Unequal Funding of Public Education and the Conventional Criticism of Affirmative Action

-- By CMcKinney - 13 Mar 2015

Arguing against Affirmative Action

The Assignments

During my final semester as a college student, I was assigned to argue against the use of affirmative action in university admissions: Twice. Once for a speech in a public speaking course and once for a class debate on the African American experience since Reconstruction. I began my research by seeking out the legal status of affirmative action programs in America today: The Supreme Court has approved affirmative action programs designed to improve learning outcomes by increasing student body diversity. And as I explored the conventional criticisms of the use of race preference in university admissions, I encountered few surprises.

The Traditional Critical Narrative: State-sanctioned racial discrimination

Lino Graglia, a professor at the University of Texas School of Law, is a good authority for anyone seeking to familiarize himself with the narrative:

Lino Graglia isn't a good authority. He's a well-known high-intelligence batshit crazy person. He was already an old loon when I was a young teacher, nearly thirty years ago. Perhaps in Texas, where George W Bush is a statesman and Ted Cruz is brilliant, Graglia is an authority. They must love getting some smart teenager to impersonate him in debates against their own social interest, those Texans.

Affirmative action is inconsistent with the traditional American ideal that all people are equal in the eyes of the law and should be treated as individuals, rather than as members of racial groups. This argument may seem fair at first glance: Why should an applicant with lower grades and standardized test scores be selected over a more qualified candidate simply because of his race. And, as Graglia notes, poor academic performance is more prevalent among black and Hispanic students. The penultimate sentence in Chief Justice Roberts’ opinion in Seattle School Dist. No. 1 strikes a similar chord: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In that case, five members of the Court struck down two public school districts’ use of individualized racial classifications in student assignment plans, which were designed to cure the effects of de facto segregation. Seattle School District No. 1, for example, sought to enroll more non-White students at the wealthy high schools located on the city’s north end.

Affirmative Action and Disparate Public School Funding

On a superficial level, affirmative action programs designed to further learning outcomes for university students and desegregation plans designed to integrate excluded public students may not seem directly related. But as I sat at my desk in San Antonio, Texas, I could not help but wonder whether inequal access to education afforded to public school children was at least partially responsible for the widespread use of affirmative action in university admissions. I soon found the relationship between the two was illuminated by a 1973 Supreme Court decision involving a school district less than a mile down the road.

SAISD v. Rodriguez (1973)

Comparing Alamo Heights ISD and Edgewood ISD

Nineteen years and four Nixon appointees after a unanimous Supreme Court declared that public education “must be made available to all on equal terms,” the Court heard San Antonio Independent School District v. Rodriguez. This lawsuit was filed in 1968 against Alamo Heights ISD by members of the Edgewood Concerned Parents Association, who alleged that the Texas School Finance System (TSFS) violated the Equal Protection Clause by granting markedly more per student funding to school districts in wealthy areas than poorer districts. Because about half of school funding was based on property tax revenues under TSFS’s financing scheme, Edgewood received $356 in public funding per student annually, while Alamo Heights received $594 for each of its students. In Alamo Heights, the most affluent district in the city, a sizable majority of students were white. In Edgewood, located on the city’s low-income Inner Westside, 97% of students were Hispanic. The extra $238 of funding per student went a long way: Alamo Heights had one teacher for every 19 students, Edgewood had one for every 28; Alamo Heights had 9.42 library books per student, while Edgewood had 3.9; finally, Alamo Heights had one counselor for every 1,553 students, while Edgewood had one counselor for every 5,672 students.

The Decision and Continuing Conflict in Texas

Despite the Brown mandate of equal access to education for all on equal terms and the vast disparities in funding and resources afforded to school children based solely on their addresses, five members of the Supreme Court voted to uphold the funding scheme. Justice Powell, writing for the majority, concluded that poverty is not a suspect classification subject to strict scrutiny and that education is not a fundamental right under the Equal Protection Clause. The battle over school funding in Texas did not end with Rodriguez. Since 1989, four different funding plans have been held to violate the state constitution, based on findings of inadequacy, inefficiency, and inequality. Nonetheless, the stopgap measures have continued to base about half of funding on local property taxes; in 2012, the 100 richest districts in Texas received about $8,000 of funding per student, while the poorest 100 districts received $5,000.

The Real Question

I am not under the false impression that I am better versed in the levels of scrutiny or fundamental rights than the five justices who upheld TSFS’s financing scheme. Nonetheless, it seems inescapable that it is unfair for some children to receive a better education than others in state-funded public schools solely because of the location of their homes. And in March 1973, the highest court in the United States affirmed that unfairness. There comes a time when implications become more important than formulas.

The Connection: Unequal Access to Education Spurs the Use of Affirmative Action

It seems clearly within reason that affirmative action would not be the hot button topic worthy of assigning to college students for class speeches or debates it is today if one member of the Rodriguez majority had switched his vote. Lino Graglia might be correct that African American and Hispanic applicants tend to perform worse academically than white students. However, I hope he takes note that, at least in his home state, African American and Hispanic students are far more likely than whites to attend disparately underfunded public schools. I cannot say that affirmative action is the correct way to assure that certain groups are not largely excluded from institutions of higher education, but I cannot help but conclude that it would have fewer supporters if children were afforded an equal educational opportunity from the start.

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I'm not sure I get what all this moderation is for. Texas social welfare policy is to caring about the people who live where you govern what up is to down. Your next draft should be more the late Molly Ivins and less the late Sam Rayburn.