from making racial classifications in admissions as a result of Proposition 2.169 Michigan could therefore use a formula similar to the one used by Berkeley but with the added factors of high school GPA and test scores (obviously the relative weight of all these factors is up for debate.)A census tract based admissions program then could help Michigan increase both racial and income diversity without relying on direct racial or self-reporting of parental income. Furthermore given the fact that all demographic information for each individual tract is easily available for free online it would help to counter a criticism of more traditional integration policies as opaque and difficult to understand.170 By publishing the formula online a school could make its admissions policy incredibly transparent, something which would benefit students regardless of class or color. One potential problem that might arise from such a plan would be higher income families moving to low income areas in order to help their children get a leg up in the admissions process. This is an incredibly important issue that all socio-economic based school integration plans must address in order to ensure legitimacy. One of the key ways to prevent such exploitation would be making the socio-economic factors not determinative for admissions purposes but merely one of several plus factors (to use the language of Grutter.)171 Universities and colleges that wished to implement such a plan should also seek to ensure accurate reporting of parental income within the context of the factors of the plan. One way to do this might be through the FAFSA. Since the FAFSA relies on tax data to gain parental income information it is likely the most accurate source of this information available to universities.172 With parental income information in hand,
169Mich. Const. art. I, § 26. 170 Richard Sander & Stuart Taylor, Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit, 201-215 (2012). 171 123 S. Ct., supra, at 2342. 172 Tanya Abrams, Ask a Financial Aid Expert About the Fafsa, The Choice Blog at NYTimes.com, available at http://thechoice.blogs.nytimes.com/2013/01/10/guidance-office-fafsa/, (last accessed May 2013).

Alvis 27 the college or university could set a poverty level (possibly with variations by region) and only activate the socio-economic bonus if that standard was met. By tailoring the plan in this way colleges and universities could help to ensure that a high income family in a low income area would not gain access to programs designed to aid those less fortunate. UCLA Law School has also had a fair amount of success with so called socio-economic and “Critical Race Studies” factors in the admissions process.173 Yet the problem has been ensuring that the system doesn't simply admit predominately low income whites while neglecting low income minorities.174 Again the Berkeley formula provides an elegant solution. By incorporating the amount of minorities in the district as a part of a broader demographic formula it allows for the inclusion of race as a part of other demographic factors taken into account when analyzing the ZIP code or census tract. However care must be taken to balance to competing interests/problems. The plan should seek to ensure that minority students on the lower end of the socio-economic spectrum have access to higher education, but given the current Supreme Court's dislike of even beneficial racial classifications (See Grutter, Ricci, supra.) care must be taken not to produce a plan that directly classifies on the basis of race. It is worth noting though that the plan as implemented by Berkeley has withstood challenges under California's highly restrictive Prop 209.175 Given this ability to withstand the strict standards of California's anticlassificationist law it might be able to stand up to the strict standards of the current Court. If not, alternative measures for incorporating race without actually doing so could be devised. For instance schools could designate primarily minority heavy low income census tracts for receiving
173 Daniel Golden, Schools Find Ways to Achieve Diversity Without Key Tool State Affirmative-Action Bans Bring Creative Solutions at UCLA, Elsewhere, Wall St. J. (June 20, 2003), available at http://www.calstate.edu/pa/clips2003/june/20june/diverse.shtml, (last accessed May 2013). 174 Id. 175 See 172 Cal. App. 4th 207, supra

Alvis 28 the bonus. This could be justified by pointing out that many of the lowest income tracts are predominately minority and that only the very lowest incomes should in fact receive this bonus.176 While attempting to predict the Court's reaction to an issue is always difficult it would seem that they would likely find at least the underpinnings of this structure to be constitutional. While even a weak racial component such as envisaged by Berkeley might go against Justices Scalia and Thomas' strict interpretation of the 14th Amendment, in order to strike down the socioeconomic components would require a recognition of social class as a protected status under the 14th Amendment and such a broad decision seems unlikely. Much of the discussion of the Berkeley style system has focused on its applicability within an urban context and in ensuring that racial minorities would be adequately represented. And while these are obviously enormously important things to consider, it is also worth thinking about the incredible benefits that a school integration scheme that seriously took income into account would have on the millions of Americans who live in rural poverty. 16.2% of rural Americans live under the poverty line.177 Furthermore the rate of persistent generational poverty is higher among rural Americans than it is for those who live in cities.178 Rural high school graduates are also substantially less likely to attend college, with the rate of rural students achieving a bachelor's degree at only 15.8% compared to 30% of urban students.179Rural high schools are also less likely to offer diverse educational programs or educational choices such as

176 Interview by Jacki Lyden with Stephen Klineberg, Ph.D, Professor of Sociology Rice University, Director of the Kinder Institute of Urban Research, (Aug. 13, 2012), available at http://www.npr.org/2012/08/13/158694543/anew-kind-of-segregation-income-segregation, (last accessed May 2013). 177 The Housing Assistance Council, Poverty in Rural America,(Sep. 2011), available at http://www.ruralhome.org/storage/documents/info_sheets/povertyamerica.pdf, (last accessed May 2013). 178 Id. 179 Roberto Gallardo & Bill Bishop, College Degree Gap Widens, Dailly Yonder, (Mar. 27, 2012), available at http://www.dailyyonder.com/college-degree-gap-widens/2012/03/26/3828, (last accessed May 2013).

Alvis 29 those found in many urban high schools.180 While the Berkeley style school integration plan could do little for rural students when faced with only one high school. It could be a serious boon to those applying for college. By recognizing socio-economic factors alongside race, those students from the poorest and underprivileged rural high schools (many of which in states like Arkansas are actually predominately white) would have access to higher education, something that for many would have likely been thought impossible by their parent's or grandparent's generations. If one feels that the goal of a school integration program is to redress past inequalities in educational opportunity obviously race is something that must be taken into account. But at the same time, refusing to acknowledge that there are underprivileged educational communities of all races throughout the country seems counter-productive. The beauty of something like the Berkeley plan is that it manages to effectively combine socio-economic class with race into school integration plan that could expand access for those who have traditionally been excluded from education of all races and locations. This broader applicability and broader appeal could help make this Berkeley style plan more acceptable to those who do not currently support various other forms of school integration plans. Polling on these issues is difficult as results often appear contradictory. For instance in a recent Pew survey on affirmative action 65% of those surveyed disagreed with the statement “we should make every effort to improve the position of blacks and minorities, even if it means giving them preferential treatment,” however when asked whether or not they supported “programs to help blacks, women and other minorities get better jobs and education,” 70% were in favor of expanding such programs.181 So it appears that while
180 NCES, Status of Education in Rural America, available at http://cssrs.ou.edu/files/report2007040highlights.pdf, (last accessed May 2013). 181 Pew Research Center, Public Backs Affirmative Action, But Not Minority Preferences, (June 2, 2009), available at http://www.pewresearch.org/2009/06/02/public-backs-affirmative-action-but-not-minority-preferences/, (last

Alvis 30 people are in favor of programs to improve access to education for minorities they are not in favor of doing so if it appears that such a program will grant them “preferential treatment.” It is here that the Berkeley plan might be able to garner more support. By shifting the focus away from race and onto socio-economic class, something which can cut across racial lines, and ensuring that at least a few poor whites will be helped, this idea that only racial minorities will be receiving preferential treatment will no longer be operative. Furthermore given that even liberal outlets have noted the opacity of some affirmative action plans, the transparency of the Berkeley plan would likely be appealing to many of those who while supporting the concept of helping minorities, do not like the current methods for implementing the plans.182 IX. Another Solution? Rethinking School Funding A Berkeley style school integration plan though is not a panacea for redressing all of the ills caused by lack of access to quality education. In many areas poverty is so pervasive and educational access so restricted that the problem is not ensuring access to better high schools as there are simply no decent high schools available. In many areas this lack of educational quality can be traced back to inadequate funding. Most school districts rely on a mix of state and local funding. In practice this means that despite poorer areas often having higher local taxes for education they lag behind wealthier areas in terms of actual dollars of funding.18317 states utilize a progressive funding system that seeks to minimize these funding differences.184 Perhaps not surprisingly these states are often ranked at the top in educational quality studies.185The question
accessed May 2013). 182 Jeffrey Rosen, An Affirmative Action Solution Even Conservatives Should Love, Plank Blog (Oct. 10, 2012), available at http://www.newrepublic.com/blog/plank/108427/affirmative-action-solution-even-conservativesshould-love, (last accessed May 2013). 183 See discussion of San Antonio, supra. 184 Education Law Center, Is School Funding Fair?,available at http://www.schoolfundingfairness.org/National_Report_Card_2012.pdf. 185 Annie E. Casey Foundation, Education Ranks, available at

Alvis 31 of school funding and the issues arising from unequal ability of districts to provide services have come before several courts and legislative bodies. Some of the most important cases dealing with these issues are San Antonio v. Rodriguez (discussed supra), a series of cases entitled C.F.E. v. New York,186 and Serrano v. Priest.187 C.F.E and Serrano were both decided post-San Antonio v. Rodriguez. Serrano was decided in 1976 by the California Supreme Court.188 The California SC held that while San Antonio had removed the possibility of using the Federal Constitution to protect lower income students, the California Constitution and its guarantees of equal protection invalidated California's unequal school financing scheme (California's scheme was in many ways similar to the one discussed in San Antonio, supra.)189 The Court struck down the part of the law that allowed wealthy districts to provide funds over the minimum funding level required and encouraged the legislature to pass a new law based off of one of several alternative financing schemes discussed.190 The California Legislature was still grappling with this issue as of 2013.191 In C.F.E. v. State of New York, the New York Court of Appeals found that the New York Constitution's guarantee that “The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated,” meant that wide disparities in school financing had to be resolved in order to provide for the education of all students.192 The Court of Appeals also heavily focused on the importance of education as
http://datacenter.kidscount.org/data/acrossstates/Rankings.aspx? loct=2&by=v&order=a&ind=7247&dtm=14341&tf=868. 186 Campaign for Fiscal Equity, Inc. v. New York, 100 N.Y.2d 893 (2003). 187 Serrano v. Priest, 18 Cal. 3d 728 (1976) supplemented, 569 P.2d 1303 (1977). 188 18 Cal. 3d at 735. 189 Id. at 748. 190 Id. at 747. 191 Michael Mishak, California voters split on Jerry Brown school plans, L.A. Times (Mar. 23, 2013), available at http://articles.latimes.com/2013/mar/23/local/la-me-education-funds-20130323, (last accessed May 2013). 192 100 N.Y.2d at 901-902.

Alvis 32 necessary to produce citizens capable of functioning in modern society.193 It held that the New York Legislature had to ascertain the actual cost of providing a “sound education” to every student and then create a funding scheme that would provide for such an education to all of New York's students.194 14 states, including New York, now include the poverty level of the district when distributing state aid to schools.195 A further 5 states incorporate the cost of living within the district for purposes of funding.196197 These 19 states rank among the top in terms of equality of funding in education and many are amongst the top states for overall quality of public education.198 This is an important statistic for many reasons, but perhaps most importantly it shows that a common talking point against equal education funding-that equal funding would harm wealthy districts-simply isn't the case. Rather it would appear that equal funding helps level the playing field for all students in the same way that a rising tide lifts all boats. Further polls show that voters are open to the idea of funding schemes that seek to equalize differences across district lines, a recent poll from California shows that despite fierce opposition from entrenched interests a proposal to shift funds from wealthy to poorer districts is viewed favorably by 50% of the population.199 X. Conclusion In order to build support for either the school integration plan pioneered by Berkeley to be implemented on a larger scale or for more equality in school funding politicians must be
193 Id. at 905-906. 194 Id. at 930. 195 Education Law Center, Funding, Formulas, and Fairness; (Feb. 2013), available at http://www.elcpa.org/ELC_schoolfundingreport.2013.pdf, (last accessed May 2013). 196 Id. 197 Hawaii is irrelevant for both of these purposes as the state of Hawaii fully funds every school district. 198 Annie E. Casey Foundation, supra. 199 Mishak, supra.

Alvis 33 willing to bring the conversation in America back around to class. And it appears that more and more politicians are willing to do so, Governor Jerry Brown in California has staked much of his second term on securing equalized school financing200 and former Arkansas Governor Mike Huckabee ruined his image with a substantial part of the Republican base by championing school reform.201 American's today face an ever more stratified and class based society based in large part on an ever increasing amount of income segregation in education.202 If the United States truly wishes to have a classless society, it must first tackle the problem of class in the classroom.

200 Id. 201 Lance Turner, Survey Shows Initial Opposition to School Consolidation, Arkansas Business (Jan. 28, 2003), available at http://www.arkansasbusiness.com/article/56746/survey-shows-initial-opposition-to-schoolconsolidation, (last accessed May 2013). 202 Reardon, supra.

Alvis 34 Appendix A Compiled from 2010 Census Data available at http://factfinder2.census.gov
ZIP Code Median Household Income White % Black % Bachelor+ % HS Dip+% Population 40202 21678 39.3 54.7 20.6 79.5 6772 40203 15809 31.7 63.9 17.1 70.2 19694 40204 62257 86.8 9.1 47.6 92.6 14236 40205 67720 94.1 2.6 84.4 95.5 23678 40206 44433 85.3 9.3 48.4 91.6 18865 40207 64130 91.5 3.5 58 96.2 29745 40208 25641 63.1 29.4 25.3 78.6 13227 40209 36480 83.9 5.8 6.5 60.6 360 40210 18490 7.1 89.7 7 75 14822 40211 23289 3.6 93.9 9.3 79.1 22612 40212 26712 36.9 60.1 5.9 74.9 17685 40213 38475 74.2 18.3 16.9 86.2 16796 40214 40359 73.1 14.8 16.2 83.5 45291 40215 25313 59.1 31.9 7.9 72.9 22287 40216 39513 61.1 34.6 10.9 80.9 40746 40217 41204 86.6 7.4 29.8 87.5 12507 40218 34177 51.4 39.3 24.2 87 31658 40219 39586 68.4 21.6 11.4 81.5 38032 40220 52170 78.8 14 36.1 95.4 33109 40222 57513 84.8 7.3 49.9 92.8 21359 40223 68551 84.3 8.8 50.6 96.2 22011 40228 59049 79.5 14.7 26.2 90.5 15743 40229 51169 89.6 5.8 13.2 84.3 36852 40241 80538 79.9 9.8 59.1 96.9 28988 40242 60168 84.8 8.5 45.9 94.3 10930 40243 61263 89.2 5.6 41.9 95.9 10210 40245 94340 82.8 9.2 55.6 96.6 30109 40258 47854 84.9 11.3 9.9 86.6 26465 40272 46955 91.8 4.1 9.8 83.5 37394 40291 61266 84.2 10.3 27.9 93.4 35427 40299 71310 86.5 8.1 35.6 92.1 38371

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