Kamina A. Pinder**

Evan R. Hanson***


The modern school finance litigation movement in the United States is largely based on the presumption that school funding is correlative to the academic success of poor and minority children. Although the start of this movement is generally recognized as beginning in 19711, its more notable precursors are the southern school equalization programs of the 1940s and 50s. This article explores the impact of a historic attempt to preserve de jure segregation2 through an equalized school funding program to black and white schools; it then compares that program and its effects to current levels of funding and achievement in the South’s mostly de facto segregated schools.3

Part I provides a brief overview of the American South’s early system of public education up until the mid-twentieth century, while Part II explores the political factors—with a focus on its dual priorities of preserving segregation and improving education for rural white children—that led to the passage of the southern school equalization programs. This section focuses on Georgia’s 1949 Minimum Foundation Program for Education (“MFPE”), which was the most extensive of the southern equalization programs. It also briefly describes similar equalization programs in Mississippi and South Carolina.

Finally, Part III demonstrates, through an update of the southern public school system, that the educational challenges black and poor children faced during the de jure period of segregation still exist (albeit to a lesser degree) throughout the nation’s de facto segregated public school system. While it is beyond the scope of this article to propose solutions to low academic achievement, it is the authors’ hope that this brief discussion of the full circle the United States has come in using funding to avoid desegregation efforts serve as a reminder that while funding and desegregation are critical elements of a complex formula for academic success, alone neither is a panacea for closing the racial and economic achievement gap in education.

I. Before School Equalization

I.1 Early Public Education in the South

Public education in the south has its roots in ideas that took shape in the colonial period and was heavily influenced by the English educational system.4 Following independence from England, some southern leaders began to see public education as a necessity in a new democratic nation.5 In contrast to New England whose early settlers had been persecuted in England, the settlers of the southern states often maintained closer ties to the mother country.6 In fact, just as the development of the plantation system in the south reflected the land gentry of England, the southern states’ affiliation for English culture resulted in the development of a nearly identical educational structure.7

Throughout the South a two-tier educational system prevailed. Academics were to educate white children from wealthy families, and the state supported poor schools for all other white children.8 Both the concepts of Academies for the children of well-to-do, and some sort of public support for poor education were English concepts borrowed by the southern states.9 North Carolina and Georgia mandated public supported education in their first post-independence constitutions10, while other southern states did not include education in their constitutional provisions until much later.11 Notably, before the 1870’s there was often resistance from wealthier whites to fund public education through tax dollars, and there was also a shared fear among whites that funding public schools would lead to mixed-race schools.12

In some states the disbursement of school funds was often subject to the whims of the legislature.13 Consequently, in 1810 Virginia established a permanent public-school fund, which freed school funding from annual appropriations battles.14 Soon all the southern states, save South Carolina, followed suit by adopting permanent public school funds.15 Virginia also took the lead in establishing the “district free-school system”, in which communities were divided into school districts that could raise money to provide for the education of all white children.16 This system of common schools would come to dominate the antebellum south until the Civil War.17

The growing support of public education in the South did not extend to everyone. At the turn of the 19th century, the antebellum South did not provide for the education of blacks; in fact, the laws of the time explicitly prohibited teaching slaves or free persons of color to read.18 After the Civil War the South was uniform in establishing separate schools for blacks and whites19, and many state constitutions in the south included public education for all children.20 As late as 1889, funding for black and white schools was largely equal, but post-reconstruction the southern states stripped blacks of those rights and civil liberties21, and when taxes became a strain, public officials began to divert education funds to primarily fund white schools.22 The rationale for the disparity was that blacks did not need education of a quality comparable to that of whites.

The 1896 Supreme Court case of Plessy v. Ferguson23 legitimized the southern mantra of “separate but equal”, but the South’s racially-divided public school system was anything but equal. In fact, the only education-related case the Supreme Court heard between Plessy and Brown v. Board of Education24 (which overturned Plessy fifty-eight years later) was a Georgia case that illustrated the separate but equal fallacy.25 In that case, Cummings v. Richmond County Board of Education26, the Richmond County Board of Education closed the county’s black high school, yet continued to fund the operation of the county’s white high school.27 The Court rejected the plaintiff’s claim that this use of tax dollars violated the Equal Protection Clause of the U.S. Constitution.28 Writing for the majority of the Court, Justice Harlan opined that despite the inequalities of the racially segregated school system, state taxation was a state matter in which the federal government should not interfere unless there was a blatant violation of the Equal Protection Clause and hostility to “the colored population.”29

After Cummings legitimated separate and unequal education funding, racial disparities in education remained pronounced. In 1870, only 10% of black students in the South attended any kind of school.30 In 1900, in the sixteen former slave states, there were 93 blacks students for every black teacher compared to 57 white children for every white teacher.31 Yet despite the disparities, black literacy rates rose. In 1860, southern blacks had a 95% illiteracy rate, by 1880 that rate dropped to 70% and would continue to fall to 30% in 1910.32

In the early 1900s, 90% of Blacks lived in the South33, yet throughout the first third of the twentieth century, racial inequities in school resource allocation was the standard; white school boards disproportionately allocated state funds (which were calculated based on the total number of school-aged children) to white schools.34 Significantly, in 1900, large numbers of black children were engaged in gainful work, 49.3% of black boys aged ten to fifteen, and 30.6% of black girls were engaged in gainful work.35 This compares to 22.5% and 7% of white boys and girls respectively.36

The length of school terms also reflected racial disparities.37 The average southern white school had a school year of 128 days in 1909-1910, and by 1928-29 the school year had increased to 164 days.38 Black school terms were notably shorter, with only 101 days in 1909-10 and 144 days in 1928-29.39 During the 1914-15 school year, the southern states spent in aggregate $72,051,460 on public education, but only $40,073,312, or 11.7%, was spent on black children.40 The average southern black child was apportioned $4.01 for his education in 1915, while the average southern white student received the benefit of $10.82 of education spending.41

In 1915, most major southern cities had no black public high schools, yet during this same period, southern politicians worked vigorously to increase the number of public high schools for white students.42 One example of the stark racial disparity of educational resources in the early 1900s was the relatively cosmopolitan city of Atlanta, Georgia. In Atlanta, there were thirty-eight grammar schools, a boys’ high school, a high school and commercial school for girls, and five night schools for its 17,000 white children. Yet, for the slightly more than half of 10,000 black school-aged population actually enrolled in school, there were only eleven grammar schools.43 The per capita expenditure for black schools was $1.71 compared to $15 for white schools.”44

Because education was primarily funded at the local level (public high schools were funded exclusively at the local level), urban schools were more likely to have a stronger system of education, as rural schools barely eked by.45 There was a marked disparity between the educational funding and achievement of prosperous districts versus their poorer mostly rural neighbors; moreover, the more prosperous communities increased their educational advantages as their wealth grew.46 School attendance and graduation rates of white and black schools in rural counties trailed the urban districts, and by the turn of the century the old Academy system had virtually disappeared, replaced in rural areas by a system of a large number of smaller schools.47 Funding in many rural schools was only sufficient to run the schools for three to five months, and qualified teachers in rural areas left for more populous and prosperous areas, leaving behind only those teachers poorly equipped, poorly paid, and often unqualified for the rural area teaching positions.48

I.2 Education in Rural Areas Becomes a Priority in the Progressive Era

Between 1890 and 1920, rural legislators increasingly recognized the disparities between the southern states’ urban and rural schools,49 and the Progressive Era educational campaigns of 1900 to 1915 resulted in greater appropriations of funds for the public education of white children in the South.50 Following the Progressive Era of the early twentieth century, the Foundations Movement of the 1930s and 40s, called for an equalization of educational opportunities among white children.51 As the Foundations Movement improved education for poor rural white schools, it actually heightened racial disparities because the local school boards appropriated the majority of education funds to white schools.52 The twentieth century brought changes in reforms such as school consolidation to white schools but black schools were often denied these benefits.53 Consequently, in the late 1930s and early 1940s, things were bad (but improving) for southern rural white students, but worse (and not improving) for black students.

The late 1940s brought about great pressure for social change in the country and a push for equality for black citizens. The Roosevelt Administration’s New Deal, which spurred a federal campaign to help the poor, increased the number of black professionals.54 Increased urbanization resulted in cities that were less racially restrictive with regard to voting and social separation. Moreover, blacks of the urban south had a rising middle class that benefitted from the segregated economy and used its economic power for social change.55 Blacks recognized more power through increased education (particularly in urban areas), and its corollary ability to engage in successful social protest.56 In fact, their faith in the power of education was so strong that between 1890 and 1930 the overall rate of black literacy in the South grew faster than that of whites.57

The rise of black political power was critical to this rapid social change. In the years after the Smith v. Allwright decision struck down the white primary,58 black voter registration rose exponentially in the South, with the fastest increase in voter registration occurring in Georgia from 20,000 in 1940 to 125,000 in 1947.59 Post WWII, blacks who had fought for their country and black community leaders were less willing to endure the humiliation of being treated as subhuman.60 Concurrently, a black political class with growing confidence moved to increase the quality of education.61

On the legal front, blacks began to challenge segregation in public schools. During the late 1920s, the NAACP planned to launch a series of lawsuits that sought to equalize school expenditures.62 Keenly aware of the NAACPs limited resources, NAACP strategist Nathan Margold wanted to limit the number of lawsuits by litigating the funding inequities “of a single school to within a state to invalidate the funding of that state’s entire educational system.”63 Fearing backlash, during the 1930s and 40s the NAACP limited the scope of its legal pursuits to those of discrimination in teachers’ salaries and admission to professional school.64

Ultimately, the rising social consciousness and increasing legal challenges to segregation in education imparted on southern whites a growing recognition that threats to the institutionalized system of segregated schools were inevitable. It was in this political environment that the southern school equalization programs came into being.


II. 1 Georgia’s Minimum Foundations Program for Education: The Political Impetus for Equalization

In 1945, Georgia adopted a new Constitution that drastically reshaped the state’s education policy65 by consolidating and reducing the number of school tax districts, increasing the minimum tax rate for schools and granting the authority to extend public schooling from eleven grades to twelve grades. The next year, the state embarked on a broad study to identify the problems of Georgia schools and make recommendations for their improvement.66 This study was a cooperative effort of more than 20,000 lay and professional people to assess the deficiencies of Georgia’s education system.67

The study led the legislature and chief proponent Governor Herman Talmadge to propose the Minimum Foundation Program for Education, a program designed to improve the quality of education for rural white children while maintaining the system of segregated education.68 Despite its affirmation of segregationist principles, staunch segregationists opposed any attempt to improve black education at public expense, going so far as to oppose the spending of any white tax dollars on black education.69 Former Georgia Speaker of the House and political powerhouse Roy Harris led the opposition, while Harris vigorously supported school equalization for poor rural whites, he preferred dismantling the entire Georgia system of public education to equalizing black and white schools.70 Talmadge responded by arguing that northern “agitators” were attempting to move black children into white schools, and that school equalization under the MFPE would perpetuate segregation under the banner of separate but equal.71 Initial attempts to finance the MFPE faltered when a referendum to finance the program was defeated by a three to one vote.72 However, the political climate of 1949 foreshadowed significant challenges to segregation, and as school segregation schemes began to fall to Equal Protection Clause challenges73, staunch segregationists—perhaps believing that maintaining separate facilities for blacks and whites was more important than ideological opposition to spending white tax dollars on black education—joined Governor Talmadge in pushing the MFPE through the legislature.74 At the 1950 Georgia Democratic Convention, Harris-led delegates voted to support fully funding the MFPE within the separate-but-equal doctrine.75

The following year, Governor Talmadge forced a 3% statewide sales tax through the legislature that raised over $200 million for education, and would be used to fully fund the MFPE’s equalization of education throughout the state.76 The MFPE forever changed the scope of the state’s involvement in education and was the first time that Georgia made a serious effort to fiscally support black schools at anywhere near the level of white schools, albeit with goal of preserving de jure segregation.77

II. 2 The Scope of Georgia’s MFPE

The MFPE (or “the Act”) was built around the concept of using universal minimum standards of funding as a tool for school equalization.78 Section 1 of the Act declared it was “the public policy of the State of Georgia that educational opportunities for all citizens of this state shall be equalized…”79 Although this language was similar to Georgia’s earlier equalization legislation in its stated goal, it was the broad scope and specificity with which MFPE attacked funding disparities that made the MFPE a revolutionary piece of legislation, particularly in the South. Along with the unprecedented magnitude of state educational expenditures, the MFPE set up a non-discriminatory means of allocating state education funds, even going so far as to require districts to guarantee that funds would be appropriated on a non-discriminatory basis.80

The MFPE established a nine-month school year81 and gave students in public schools access to free textbooks.82 The Act also mandated that teachers, principals, supervisors, and superintendents be certified by the state pursuant to the rules and regulations of the State Board of Education.83 It provided for calculating Teacher-Pupil Ratios based on population density; however these ratios were calculated separately for whites and blacks.84

Large sections of the MFPE were devoted to revenue and expenditures.85 The Act established the “Minimum Foundation Program Fund” to support the program.86 Section 6 established a minimum teacher salary schedule that did not differentiate among grades or subjects taught.87 The MFPE gave the State Board of Education the ability to calculate the funding needs of local systems with regards to pupil transportation.88 The Act also provided detailed calculations on how expenditures for schools should be calculated, how to determine a locality’s ability to pay for these programs, and how the state would fund the difference between a locality’s costs and its ability to pay for programs.89 The Act provided that should a local unit of administration fail to comply with one or more provisions of the Act, the State Board of Education could withhold payments from the Minimum Foundation Program Fund until districts were in full compliance.90 Most significantly, the MFPE set a budget that totaled $96 million for education in Georgia, $69 million of which would come from the state.91

II. 3. The Impact of the MFPE in Georgia

Between 1950 and 1958, the MFPE increased Georgia’s expenditures on public education from $53 million to $150 million, and by 1961, Georgia was expending more than 50% of its tax revenues on education.92 To facilitate the MFPE’s objective of equalizing blacks schools in order to preserve legal segregation, Governor Talmadge designated more than half the initial spending, $30 million, to black schools even though black students made up only one-third of the total enrollment in Georgia schools.93 The state began an effort to consolidate and expand black schools.94 When Georgia engaged in a $200 million school building program, more than half of those funds went toward construction and improvement of black schools.95 In the 1949-50 school year, there were 1,596 white schools and 2,310 black schools.96 Of the 1,300 one-teacher schools in Georgia, 1,254 were black.97 Within a decade, through school consolidation and building, the total number of schools had dropped to 1,930 (of which there were 341 white high schools and 177 black high schools)98; the number of one-teacher schools dropped to only fourteen.99 Moreover, the MFPE equalized teachers’ salaries and effectively ended the disparity between the pay of white and black educators. In the 1949-50 school year the average teacher earned only $1,997 per year.100 By 1960, schools for whites employed 23,602.5 teachers, black schools employed 10,123, and average teacher salaries, both black and white, rose to $3,802.101

II.4 School Equalization in Mississippi and South Carolina

While not as extensive as Georgia’s MFPE, other southern states implemented school equalization programs to avoid integration.102 This section focuses on two of the states, Mississippi and South Carolina, that implemented school equalization programs with that objective.103

Just as in Georgia, social movements of 1920s and 30s led Mississippi legislators to improve the quality of education of rural white students while ignoring the educational needs of black students.104 In Mississippi, only 5% of black students were enrolled in high school compared to 20% of white students in the year 1944-45.105 Expenditures were similarly disparate, with $45.79 spent per capita on white students yet only $10.10 per black student.106 Mississippi state leaders, perhaps understanding that legal challenges would potentially prohibit such unequal standards, sought to equalize spending in the late 1930s and 40s.107 However, the Mississippi plan suffered ad hoc implementation of the school equalization measures, with some communities making great strides as others maintained the status quo.108

Perhaps the greatest flaw of the Mississippi equalization scheme was its funding.109 Unlike Georgia’s equalization plan, the Mississippi plan did not provide for the equalization of white and black teacher salaries.110 Notably, the lack of parity between black and white teacher salaries led to the case of Bates v. Batte in which a black schoolteacher brought a suit from fixing and maintaining a teacher salary scale on the basis of race.111 While the case was dismissed for the plaintiff’s failure to exhaust administrative remedies, the case certainly foreshadowed additional challenges to the disparities in the state’s segregated system of public education.112

From its inception the program faced funding problems, and by 1953 Mississippi legislators balked at providing any funding for the program. When the Supreme Court handed down its decision in Brown v. Board of Education in 1954, Mississippi legislators considered the quest for equalization a moot point. In fact “as late as 1962 the average Mississippi school district, despite sixteen years of state-sponsored equalization measures, still spent nearly four dollars per capita in local instruction funds on white children for every dollar expended on black students.”113

South Carolina also implemented a school equalization program in an attempt to preserve de jure segregation.114 As in the rest of the South, pressures to abolish the Jim Crow education system grew in South Carolina after WWII.115 Of the southern states, South Carolina’s racial disparities in educational expenditures were the greatest; the state spent ten times the amount on white students as black students.116 The state justified these disparities under the rationale that since whites paid the majority of taxes, they were entitled to the lion’s share of the benefits of those taxes for white educational facilities.117 In the 1929-30 school year, black spending was $15.86 per capita but spending on white education had increased to $42.39.118 By 1940, campaigns to strengthen black education brought results, as 90% of blacks aged ten to fourteen were attending some school compared to 91% of whites,119 Yet by the 1944-45 school year 71% of South Carolina’s black schools were one- or two-teacher schools, while for that same school year only 46% of white schools had two or fewer teachers.120 Moreover, only 9% of black students were provided with transportation to public school.121

South Carolina’s equalization program began under the Governorship of former Supreme Court Justice James F. Byrnes and was spurred in part by the challenges raised by Briggs v. Elliot, the first of five cases to ultimately be consolidated into the Brown v. Board of Education lawsuit that challenged the separate but equal doctrine.122 The case originated in Summerton, a town in Clarendon County, South Carolina. The appropriation of public education funds in Clarendon County was illustrative of the racial disparities of the time. In 1947, 74% of Clarendon County was black, yet black schools only received one-third of the funding.123 As Briggs made its way to the Supreme Court (where it would ultimately become part of Brown v. Board of Education), Governor Byrnes moved forward with South Carolina’s equalization program. South Carolinians’ desire for segregation was so strong, however, that Governor Byrnes was able to garner enough support from South Carolina to pass the state’s first sales tax (3%) to raise money for the equalization efforts.124

The centerpiece of Byrnes’s plan for equalizing education in South Carolina was a massive school construction effort.125 South Carolina’s program uniquely focused on school facilities, and resulted in the construction of hundreds of schools.126 As in other southern states with equalization programs, many whites resisted the concept of white tax dollars going to support black schools.127 School equalization advocates also faced resistance from local school boards and officials.128 Local white officials and parents wanted to funnel the state funds into projects that exclusively benefited white students,129 and rather than spending them on black students funds often went unallocated.130 Furthermore, the equalization legislation in South Carolina was concentrated on equalizing buildings, and provided no state control over the amount of local money spent on schools, nor on the equalization of the curricula or transportation.131

Ultimately, South Carolina’s program failed in its goal of preserving de jure segregation; it did, however, provide South Carolina’s white leaders with political justification for resisting the Supreme Court’s order to desegregate.132 Once the Brown v. Board of Education decision overturned the premise of “separate but equal”, equalization advocates lost the legal basis for equalization programs, and by 1955 South Carolina ceased its concentrated efforts to improve black schools.133


III.1 The Continued Problems of Equitable Spending

The problems of inequalities in education funding did not die with de jure segregation. A national school finance reform litigation movement sought to build on the successes of the desegregation litigation134 to equalize educational opportunity.135 When the Supreme Court held in 1973 that education was not a fundamental right under the Equal Protection Clause of the Fourteenth Amendment136, school finance reform plaintiffs brought claims that the disparate spending on public education violated the education and equal protection clauses of state constitutions.137 While plaintiffs initially experienced success, by the late 70s and early 80s courts were less inclined to favor plaintiffs in these suits.138

Notwithstanding the shift away from successful plaintiff suits based on equitable educational expenditures, during the 1980s states began to adopt academic standards for what children should know and learn as part of education funding legislation. Currently, school finance litigation suits are brought not only on equity of expenditures, but are based on the premise that expenditures are insufficient to meet state constitutional guarantees of adequate education.139

III.2 De Facto Segregation and the Continued Achievement Gap

Although the 1954 Brown v. Board of Education decision overturned de jure segregation, its effects had little immediate effect on southern schools. Notably, the South began to address racial disparities in school expenditures twenty years before the Brown decision, while school desegregation in the South did not begin until a decade after the Brown decision.140 From 1955 until 1968, the U.S. Supreme Court (along with the other branches and levels of government) abandoned any efforts to desegregate schools.141 Georgia did not begin to integrate its public schools until the fall of 1960, and in 1963 desegregation “had yet to expand beyond a few large cities”.142 Even as late as 1967, 86% of public schools in the South were segregated, and by 1974, Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virgina were the most segregated states in the nation with 29.9% of black students enrolled in schools that were 89% or more black.143

Since the 1980s, America, and the South in particular, has steadily reversed its progress towards integration of public schools.144 Although there was a national rise in the integration of public schools between the years of 1954 and 1988, the trend began to reverse in the late 1980s and early 1990s. Desegregation in schools across the nation peaked in 1988, and in 2006, segregation patterns began to increase.145 The number of black students in the South who attended majority white schools between 1954-1988 went from almost 0 to 43.5%, but then dropped to 32.7% in the period between 1988 and 1998. 146 In 1990, the degree of segregation in the South was “high or extremely high,” and although that level declined slightly later in the 90’s (except in Arkansas and the District of Columbia) the levels of segregation in southern schools still remained in those high or extremely high ranges in 2000.147 Notably, it was a U.S. Supreme Court case that originated in Georgia that was one of the cases to strike a major blow at the effort to desegregate the nation’s public schools.148

In the 1992 Freeman v. Pitts decision149, the Court reviewed the Northern District of Georgia’s continued enforcement of a 1969 desegregation order that required the DeKalb County School System (“DCCS”) to desist in its segregation and inequitable results. DCCS filed a motion for declaratory judgment that would effectively result in the District Court’s withdrawal of its oversight and recognize the county as officially desegregated.150 DCCS relied on six categories: student assignments, transportation, physical facilities, extracurricular activities, faculty assignments and resource allocation—upon which the Supreme Court relied in Green v. County School Board of New Kent County to determine whether there existed a dual school system based on race.151 DCCS presented evidence to support that it met four (student assignments, transportation, physical facilities, and extracurricular activities) of those six categories despite the fact that in 1986, the year that the DCCS filed its motion, the DCCS was fourth of the country’s largest districts in the decline of white students and second in its proportional increase of black students.152 The Respondents argued that the Court should continue to oversee the desegregation process until DCCS had met the six categories and then for some years afterwards to ensure continued compliance.153 The Supreme Court unanimously held that the District Court was correct in limiting its supervision of the desegregation order to only those two categories that DCCS did not meet.154 The Court noted that in cases of partial compliance where the school district has achieved unitary status155 in some but not all areas, the court may return control of the successfully desegregated areas to school officials while retaining supervision over areas that remain segregated.156

In Freeman, the Court used the factors it examined in Green to provide a framework for lower courts to determine whether a district unlawfully segregated its schools.157 By evaluating the Green factors independently of each other, the court came to the conclusion that partial compliance would allow the system to achieve unitary status over some aspects, thereby enabling DCCS to concentrate its efforts on areas where the effects of de jure discrimination had not been eliminated.158 The Court noted that racial imbalance alone was insufficient to demonstrate that the district was in noncompliance with its duties under the desegregation decree.159 Indeed, Justice Kennedy said “where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts.”160 Accordingly, if segregation is de facto rather than de jure, even where it is a result of a state’s inaction rather than state action, the Court will not step in.161

The 2007 United States Supreme Court case Parents Involved in Community Schools v. Seattle School District No. 1162 is likely to impair desegregation efforts even further. In that case, the Supreme Court held that school districts are unable to consider race in attempts to integrate schools.163 The combined effects of Parents Involved and white flight may result in a national public education system reminiscent of an era that legitimized racial separateness, and its companion unequal school quality. While scholars debate the potential impact of the decision,164 policymakers must now consider race-neutral alternatives to achieving more equitable access to quality education. Segregated schools, whether by race, economics, or both, are realities that are unlikely to abate in the immediate future.

III,3 The Return to Separate and Unequal

Today, the South is 26.5% black and 21.5% Latino, with 40% percent of these students attending “intensely segregated schools.”165 Schools with higher percentages of black students are more likely to have higher teacher turnover, fewer teachers with advanced degrees, fewer experienced teachers, and generally lower-quality resources.166 It is not easy to separate race from economic status. “There is literature that suggests that minority schools are highly correlated with high-poverty schools and these schools are also associated with low parental involvement, lack of resources, less experienced and credentialed teachers, and higher teacher turnover—all of which combine to exacerbate education inequality for minority students.”167 The effects of resegregation and school funding are likely to have the greatest impact in the South. Currently, the South is the first and only region in the nation to have a majority of students of color in its public schools168, with a student population of color of 51%.169 The South is also the only region in the nation where low-income students are in the majority in public schools.170 Of the 50 states and the District of Columbia, southern states (with the exception of Florida) tend to be at the bottom academic achievement.171 “The students who now constitute the largest groups in the South’s public schools are the students who in the aggregate are scoring lowest on state-mandated tests and on the federal National Assessment of Educational Progress (NAEP), the only national performance examination for K-12 students.”172 Southern students of color and low-income students of all races, “score below average on virtually every state-required test in every subject.”173 The South has the lowest percentage of students scoring at proficient or above on NAEP’s 4th and 8th grade tests, and the lowest percentages of students graduating from high school on time.174 The South also funds its students at the lowest per-pupil expenditures.175 Accordingly, the country’s fewest educational resources are allocated in the region with the highest numbers of students of color and low-income students.176

Now that forced desegregation is becoming untenable as a legal strategy, states are again relying on funding to compensate for the racial inequities in public education. States may be forced to abandon desegregation efforts and to focus on increased resources in low-income school districts. However, funding alone is not the answer. A study on school attendance in 1900 by educational historian Robert Margo concluded that “equalizing school characteristics would have narrowed the racial gap but that family characteristics (such as parents’ literacy and household head’s occupational status) were quantitatively more important…”177 Given that minority and low-income students inevitably face inequitable educational access, one possible approach is to concentrate efforts on educational expenditures that include measurable inputs such as class-size reduction and teacher quality.178 There is an important federal interest in ensuring that districts and schools are accountable for educational expenditures, while respecting the importance of local control in education decision-making. Even in 1960, the Committee for Economic Development (180 top executives and educators) observed at the conclusion of a three-year study: “Where the decentralized system cannot provide good schools, federal aid to education is an urgent necessity.”179 The federal government should continue to enforce the requirement under No Child Left Behind180 that federal funds be connected to demonstrated success in closing the academic achievement gap, and that test performance continued to be disaggregated by race, ethnicity, gender, disability status, migrant status, English proficiency, and status as economically disadvantaged.181


The recent Parents Involved182 decision and upward trends of re-segregated schools make the prospect of desegregated public education as unlikely as it was in the 1950s when southern states undertook a massive funding effort to avoid integration. Given that reality, perhaps it is time to focus less on “separate” and more on “equal”. History has already demonstrated that neither desegregation nor appropriating expenditures without an effective strategy to raise achievement alone bring about great strides in overall educational performance. In order to facilitate greater results, states may need to rely on a combination of federal, state, and local funding and control that target input expenditures in lower income and lower performing schools.

* A portion of this article first appeared as: Kamina A. Pinder and Evan R. Hanson, De Jure, De Facto, and Déjà vu All Over Again: A Historical Perspective of Georgia’s Segregation-Era School Equalization Program, J. Marshall L.J.,vol. 3 no. 2, (2010).

** Kamina Aliya Pinder is an Associate Professor of Law at Atlanta’s John Marshall Law School and a former program attorney at the U.S. Department of Education. Thank you to my greatest supporters: Spencer, Joseph, and my parents Frank and Lover Henderson.

***Evan R. Hanson, JD Candidate, December 2010, Atlanta's John Marshall Law School. I would like to thank Professor Kamina Pinder, without whom this project would have never come to fruition; my wife, Nancy; and my daughters, Sarah and Catherine, for their support, and the staff of the Georgia Archives.
1 The school finance reform is recognized as having three waves, the first of which is based on claims of violation of the federal Constitution’s Equal Protection Clause; the second is based on inequitable expenditures as violative of state constitutions; and the third and current wave is based on claims that the schools and districts are funded insufficiently to meet a standard of adequacy. See Brown v. Bd. of Educ., 349 U.S. 294 (1955); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 56 (1973); Rose v. Council for Better Educ., 790 S.W.2d 186 (1989); see also J. F. Morse, A level playing field: school finance in the Northeast, University of New York Press, 2007.
2 De jure segregation is defined as segregation that is mandated or permitted by law. Black Law Dictionary, 6th ed. 1990, 1479-1480.
3 De facto segregation is segregation that occurs without state authority usually on the basis of socioeconomic factors. Ibid.
4 E. W. Knight, Public Education in the South, 21 (Ginn & Co. 1922)
5 Id. at 117.
6 Id. at 10-11.
7 Id. at 12.
8 Id. at129, 133, 135.
9 Id. at 6-8.
10 “That a school or schools shall be established by the legislature, for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices; and, all useful learning shall be duly encouraged and promoted in one or more universities.” N.C. Const, art. XLI (1776); “Schools shall be erected in each county and supported at the general expense of the State, as the legislature shall hereafter point out.” GA. Const, art. LIV. (1777)
11 Knight, supra note 4, at 118-119(Virginia added a provision in 1851, and all other southern states except Louisiana, included a provision upon their admission to the union).
12 H. A. Bullock, A history of negro education in the south, from 1619 to the present, Praeger Publishers, 1967, , 36-60
13 See D.Orr, A history of education in Georgia, Univ. of N.C. Press 1950, p. 77 (noting that some in the Georgia Legislature viewed the Poor School Fund as a necessary and troublesome evil); see also Knight, supra note , at 129 (noting that in South Carolina class differences and cultural differences between the state’s regions were often the source of conflict when it came to poor school funding).
14 Knight, supra note 4, at 167.
15 South Carolina did not establish its first permanent school fund until after the civil war. Id.
16 Id. at 200.
17 Id. at 266-267.
18 E. G. Dexter, A history of education in the United States, McMillian, 1916 , p. 454,
19 Id. at 456.
20 Orley Ashenfelter et. al., Evaluating the Role of Brown v. Board of Education in School Equalization, Desegregation, and the Income of African Amercians, 8 AM. L. & ECON. REV. 3 (2006).
21 Id.
22 Bullock, supra note 12 , at 86.
23 Plessy v. Ferguson, 163 U.S. 537 (1896) (affirming state-imposed racial segregation by holding that so long as the legal and political right of the races were equal, social inequalities did not violate the Equal Protection Clause under the 14th Amendment).
24 Brown v. Board of Education (I), 347 U.S. 483 (1954).
25 M.J. Klarman, From Jim Crow to civil rights: the supreme court and the struggle for radical equality,
Oxford Univ. Press, 2004, 45
26 Cumming v. Board of Educ. Of Richmond County, 175 U.S. 528, (1899).
27 Id. at 530-41.
28 Id. at 543-545.
29 Id. at 545.
30 Bullock, supra note 12, at 170.
31 J.D. Anderson, The Education of Blacks in the south, North Carolina Press 1988, p.111
32 Id. at 31.
33 Bullock, supra note 12, at 149(noting that “[o]ver 60 percent of these were living in Georgia, Mississippi, Alabama, the Carolinas, and Louisiana.”)
34 Ashfelter, supra note 20, at 3.
35 Id.
36 Id.
37 Bullock, supra note 12, at 176.
38 Id.
39 Id.
40 Id. at 179.
41 Id.
42 Anderson, supra note 31 at 193.
43 J. Dittme, Black Georgia in the progressive era, 1900-1920 145 (Univ. of Ill. Press 1977).
44 A. P. Blaustein and C.C. Ferguson jr. Desegregation and the law: the meaning and effect of the school segregation cases 103, Rutgers Univ. Press, 1957.
45 2008-09 Education policy primer, Education in Georgia The new Georgia Encyclopedia, available at: http://www.gpee.org/fileadmin/files/pdf/Education inGeorgia.pdf [hereinafter education policy primer].
46 Orr, supra note 13, at 250 (The great number of small school districts under this system allowed more prosperous districts, including cities and towns to separate themselves from their less fortunate neighbors).
47 Id.
48 Id.
49 This period is recognized as the “Progressive Era” and is characterized by a push for governmental reform and increased state services throughout the country. Dittmer supra note 43 at xi; see also ORR, supra note 13, at 210 (In the Georgia House of Representatives the charge for better rural education was led by George Carswell who has served several years on the County Board of Education of rural Wilkinson County.).
50 Klarman, supra note 25, at 45(describing local school boards as arbiters of how school funds were allocated).
51 Thomas V. O’Brien, Georgia’s Response to Brown v. Board of Education: The Rise and Fall of Massive Resistance, 1949-1961 3 (1992)(unpublished Ph.D. dissertation, Emory Univ.) (on file with Hugh F. MacMillan Law Library, Emory Univ)
52 Klarman, supra note 25, at 45(noting that local school boards were the arbiters of how school funds were allocated).
53 School consolidation involves the closing of small, one to five teacher schools, and their replacement with larger, modern, and centralized schools. See Ellwood Patterson Cubberly, Public education in the United States,
Riverside 1919, p.470
54 S. G. N. Tuck, Beyond Atlanta: the struggle for radical equality in Georgia 1940-1980 110 (Univ. of Ga. Press 2001).
55Id. at 103. (also noting that white violence (and more specifically lynchings) were more common in rural than urban areas).
56Id. (observing the astounding rate of progress blacks made in a short span of time, “[i]lliteracy rates for southern blacks aged ten and over fell from 76.2 percent in 1880 to 26 percent in 1920. In 1900 only about 1,000 blacks attended college in the United States, but by 1930 roughly 20,000 did.”).
57 Bullock, supra note 12 , at172-173.
58 Smith v. Allright, 321 U.S. 649 (1944)(holding that denying blacks the right to vote in primary elections was a violation of the Fifteenth Amendment of the U.S. Constitution).
59Klarman, supra note 25, at 236-53.
60Id. at 104.
61O’Brien, supra note 51 at 2 .
62 Ashenfelter, supra note 20, at 6.
63 Id.
64 Id. at 7.
65 Among the provisions of the 1945 Constitution were, a lay board of education, an 85 percent reduction in the number of school tax districts, a simplification of procedures for voting for school bonds, the professionalization of the office of county school superintendent, the authority to extend the public school system from 11 to 12 grades, and an increase in the maximum tax rate for schools from five to fifteen mills. Ga. const. of 1945 art. VIII; ORR, supra note 13, at 387.
66 The study, “A Survey of Public Education of Less Than College Grade in Georgia” and its recommendation was of critical importance to the passage of the MFPE. ORR supra note 13 at 387-88.
67 Peggy Steelmon, Growth and Development of the Georgia Education Association 184 (1966) (unpublished Ph.D. dissertation, University of Georgia)(on file with Horace W. Sturgis Library, Kennesaw State University)(noting that among the deficiencies cited by the study were: “1 School term of only seven months, 2 Salaries too low, 3 Insufficient numbers of teachers, 4 Inadequate funds for supplies and other operating costs, 5 Not enough aid for transportation, 6 No financial aid for school construction.”).
68 ORR, supra note 13, at 387-88 (of the southern public school equalization programs Georgia’s was the most extensive; Georgia spent nearly double South Carolina’s 75 million dollar building program, which was even larger than Mississippi’s program; David Robertson, Sly and able: a political biography of James F. Byrnes, 507-10 (W W Norton & Co Inc 1994); Charles C. Bolton Mississippi’s school equalization program, 1945-1954: ‘A last gasp to try to maintain a segregated education system’, J. of Southern History 66(4): at 797.
69 O’Brien supra note 51, at 4.
70Id. at 3. Paper Presented at the 1993 American Educational Research Association Annual Meeting April 12-16; see also A.B. Blaustein and C.C. Ferguson jr. Desegregation and the law: the meaning and effect of the school segregation cases 258, (Rutgers Univ. Press 1957)(noting that rather than desegregate Georgia policymakers proposed to close the public schools and lease their facilities to private owners committed to promoting continued segregation.)
71O’ Brien supra note 51, at 5.
72 Peggy Steelmon, supra note 67 at 184.
73 See e.g., Sipuel v. Board of Regents of Univ. of Okla., 332 U.S. 631 (1948) (requiring the plaintiff be admitted to the previously all white University of Oklahoma School of Law noting “[t]he State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.”); see also, Sweatt v. Painter 338 U.S. 865 (1949) (granting writ of certiorari to review the Texas Supreme Court’s decision that opening a law school for blacks should defeat Sweatt’s 14th Amendment challenge to whites only admissions policy at the University of Texas.)
74 Steelmon, supra note 67, at 192. The MFPE passed on February 18th, 1949, with one vote against it in the Senate and two dissenting votes in the House.
75 O’ Brien, supra note 51. Paper Presented at the 1993 American Educational Research Association Annual Meeting April 12-16 (The NAACP’s complaint in Aaron v. Cooper specifically attacked the issue of inequity in Georgia’s funding of black schools and came on the heels of Sweatt v. Painter, 339 U.S. 629 (1950) (desegregated Univ. of Texas Law School) and McLaurin v. Okla. State Regents, 339 U.S. 637 (1950) (desegregating the University of Oklahoma). Both cases were decided only months before the August 1950 Georgia State Democratic Convention.).
76 1951 Ga. Laws 360-381.
77 N. V. Bartley, The creation of modern Georgia, p. 206 (Univ. of Ga. Press (1990)(describing Talmadge’s political tactics as a combination of political arm twisting, the threat of educational integration, and the promise of future prosperity, brought about by better education, to garner support for the 3% sales tax).
78 1949 Ga. Laws 1406-22.
79 Id.
80 R.O. Johnson, Desegregation of Public Education in Georgia—One Year Afterward 24 J. Negro Education 228, 228-30 (also noting that this program did not address the fact that Georgia still made no provision for blacks in higher education).
81 The Act established that from and after July 1, 1949, the public schools of Georgia shall be operated for at least nine months during each school year and that each year should consist of twenty school days. 1949 Ga. Laws 1409
82 1949 Ga. Laws 1417-18.
83 The MFPE required that all teachers, principals, supervisors, or superintendents hold a certificate from the State Board of Education, certifying their qualifications for the position. However, the certification requirements did not extend to elected county school superintendents. 1949 Ga. Laws 1409.
84 1949 Ga. Laws 1410.
85 1949 Ga. Laws 1406-22.
86 1949 Ga. Laws 1408.
87 1949 Ga. Laws 1409-10.
88 1949 Ga. Laws 1411-12 (Notably, in calculating the density of pupils per square mile, the law required white students and blacks to be calculated separately).
89 1949 Ga. Laws 1412-13.
90 1949 Ga. Laws 1419.
91 1949 Ga. Laws 1422.
92 State of Ga., Joint Comm. on Educ. Report on Public Educ. Expenditures, 101st Gen. Assem. 5, 19, 21 (1962).
93 Tuck, supra note 54, at 77.
94 See A.S.Chiphart,Torches of light: Georgia teachers and the coming of the modern south, p.230 (Univ. of Ga. Press 2005). For example, Hall County’s Oliver’s School was transitioned from a general school with grades up to grade eight to an elementary-only school. The influx of state funds also allowed for the provision of buses to transport rural black children of Hall County to the improved schools of the county seat Gainesville.
95 Letter from T.A. Carmichael Dir. of Negro Educ. to Don Rawlins (copy on file with author).
96 While it may seem odd that there were more black schools than white schools given their populations this is a statistical aberration caused by the large number of 1 teacher black schools. Ga. dept. of education statistical summaries of Georgia schools, (1959-1960) [hereinafter statistical summaries].
97 Id.
98 Id.
99 Ga. Dept. of Education, miscellaneous info on ga. Public Schools, (Dec. 29, 1960). Four of the fourteen one teacher schools in 1960 were special schools, not regular one teacher schools.
100 statistical summaries, supra note 96.
101 The 23,603.5 teachers for white schools include part-time teachers who were counted as fractional full-time teachers. Id.
102 Knight, supra note 4, at 112.
103 Bolton, supra note 68 at 782.
104 Id. at 783.
105 F.O. Alexander, The education of negros in Mississippi, 375.
106 Id. at 378.
107 Bolton, supra note 68, at 786-787.
108 Id. at 806.
109 Bolton, supra note 68, at 802.
110 Id. at 802.
111 Bates v. Batte, 187 F2d 142 (5th Cir. 1951).
112 Id. (citing Georgia case Cook v. Davis, 178 F.2d 595 (5th Cir. 1949) in which the court also dismissed on the basis that the plaintiff had not exhausted administrative remedies).
113 Bolton, supra note 59, at 814.
114 Rebekah Dobrasko, Upholding “Separate but equal” South Carolina’s School Equalization Program, 1851-1955 1 MA Thesis University of South Carolina 2005. Cooper Library
115Id. at 3.
116 Bullock, supra note 12, at 180. South Carolina spent $10.70 on white students in 1914-15 and 1.09 on black students. By 1929-30 these figures had increased to $52.89 for whites and $5.20 for blacks.
117 J. Clyburn and J. Revels, Uncommon courage: the story of briggs V. Elliot, South Carolina’s unsung civil rights battle 17, (PCF Press 2004)
118 Bullock, supra note 12, 180.
119 J. D. Anderson, supra note 31, at 181-182.
120 F. A. Decosta, The education of negroes in South Carolina, 405-6.
121 Id. at 406.
122 Id. at 1 (Briggs v. Elliot, 342 U.S. 350 (1952) was the first of four cases that were eventually combined into Brown v. Board of Education; the plaintiffs in the Briggs case sought equal educational opportunities and eventually changed their position to seek the complete desegregation of South Carolina schools).
123 Clyburn, supra note 117, at 20.
124 Clyburn, supra note 117 at 35.
125 Dobrasko, supra note 114, at 12 (noting that improvement of facilities for black students was one of the hallmarks of the South Carolina plan).
126 Dobrasko, supra note 114, at 8.
127 Id. at 13.
128 Id. at 16.
129 Id. at 17.
130 Id. at 17.
131 Id. at 26.
132 Id. at 34.
133 Id. at 36.
134 See e.g., Brown v. Board of Educ. 347 U.S. 483 (1954); Cooper v. Aaron, 358 U.S. 1 (1958); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971);
135 See Michael Heise, Equal Educational Opportunity Hollow Victories and the Demise of School Finance Equity Theory: An Empirical Perspective and Alternative Explanation, 32 GA. L. REV. 543 at 556 (1998).
136 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1(1973)(holding that the negative impact the Texas school finance system had on poor children enrolled in the public school system did not violate the Equal Protection Clause of the Fourteen Amendment and that education is not a fundamental right warranting protection under the U.S. Constitution).
137 See generally, Robert M. Jensen, Advancing Education Through Education Clauses of State Constitutions, 1997 BYU EDUC. & L.J. 1.
138 See e.g., Michael Heise, State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy, 68 TEMP. L.REV. 1151,1157-62 (1995)(discussing the mixed record of the second wave of school finance reform and citing plaintiff failures in Shoftstall v. Hollins, 515 P.2d 590 (Ariz. 1973); Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo. 1982)(en banc); McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981); and Thompson v. Engelking, 537 P.2d 635 (Idaho 1975).
139 See generally, Michael Heise, State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy, 68 TEMPLE L.R. 1151.
140 Ashenfelter, supra note 20, at 1.
141 J. Harvie Wilkenson III, From Brown to Bakke: the supreme court and school integration: 1954-1978, 61 (Oxford University Press 1979)(noting that the period of non-decision ended with Charles C. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430 (1968))
142 Klarman, supra note 25, at 348, 360(this integration occurred in Atlanta and proceeded without incident).
143 Clyburn, supra note 117, at 47, 49.
144 See generally, Gary Orfield, Reviving the Goal of an Integrated Society: A 21st Century Challenge, Los Angeles, CA: The Civil Rights Project/Proyecto Derechos Civiles at UCLA (2009).
145 Gary Orfield, Reviving the Goal of an Integrated Society: A 21st Century Challenge, Los Angeles, CA: The Civil Rights Project/Proyecto Derechos Civiles at UCLA (2009) 13.
146 Gary Orfield, Schools More Separate: Consequences of a Decade of Resegregation” Boston, MA: The Civil Rights Project, Harvard University (2001).
147 Sean F. Reardon and John T. Yun, Integrating Neighborhoods, Segregating Schools: The Retreat from School Desegregation in the South, 1900-2000, 81 N.C. L. REV. 1563, 1573 (although this article focuses on black-white segregation it is interesting to note that “[w]hite/Hispanic segregation levels, in contrast were generally in the low to moderate range for all states except those with large Hispanic populations—Texas and Florida. White/Hispanic segregation increased substantially in Arkansas, the District of Columbia, Georgia, and Maryland; in each of these places the Hispanic population grew sharply.”)
148 Gary Orfield and David Thronson, Dismantling Desegregation: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 759 (noting that many consider Freeman v. Pitts, 112 S. Ct. 1430 (1992) and Board of Education v. Dowell, 498 U.S. 237 (1991) as the cases that signaled the end of “the era of mandatory school desegregation).
149 503 U.S. 467 (1992).
150 503 U.S. 467 at 467.
151 Id.; Green v. County School Board of New Kent County, 391 U.S. 430,435 (1968)(in determining whether there was a segregated system the court examined segregation in: composition of the student body, faculty, staff, transportation, extracurricular activities and facilities).
152 Richard Kluger, Simple justice: the history of Brown V. Board of education and black America’s struggle for equality, 770 (Alfred A. Knopf New York 2004).
153 Freeman v. Pitts, 503 U.S. at 477.
154 Id. at 468-70.
155 “The Court first used the term “unitary” in Green v. New Kent County School Board” to describe a system in which no one was excluded based on race or color.” Gary Orfield, David Thronson, Dismantling Desegration: Uncertain Gains, Unexpected Costs, 42 EMORY L.J. 759, 762-63 (1993) at 762-63.
156 503 U.S. 467; see also Gary Orfield, David Thronson, supra note 148at 759, 763(noting that Pitts “attempted to articulate a new standard for dissolving court decrees and allowing partial dismantling of desegregation plans.”)
157 Freeman v. Pitts, 503 U.S. 467 (1992).
158 Id. at 493.
159 Id.
160 Id.
161 Kluger, supra note 152, at 770.
162 Parents Involved Community Schools v. Seattle School District no. 1, 551 U.S. 701 (2007)(holding that considering race in assigning students to public high schools violated the Equal Protection Clause of the Fourteenth Amendment).
163 Id.
164 See e.g,. Jonathan Fischbach, Will Rhee, Robert Cacace, Race at the Pivot Point: The Future of Race-Based Policies to Remedy de Jure Segregation After Parents Involved in Community Schools, 43 HARV. C.R.-C.L. L. Rev. 491 (analyzing the potential impact of the Parents Involved decision on desegregation and constitutional law doctrine).
165 Gary Orfield, Reviving the Goal of an Integrated Society: A 21st Century Challenge, Los Angeles, CA: The Civil Rights Project/Proyecto Derechos Civiles at UCLA (2009) pg 11, 12, 23 (also noting that although during the civil rights movement the small towns and rural areas were the most resistant to integration, those areas are currently the least segregated school districts.
166 See generally, Catherine Freeman, Benjamin Scafidi & David Sjoquist, Radical segregation in Georgia public schools 1994-2001: trends, causes and impacts on teacher quality, FRP Report No. 78 (December 2002) (Georgia State University)
167 Ericka Frankenberg and Chungmei Lee, Race in American Public Schools: Rapidly Resegregating School Districts 5 (The Civil Rights Project Harvard University 2002) .
168 See generally, Southern Education Foundation, “A New Diverse Majority: Students of Color in the South’s Public Schools” http://www.sefatl.org/pdf/New%20Diverse%20Majority.pdf (2010)(describing the South as having the most diverse public schools in the country and noting the challenges that blacks and Latinos face in gaining equal access to quality education in the South).
169 Id. at 6.
170 See generally, S. educ. found.,A. new majority: low income students in the south’s public schools, (2007) available at http://www.sefatl.org/pdf/A%20New%20Majority%20Report-Final.pdf (2007)(The “South” as defined in this report includes the following states: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia).
171 Editorial projects in education research center, quality counts,(2008) available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/K-12_education/National%20Highlights%20Report.pdf (ranking the 50 states based on: chance for success; K-12 achievement; standards, assessments and accountability; transitions and alignment; the teaching profession; and school finance).
172 See generally, s. educ. found., a new diverse majority: students of color in the south’s public schools, (2010) available at http://www.sefatl.org/pdf/New%20Diverse%20Majority.pdf.
173 Id. at 15-16.
174 Id. at 16.
175 Id.
176 Id. (“This pattern of underfunding has a long history and is shared by states outside the region. But unlike most other states, Southern states are now underfunding the education of a majority of their students”).
177 Ashenfelter, supra note 20, at 8.
178 Preston C. Green, III et. al., Achieving Racial Equal Educational Opportunity Through School Finance Litigation, 4 stan. J. Civ. Rts. And civ. Liberties, 283, 313(2008) (citing Sweatt v. Painter Court as an example the of the Court looking to “educational inputs (e.g., faculty quality and library holdings) and educational outcomes (passage of the bar and success in the profession) to determine that Texas’ black law school was substantially inferior to the white law school”, also citing Hobson v. Hanson, 269 F. Supp. 401 (D.D.C. 1967) (in which the court applied the Sweatt analysis.)
179 Education: Federal Aid (Contd.), Time Magayzine, February 8, 1960 available at http://www.time.com/time/magazine/article/0,9171,828651,00.html.
180 20 U.S.C. §6301 et seq.
181 20 U.S.C. §6311(h)(1)(describing the disaggregation reporting requirements).
182 551 U.S. 701.

Copyright (c) 1970 Kamina Aliya Pinder, Evan R Hanson

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