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Phil Tegeler (interviewing for PRRAC): We’re speaking today with Erika Wilson who is a law professor at the UNC School of Law. Erika’s article “Monopolizing Whiteness” will be published soon in the Harvard Law Review. In the article, Professor Wilson addresses the limitations of federal constitutional law in addressing school segregation, and suggests a new framework for analyzing the school segregation issue, based on antitrust law. We asked her to join us today to answer a few questions about this really innovative piece of work. Welcome Erika!
Erika: Thank you for having me.
Phil: There’s been a lot of attention paid lately to the contribution of white parents to school segregation and inequitable school resources—for example, the “Nice White Parents” podcast that the New York Times released. Your work seems to shift the focus from the personal choices made by white parents to the legal structures that facilitate those choices. Can you explain what you think those structures are? And why are you using an antitrust law frame as a way to analyze those structures?
Erika: Well I’ll start off by saying that I think it’s good that the conversation has shifted to examining both the personal choices that white parents are making and, as I do, the structures that facilitate those choices. I think in a lot of ways, maintaining segregated schools is a choice. And not only do we continue to make that choice, but it’s a matter of law to structure our distribution of public schools in ways that facilitate choices that exacerbate segregation. So the primary legal structure I look to is school district boundary lines. The reason I look into school district boundary lines is, as you know, a lot of the segregation that is occurring now is between rather than within district boundaries. I thought it was really important to examine what school district boundary lines are doing to reinforce segregation. And so in the article, I particularly focus on places where school districts are drawn so that they’re coterminous with municipalities rather than a large territorial base like a county or a region. And so the reason I’m specifically interested in that legal structure is because of the realities of residential segregation when you draw school district boundary lines around municipalities rather than regions or counties. It’s more likely that the segregation that exists in a municipality will be extrapolated into the school district—and so I use my own example of where I live: I live in Durham, North Carolina, and where I work is down the road in Chapel Hill, North Carolina. But Durham is about 50 percent white and maybe 50 percent black and Latinx, whereas Chapel Hill is 72 percent white. Both cities have their own school districts, and so you can imagine that the districts reflect those demographics. Not only do the districts encapsulate the residential segregation that exists, but another really important point that I try to make in the article is that the boundary lines serve a recruitment function. You talked earlier about the “Nice White Parents” podcast and the idea that white parents are making choices that exacerbate segregation—well the school district boundary lines enable them to locate themselves in places where they know that there are more children who are likely to come from the same backgrounds in terms of race and socio-economic status, and with whom they would feel comfortable having their children attend school. Put simply, there are more likely to be similar numbers of middle-class and affluent non-white children in these districts in large part due to social impediments—discrimination in housing and racial wealth gaps that limit who can actually locate themselves like a place like Chapel Hill. The boundary lines facilitate a recruiting function where the same kinds of parents, usually white, more affluent with greater social and political capital can locate themselves in these particular districts. And as we know San Antonio vs. Rodriguez tells us that is constitutional for schools to rely on local property tax and financing schemes to fund schools even though we know that whiter, wealthier and more affluent municipalities are able to tax at lower rate and raise more money because they have a more ample tax base to draw from—and so there is the combination of the recruitment facilitation of school district boundary lines and the legal autonomy given to them in terms of them being able to raise money only for the students within their districts. And then, as we know from Milliken vs. Bradley, the idea that district school boundary lines are unlikely to be abrogated to desegregate schools. All of these things, I argue, facilitate the kinds of segregation we see today. I think one of the new arguments that I make in the piece that I’m probably most excited about is discussing the ways in which the idea of “whiteness” itself has a gravitating force that will allow school districts that are characterized as predominately white have an advantage for not only greater funding as I talked about, but to draw resources like teachers. There’s good social science research that shows that high quality teachers, teachers with the highest levels of certification, etc, are more likely to gravitate to districts that are whiter and more affluent and that even raising salaries does not negate that reality. So it essentially becomes a feedback loop where you have these districts not only to be able to raise more money but they are drawing in more teachers, and drawing in a population with greater social and actual capital. And so all of those things come together to create higher quality schools for those particular districts, districts which often have a substantial majority white enrollment. The last thing I’ll say about this question is that you know we focus a lot on the deprivation that is faced by students of color, but a flip-side of the monopolization is what happens to white students when they are able to position themselves in these districts, where they are drawing upon all these resources and where the boundary line cannot be abrogated. That monopolization harm was one that I think needed to be articulated clearly.
The reason why I specifically chose to try to frame the problem in an antitrust lens is because not only is equal protection doctrine not well suited to recognize monopolization as a harm, but in many ways it also facilitates the monopolization through cases like San Antonio vs. Rodriguez and Milliken vs. Bradley. These cases give these boundary lines so much authority and makes it hard to abrogate them. Anti-trust law is the one area where we already have frameworks set up for dealing with the problem of monopolization. And so I wanted to use the existing frames in antitrust law in order to highlight how this is relevant—how some of the solutions in anti-trust law might stretched or extrapolated in the school context.
Phil: Very interesting—and how exactly, how does that antitrust analysis or analogy, how does it go? You talk about social closure and essential infrastructure, what is the actual antitrust argument here?
Erika: So the antitrust argument…I have to be careful here because when people hear “antitrust,” their eyes glaze over, but oddly when I was in law-school, antitrust law was one of my favorite classes, and so that that’s one reason why I connected the dots between school segregation and antitrust law. The way the analysis works is that in antitrust law, the Sherman Act is there to protect the competitive processes that spur an efficient good economy. The goal of the Sherman Act is not to protect individual competitors, but to protect the competitive process. And in terms of white students in these predominately white school districts, there is not an equivalent public law doctrine that specifically aimed at protecting a “process.” In this context I’m thinking about the process of how we district public school access. Instead it’s very much tied up with individual parent decisions about where they live. By tying public school distribution to individual parental choice in where their family will live, we forego any careful systemic analysis of how those individual choices about residential location are both limited and shaped by systemic racism. We then claim that modern school segregation is an individual parent choice issue for which courts have no authority to fix—at least through the equal protection doctrine. But the reality is that those individual parent decisions in the aggregate have systemic effects, or systemic harms that must be addressed. And so just as antitrust law is used to protect the competitive processes that spur a good and efficient economy, we need an analog that will protect or mitigate the monopolization harms that occur when white students are situated in these predominantly white districts. And this harm, I argue, is a harm to democracy as a whole. Education is situated as the great equalizer and in America, the one place where it doesn’t matter how much money you have, at least in theory, but at least you can get a good education and become whatever you want to be. But that’s not happening anymore, and I suggest that there are significant harms to our democracy that occur when you situate quality education with a narrow subset of people. The second part of the analogy suggests that is important for us to understand why white student segregation occurs and that’s where “social closure” comes in. And so as I mentioned earlier, school segregation today is often framed as the product of individual parent choices about where they want to live. White parent choices in particular are not analyzed in the aggregate and as the Nice White Parents podcasts aptly illustrates, segregation is couched as an unfortunate as a process that occurs passively and inadvertently as a result of individual parental choices rather than actively and intentionally as a result of group based behavior and systems that enable that group based behavior. I wanted to articulate a framework on could help us to see why white students clustered together like this, why white student segregation occurs, in a more systemic group-based way. And so social closure is a process whereby a group, not individuals, monopolizes advantage by closing off opportunities to others—and so social closure is likely to occur when there is any type of competition for scarce resources—and so I situate high quality schools as a scarce resource that might incentivize this kind of group behavior to cut off others, in this case the others being students of color, and argue that the end result of social closure is the monopolization that I talked about earlier. And so I suggest that from an antitrust perspective the antidote is conceptualizing high quality schools as a form of essential infrastructure. I talked earlier about the democracy harms and the importance of public education to our democracy. If we situate high quality schools as a form of essential infrastructure, there is a doctrine in antitrust law that deals with essential infrastructure, called the Essential Facilities Doctrine, that suggests that when a competitor has a piece of infrastructure that is necessary for others competitors to use in order for them engage in the competitive process, the competitor has to open up access to that piece of infrastructure. So the analog here is with high quality schools that we have to find ways to open up access to that particular piece of infrastructure, in order to mitigate the harms of white student segregation and the harms to our democracy.
Phil: So this approach identifies the harm as the harm to democracy, versus the traditional way of thinking of harm in terms of the harms to low-income children of color assigned to poor, racially isolated school districts, or even to some extent the harms for isolated white students. This theory doesn’t really look at those kinds of harms, it looks to democracy as a whole. That’s a very different way looking at this issue, and I can see the value of that.
Erika: That’s exactly right, I think the article does acknowledge the harm both to low-income students, to the districts that they are situated in, and to the white students as well as you noted. But the greater contribution that I think the article makes is to try and take this away from an individual analysis and look at the harms to us collectively. One of the things I point out in the article is that there are real costs to not adequately educating all our citizens equally and that we’re ignoring those costs and kicking the can down the road so to speak on those costs. But they can and will come due, so it’s important that we frame the problem in a more collective sense.
Phil: Okay, but it isn’t actually legally possible right now to apply this antitrust law approach to public entities like school districts and state governments, right? So does this antitrust approach have practical applications, would be my question.
Erika: Yes, that’s the question I get the most! So where’s the “there” there? What do we do with this? I do think it has some practical applications both on the legislative front and in terms of terms of thinking how we fashion litigation strategies and how we might interpret state and federal equal protection clauses. So, on the legislative front, I will say one of the points I make in the paper is that states have plenary authority for how they draw district boundary lines. So one of the very practical uses of this framework is to help potential state legislatures to see the harms in the way they are drawing district boundary lines, the laws around things like school district consolidation for example, or school district secession, the two things that have been really popular of late. So this framework gives a lens through which state legislatures can draw from to understand the full impact of their boundary line decisions. One of the things that I also think you can do is to push for state legislatures to do this kind of analysis and include essentially what would be racial impact studies in any changes or refusal to make changes to boundary lines to understanding fully the harms. The other place where I think that litigators in particular might be more creative is thinking about how we might interpret our state constitutional right to education clauses. Most of the litigation around those clauses, when it comes to adequacy for example, focus on whether there are enough resources to provide an adequate education. But what if we reframe the way we thought about what adequacy meant and what it looks like. I think other scholars have started down this road as well, I’m thinking about Derek Black and his piece on middle income peers as a resource. The hope is that this work can contribute to that line reasoning in terms of pushing the envelope on how we define some of these terms. I think the same can be true in terms of how we think about even the federal equal protection claims or clauses. There was that great sixth circuit opinion in Gary B, that students do have rights to literacy under the federal constitution. I think this analysis can also be helpful in pushing the envelope on that front as well.
Phil: What about traditional civil rights law? You know, in theory, we still have the ability to seek a remedy for discriminatory impact in Title VI of the Civil Rights Act of 1964, in an administrative complaint process. And as you know, the House recently passed the “Equity and Inclusion Enforcement Act”, and we don’t know yet what is going to happen in Congress next year, but some day they are going to overrule the Sandoval case, and you’ll be able to go to court again with a Title VI disparate impact claim. Would your theory be transferrable to a kind of discriminatory impact traditional civil rights analysis?
Erika: I think it could be, and I think one of the other contributions that the article makes is to help us suss out and understand how to see what is causing these disparate impacts. I think one of the problems with modern iterations of school segregation law, as far as district boundary lines are concerned, is that there are so many overlapping factors that ultimately contribute to the disparate impact. I think if we can, for example, focus specifically on the ways in which boundary lines contribute to disparate impact that could give us a stronger footing in showing a particular source for that disparate impact and thinking about how the impact might be different if we made different choices in terms in the way we situate boundary lines. When I think down the road, another one of the another places this framework can be useful in traditional civil rights law is in the housing context. Where you draw boundary lines is definitely intertwined with patterns of housing segregation. I think there could be some creative advocacy around that point, in terms of showing, because of the feedback loop of schools and housing segregation, showing a disparate impact in the housing context in terms of in the way that district boundary lines are drawn.
Phil: Traditionally we have in fair housing law the “perpetuation of segregation” basis for disparate impact liability under the Fair Housing Act—but of course that was taken out of the HUD disparate impact rule recently by the Trump administration, I guess we’ll take care of that later.
Erika: Yeah, knock on wood!
Phil: Ok well finally, and more fundamentally, I know your article leans heavily on recent research on the benefits of school integration, especially these democracy benefits. But how do you respond to people who still argue that, given the difficulty of achieving real desegregation, students and communities might be better off if we focus on improving conditions in districts that serve primarily low-income children of color. How do you respond to that argument?
Erika: There are two ways to respond to that. The first is that the kind of analysis I present gives us an opportunity to really examine the lived experiences of students of colors. I think there is an aspirational idea if we spend more money then we don’t need integration. But I think, what we can see about the way structures act, particularly district boundary lines, it’s just not possible or true in terms of some of the intangible things I’m talking about like the recruiting function that boundary lines play. In terms of the intangible aspects of education, more money doesn’t get us there in terms of what draws the highest quality teachers to certain places or a more diverse set if peers which we know there is value in having for purposes of giving students the highest quality education. More money doesn’t get us there. In terms of the overall efficacy of trying to integrate schools, I’m sure some people will take issue with this conclusion, but given the realities of the way whiteness has operated and continues to operate in the United States of America, it’s not systemically possible to produce high quality education without integration. You can of course have pockets of it, but I’m talking about this systematically. It just won’t happen.
The last thing I want to say is that I’ve gotten a lot of feedback about using a market-based analogy in order to frame this particular problem. One of the things I want to point out is that the way I have done this does not beg for a neoliberal intervention, in fact I think it does the opposite. It uses the market-based analogy for more government intervention to highlight the ways in which the lack of government intervention creates a substantial market failure that harms us all. So I think that’s one important point I wanted to make before we close.
Phil: Thank you very much, this has been truly enlightening
Erika: Thank you for having me.
(Editor’s Note: To read a pre-publication version of Professor Wilson’s article on SSRN, Google “Monopolizing Whiteness.”
