From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

By Juliet Buesing Clark*

Note — Volume 107, Issue 5

Sept 21, 2021
107 Va. L. Rev. 1115
Download PDF
*J.D., University of Virginia School of Law, 2021; M.P.P., Frank Batten School of Leadership and Public Policy, 2021; M.Ed., University of Massachusetts, 2013. I am sincerely grateful to Professor A.E. Dick Howard for guiding my research for this Note, and to Professors Kimberly Robinson and Andy Block for providing me with important learning experiences that expanded my knowledge of education and policy in Virginia. I also want to express my gratitude to the members of the Virginia Law Review who assisted in the editing and preparation of the Note—particularly Matthew West and Matthew Kincaid.Show More

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity.

In the years after Brown, Virginia dramatically resisted efforts to integrate. Then the Commonwealth embraced a moderate stance on integration, as part of its 1971 constitutional revision, to end de jure segregation and provide a “quality” education for “all children.” Looking to new quality standards produced by a Board of educational experts, Virginia optimistically turned to the technocracy movement, hoping to take education out of politics. New aspirational language was meant to deepen the legislature’s commitment to public schools and repair Massive Resistance’s damage to public schools.

Looking back fifty years later, however, it is clear that this constitutional revision, while successfully meeting its goals around Massive Resistance, did not address underlying problems it is often assumed to have solved, such as inadequate funding or persistent de facto segregation. Other states’ journeys battling the same issues have looked different, and these differences highlight some of the strengths and weaknesses of Virginia’s approach.

This Note ultimately argues that the 1971 constitutional revision never intended to solve these problems, and thus, the work for educational advocates right now is not to come up with more clever litigation, but to convince Virginians to agree on a fairer school system—perhaps through a new constitutional revision. In the context of new public concern about racial justice following George Floyd’s death and the Coronavirus crisis, I argue that Virginia today may finally be ready to finish the work started in 1971.

Introduction

In the first years of Virginia’s existence, Thomas Jefferson proposed a radical idea: Widespread public education, for the purpose of preserving democracy.1 1.2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974).Show More His vision is today enshrined in the Commonwealth’s Bill of Rights, which declares “[t]hat free government rests, as does all progress, upon the broadest possible diffusion of knowledge,” and that the Commonwealth thus should give its people the opportunity to develop their talents through “an effective system of education throughout the Commonwealth.”2 2.Va. Const. art. I, § 15.Show More He proposed a public education system for all, funded by taxes—a revolutionary idea at the time.3 3.Howard, supra note 1, at 879–80.Show More

Virginia’s leaders did not adopt Jefferson’s plan for public education.4 4.Id. at 880.Show More In fact, it was not until after the Civil War, at the behest of a compromise with Congress for readmission to the Union5 5.Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 783 (2018).Show More (and, as at least one scholar has suggested, primarily a result of advocacy by ex-slaves6 6.James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988).Show More), that Virginia reluctantly began to build a universal public education system.

By the middle of the twentieth century, public education had been quietly adopted as a staple of Virginian life, but it was neither a priority nor a value statement­­—unequal, segregated, and never particularly well-funded.7 7.See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010).Show More Virginia’s most famous public education moment—its participation in “Massive Resistance” in the years following Brown v. Board of Education—instead showed the Commonwealth’s willingness to sacrifice its children’s education to hold onto the racist ideals of its past.8 8.See infra Part I.Show More Perhaps no state was party to more high-profile segregation litigation in those years than Virginia, and unfortunately on the wrong side of history.9 9.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam).Show More

But in 1971, Virginia’s leaders finally sought to change this relationship to public education by enacting major constitutional changes to the Commonwealth’s education article.10 10.See infra Part II.Show More This note analyzes the work the 1971 revision has done in Virginia’s public grade schools during the years since from both a legal and policy perspective. The note ultimately concludes that the results achieved—the primacy and complexity of the Standards of Quality in Virginia’s public schools; the new balance of power between the Board of Education, the General Assembly, and local school boards; and the eradication of de jure segregation while preserving options for de facto segregation—were close to what the 1971 revisers intended. The revision solidified a technocratic approach to educational inputs in the Commonwealth, and it ensured an increased centralization of funding structures and decision-making that would reject any future attempts at racial segregation through local school closures. Looking back on the era that saw Virginia’s “Massive Resistance” swept away and a newfound optimism about effective, non-partisan policymaking fall into place, I conclude that the revision of the education article was a success of its time.

However, today Virginia’s schools face persistent problems of equity. Though on average, Virginia’s public schools produce high quality results, that quality is not experienced equally by all students. In fact, Virginia’s poor students receive significantly less funding than their wealthier counterparts,11 11.Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB].Show More despite having significantly more need, and they perform considerably worse according to the National Assessment of Educational Progress (NAEP).12 12.See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program).Show More Nor is segregation gone. Though de jure segregation and public school defunding have been successfully eradicated, de facto segregation is now on the rise. The number of hyper-segregated, highly impoverished schools has nearly doubled in Virginia since 2003.13 13.Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q].Show More

While many scholars and advocates argue that such inequities comprise state constitutional violations best fixed by a court, I conclude that this is simply not so in Virginia. The 1971 revision of the Virginia Constitution was not meant to solve these problems.14 14.In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note.Show More In fact, Virginia’s voters have never had a state-wide discussion of educational equity and integration, nor have they been forced to make a commitment to such values.

As our nation has been rocked by protests against racial injustice and ravaged by a new pandemic that has wreaked havoc on communities of color, in particular, issues of race and inequity have been shoved to the forefront of public dialogue in a way few of us have before confronted. The time is ripe for Virginia to finally finish the work begun fifty years ago. A new constitutional amendment to Virginia’s education article could facilitate this conversation. In 1971, Virginia’s leaders wanted to make education a priority for the first time and decided to take the first step away from active segregation. Today, it is time to reshape our education article yet again, with a vision of equity and excellence that will finish the journey away from segregation and finally step toward a shared, fair shot at the future for our children.

 

  1. * J.D., University of Virginia School of Law, 2021; M.P.P., Frank Batten School of Leadership and Public Policy, 2021; M.Ed., University of Massachusetts, 2013. I am sincerely grateful to Professor A.E. Dick Howard for guiding my research for this Note, and to Professors Kimberly Robinson and Andy Block for providing me with important learning experiences that expanded my knowledge of education and policy in Virginia. I also want to express my gratitude to the members of the Virginia Law Review who assisted in the editing and preparation of the Note—particularly Matthew West and Matthew Kincaid. ↑

  2. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974). ↑

  3. Va. Const. art. I, § 15. ↑

  4. Howard, supra note 1, at 879–80. ↑

  5. Id. at 880. ↑

  6. Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev

    .

    735, 783 (2018). ↑

  7. James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988). ↑

  8. See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010). ↑

  9. See infra Part I. ↑

  10. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam). ↑

  11. See infra Part II. ↑

  12. Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB]. ↑

  13. See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program). ↑

  14. Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q]. ↑

  15. In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note. ↑

  16. Howard, supra note 1, at 880–81; Salmon, supra note 7, at 144–45. ↑

  17. Howard, supra note 1, at 881 (citing Va. Const. of 1870, art. VIII, § 1). ↑

  18. Id. at 881–82 (citing Va. Const. of 1870, art. VIII, § 3). ↑

  19. Salmon, supra note 7, at 146. ↑

  20. Id. ↑

  21. Howard, supra note 1, at 882. ↑

  22. Va. Const. of 1902, art. IX, § 140. ↑

  23. Salmon, supra note 7, at 146–48. ↑

  24. Id. at 147­–48. ↑

  25. Id. ↑

  26. Va. Const. of 1902, art. II, § 21; Douglas Smith, “When Reason Collides with Prejudice”: Armistead L. Boothe and the Politics of Desegregation in Virginia, 1948–1963, 102 Va. Mag. Hist. & Biography 5, 6 (1994). ↑

  27. Va. Const. of 1902, art. II, § 19; Wythe W. Holt, Jr., The Virginia Constitutional Convention of 1901­­–1902: A Reform Movement Which Lacked Substance, 76 Va. Mag. Hist. & Biography 67, 96 (1968). ↑

  28. Smith, supra note 25, at 6. ↑

  29. Id. See generally J. Harvie Wilkinson, III, Harry Byrd and the Changing Face of Virginia Politics 1945–1966 (1968) (describing the political structures supporting Byrd and the changing role of Byrd’s organization in Virginia politics). ↑

  30. See, e.g., Richard F. Weingroff, Senator Harry Flood Byrd of Virginia—the Pay-As-You-Go Man, U.S. Dep’t of Transp., https://www.fhwa.dot.gov/infrastructure/byrd.cfm [https://perma.cc/Y9Z8-MVDY] (last visited June 4, 2021) (describing Byrd’s gubernatorial platform as a plan “to institute the best methods of efficiency and economy in State affairs”); Massive Resistance, Va. Museum Hist. & Culture, https://www.virginiahistory.org/‌collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/massive [https://perma.cc/CXA6-CRS3] (last visited Sept. 1, 2020) (describing Byrd’s leadership of Massive Resistance). ↑

  31. J. Rupert Picott, The Status of Educational Desegregation in Virginia, 25 J. Negro Educ

    .

    345, 346 (1956). ↑

  32. Id. at 346–47 (citing Gray Commission, Public Education Report of the Commission to the Governor of Virginia 9, 11 (1955)). ↑

  33. Charles H. Ford & Jeffrey L. Littlejohn, Reconstructing the Old Dominion: Lewis F. Powell, Stuart T. Saunders, and the Virginia Industrialization Group, 1958–65, 121 Va. Mag. Hist. & Biography 147–48 (2013). ↑

  34. Va. Museum Hist. & Culture, supra note 29. ↑

  35. Harrison v. Day, 106 S.E.2d 636, 646 (Va. 1959). ↑

  36. Id. at 647. ↑

  37. The Closing of Prince Edward County Schools, Va. Museum Hist. & Culture, https://www.virginiahistory.org/collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/closing-prince [https://perma.cc/FX34-5RQ5] (last visited Sept. 1, 2020). ↑

  38. Id. See generally Kristen Green, Something Must Be Done About Prince Edward County (2015) (recounting the struggle for integration in the county). ↑

  39. Va. Museum Hist. & Culture, supra note 36; see also Griffin v. Cty. Sch. Bd., 377 U.S. 218, 231 (1964) (explaining that this policy existed “for one reason, and one reason only: to ensure . . . that white and colored children in Prince Edward County would not, under any circumstances, go to the same school”). ↑

  40. Griffin, 377 U.S. at 230. ↑

  41. Id. at 232. Note that this litigation is actually an extension of the Brown v. Board litigation from Prince Edward County. Interestingly, the equality at issue was not equal treatment of races but equal treatment of students in different counties in Virginia. The Court, however, also saw the practice as a thinly veiled attempt at continuing the segregation outlawed by Brown. See id. at 220–21. ↑

  42. Cty. Sch. Bd. v. Griffin, 133 S.E.2d 565 (Va. 1963). ↑

  43. Id. at 565, 578. ↑

  44. Va. Const. of 1902, art. IX, § 129 (“The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.”). ↑

  45. Griffin, 133 S.E.2d at 573. ↑

  46. Id. at 577–78 (“It is for the General Assembly first to determine whether the failure of a locality to cooperate and assume its responsibility renders the system inefficient. It doubtless has the power to shape its appropriations for public schools under § 135 of the Constitution to correct an inefficiency in its established system, but that is in the area of legislative discretion, not in itself a constitutional requirement. The question of the efficiency of the system and whether it meets the constitutional requirement of § 129 becomes a matter of law only if it clearly appears that the system has broken down and adherence to it amounts to a disregard of constitutional requirements.”). ↑

  47. Hullihen W. Moore, In Aid of Public Education: An Analysis of the Education Article of the Virginia Constitution of 1971, 5 U. Rich. L. Rev. 263, 266–67 (1971). ↑

  48. See Ford & Littlejohn, supra note 32, at 149; James H. Hershman, Jr., Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority, in The Moderates’ Dilemma: Massive Resistance to School Desegregation in Virginia 104 (Matthew D. Lassiter & Andrew B. Lewis eds., 1998). ↑

  49. The Twenty-Fourth Amendment to the U.S. Constitution passed Congress in 1962 and was ratified in 1964, banning poll taxes for federal elections. Virginia was one of four states that tried to keep a state election poll tax in place, but was sharply admonished by the Supreme Court for doing so in Harper v. Virginia State Board of Elections. 383 U.S. 663, 666 (1966). ↑

  50. James R. Sweeney, Southern Strategies: The 1970 Election for the United States Senate in Virginia, 106 Va. Mag. Hist. & Biography 165, 166 (1998). ↑

  51. See, e.g., Markus Schmidt, The Voting Rights Act of 1965—How America Did Overcome, Rich. Times-Dispatch (Aug. 1, 2015), https://richmond.com/news/local/government-politics/the-voting-rights-act-of-1965—how-america-did-overcome/article_7d47ec7d-bf98-5014-8e25-5c72b2617a39.html [https://perma.cc/8XM5-MYFD]. ↑

  52. Baker v. Carr held that federal courts could review state redistricting choices, paving the way for Reynolds v. Sims, the case requiring state legislatures to apportion on a roughly equal population basis. Baker v. Carr, 369 U.S. 186, 197–98 (1962); Reynolds v. Sims, 377 U.S. 533, 575–77 (1964). See also, Sweeney, supra note 49, at 166 (“[T]he United States Supreme Court undermined the controlling influence of rural areas in the apportionment of state legislatures.”). ↑

  53. Sweeney, supra note 49, at 165–66. ↑

  54. M. Caldwell Butler, A Republican Looks at the 1968 Virginia General Assembly, 45 U. Va. News Letter 1 (Inst. Gov’t, Charlottesville, Va.), Sept. 15, 1968. ↑

  55. A.E. Dick Howard, Adopting a New Constitution: Lessons from Virginia, in 1 State Constitutions for the Twenty-first Century: The Politics of State Constitutional Reform 77 (G. Alan Tarr & Robert F. Williams eds., 2005). ↑

  56. Id. at 74. ↑

  57. Id. at 74–75. ↑

  58. Id. at 76–77. ↑

  59. Id. at 77. ↑

  60. Id. ↑

  61. Id. at 82. ↑

  62. Id. at 83. ↑

  63. Id. at 78, 80–83. ↑

  64. Id. at 85. ↑

  65. Compare Va. Const. of 1902, art. IX, §§ 130, 132, with Va. Const. art. VIII, §§ 4–5. ↑

  66. Compare Va. Const. of 1902, art. IX, § 139, with Va. Const. art. VIII, § 3. ↑

  67. Compare Va. Const. of 1902, art. IX, § 131, with Va. Const. art. VIII, § 6. ↑

  68. Compare Va. Const. of 1902, art. IX, §§ 134–135, with Va. Const. art. VIII, § 8. ↑

  69. Report of the School Division Criteria Study Commission to the Governor and the General Assembly of Virginia, S. Doc. No. 5, at 7 (1973). This focus on district size and efficiency was a reflection of the technocratic movement of the time. Emmy Lindstam, Support for Technocratic Decision-Making in the OECD Countries: Attitudes Toward Apolitical Politics 5–6 (May 2014) (B.A. thesis, University of Barcelona) (on file with University of Barcelona). ↑

  70. Compare Va. Const. of 1902, art. IX, §§ 133, 136, with Va. Const., art. VIII, § 7. While district consolidation was a controversial issue on the subject of integration in many ways, the provision ultimately at issue here was only technical—solving the problem of multiple school boards in one county. The originally proposed Section 5(a), unrelated, suggested that the Board have sole power to draw division lines, excluding the General Assembly from the consolidation process. Howard, supra note 1, at 920–21. As ultimately passed, the General Assembly sets limits on this power. Va. Const., art. VIII, § 5(a). ↑

  71. Va. Const. of 1902, art. IX, § 140. ↑

  72. Comm’n on Const. Revision, The Constitution of Virginia: Report 256–57 (1969). ↑

  73. Hershman, supra note 47, at 104. ↑

  74. Comm’n on Const. Revision, supra note 71, at 254. ↑

  75. Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). ↑

  76. Comm’n on Const. Revision, supra note 71, at 99. ↑

  77. Howard, supra note 1, at 896. ↑

  78. Va. Const. of 1902, art. IX, § 129. ↑

  79. Va. Const. art. VIII, § 1. ↑

  80. Id. Note that the Commission did not discuss this choice directly in their commentary. Comm’n on Const. Revision, supra note 71, at 254–56. ↑

  81. Va. Const. art. VIII, § 1. ↑

  82. Comm’n on Const. Revision, supra note 71, at 257–58. ↑

  83. 310 F. Supp. 572 (W.D. Va. 1969). ↑

  84. Howard, supra note 1, at 895–96. ↑

  85. Compare Va. Const. of 1902, art. IX, § 138, with Va. Const. art. VIII, § 3 (describing compulsory education standards). In 1971, the drafters included that the “appropriate age” of compulsory education was “to be determined by law.” Id. ↑

  86. Moore, supra note 46, at 278–79. ↑

  87. Id. at 280–81. ↑

  88. Va. Const. art. VIII, § 2. ↑

  89. Id. ↑

  90. Moore, supra note 46, at 276–77. ↑

  91. For a literature review of technocracy that highlights the widespread optimism in the 1960s and 70s that “technocracy appeared to be a feasible future form of government[,]” see Lindstam, supra note 68. ↑

  92. The standards are currently found in the Code of Virginia. See Va. Code Ann. §§ 22.1-253.13:1–22.1-253.13:9 (2020). ↑

  93. It is important to clarify that this Note speaks of retrospectively rejecting Massive Resistance as a different object than prospectively achieving integration. Modern readers may struggle to differentiate the two, seeing all forms of segregation as equally bad. However, to a 1971 reviser, spurning Massive Resistance was a very different political choice than embracing racial integration. ↑

  94. See Lindstam, supra note 68, at 5 and accompanying text. ↑

  95. Va. Const. art. VIII, § 2. ↑

  96. See, e.g., James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America 1–8 (2010). ↑

  97. Id. at 13. ↑

  98. Virginia Magazine highlighted the sudden (perhaps imagined) threat the public felt of “increasing budget deficits, higher local taxes, and the withdrawal of government spending streams that had lifted so many parts of the Old Dominion from structural underemployment[,]” including a concern that the federal government would withdraw its Naval Base and other investments from the state. Ford & Littlejohn, supra note 32, at 149–51. Business Week predicted a massive rise in local property taxes, and Dr. Loren A. Thompson called Massive Resistance an “Education Crisis” that was “the main reason that Virginia was falling behind other states in attracting new industries and businesses.” Id. at 154. In other words, negative press coverage about the state predicted economic harm to white elites, a prospect that moderates wanted to avoid. ↑

  99. Id. at 149, 152–54. ↑

  100. Hershman, supra note 47, at 104–05. ↑

  101. Va. Const. art. VIII, § 1. ↑

  102. Va. Const. art. VIII, § 2. ↑

  103. Howard, supra note 1, at 901. ↑

  104. Va. Const. art. VIII, §§ 2, 5(e); Howard, supra note 1, at 901–04. ↑

  105. Infra notes 110–14 and accompanying text. ↑

  106. 1972–73 Op. Va. Att’y Gen. 353. ↑

  107. 1975–76 Op. Va. Att’y Gen. 313. ↑

  108. 1980–81 Op. Va. Att’y Gen

    .

    79–85. ↑

  109. Id. ↑

  110. Acts of the Virginia legislature are granted a “presumption of constitutional validity.” Sch. Bd. v. Parham, 243 S.E.2d 468, 472 (Va. 1978). For the court to declare a statute unconstitutional requires a clear violation. A mere “shadow [of a doubt about constitutionality] is not enough.” Lipscomb v. Nuckols, 172 S.E. 886, 889 (Va. 1934). ↑

  111. Scott v. Commonwealth, 443 S.E.2d 138, 139 (Va. 1994). ↑

  112. Id. at 140. ↑

  113. Id. ↑

  114. Id. at 142. Note that Scott did leave open the possibility of an adequacy challenge; the Court indicated that students might have an individual right to a certain level of education. Id. (“[T]he Students do not contend that the manner of funding prevents their schools from meeting the standards of quality.”). ↑

  115. Va. Code Ann. § 22-19.1 (1973) (describing the issuance procedure). ↑

  116. See, e.g., 1972 Va. Acts 1032–36. ↑

  117. See 1984 Va. Acts 1572–76, 1655–59. ↑

  118. Joint Legislative Audit & Review Comm’n of the Va. Gen. Assembly (“JLARC”), Review of Elementary and Secondary School Funding 27 (2002), http://jlarc.virginia.gov/pdfs/reports/Rpt277.pdf [https://perma.cc/W8VG-AN4S]. ↑

  119. Va. Code Ann

    .

    § 22.1-18.01 (2020). ↑

  120. See Va. Bd. of Educ., October 2019 Meeting Update 3 (2019), https://www.vsba.org/images/uploads/October_2019_Meeting_Report.pdf [https://perma.cc/SM4R-JCQS]. ↑

  121. See Va. Att’y Gen., Opinion Letter (Jan. 4, 2019), https://www.oag.state.va.us/files/Opinions/2019/18-046-Opinion-to-Senator-Stanley-Issued.pdf [https://perma.cc/DPG8-JJXK]; 2002 Op. Va. Att’y Gen.

    54

    n

    .29

    . ↑

  122. Justin Mattingly, Schools Across Virginia, Richmond Region, Fare Better Under New Accreditation Standards, Rich. Times-Dispatch (Sept. 27, 2018), https://www.richmond.com/news/local/education/schools-across-virginia-richmond-region-fare-better-under-new-accreditation/article_ecaddfcd-9a08-534d-960f-9ab5266fc3cb.html [https://perma.cc/4WSB-R7X2] (demonstrating the Board’s effort to use data to evaluate schools more accurately); Va. Bd. of Educ., Comprehensive Plan

    : 2018–2023,

    at

    4–6

    (2017), https://www.doe.virginia.gov/boe/plan/comprehensive-plan.pdf [https://perma.cc/P9ZC-9ESH]; Va. Bd. of Educ., 2013 Annual Report on the Condition and Needs of Public Schools in Virginia app. A, at 36–37 (2013), https://www.doe.virginia.gov/boe/reports/annual_reports/2013_appendix_a_sol_history.pdf [https://perma.cc/7M78-HTXQ]. ↑

  123. See, e.g., Davis Burroughs, Virginia Board of Education Seeks Nearly $1 Billion in New K–12 Funding, Va. Dogwood (Oct. 17, 2019), https://vadogwood.com/2019/10/17/virginia-board-of-education-seeks-nearly-1-billion-in-new-k-12-funding/ [https://perma.cc/BJ4W-C22Y] (describing the Board’s 2019 political push for expanded at-risk funding in service of “equitable outcomes” for disadvantaged children). ↑

  124. Id. ↑

  125. Justin Mattingly, It Was a Landmark Year for Education Funding in Virginia—Until COVID-19, Rich. Times-Dispatch (Apr. 24, 2020), https://richmond.com/news/virginia/it-was-a-landmark-year-for-education-funding-in-virginia—until-covid-19/article_c50665a6-172d-5f56-a1b0-43240cfff68d.html [https://perma.cc/J4F9-5WH9]. ↑

  126. Professor Salmon suggests that the complexity of this formula was a direct response to Burruss v. Wilkerson and an attempt to avoid equal rights litigation over school funding. Salmon, supra note 7, at 151. ↑

  127. Id. at 152. ↑

  128. Id. at 152–53. ↑

  129. Id. at 153. ↑

  130. Va. Code Ann. § 22.1-199.1 (2020). ↑

  131. JLARC, supra note 117, at iv–vi; Salmon, supra note 7, at 155. ↑

  132. Schuyler VanValkenburg, Jeff Bourne & Mike Mullin, A Student Who Is Safe Is a Student Who Is Safe to Learn, Rich. Times-Dispatch

    (

    Mar. 31, 2019), https://www.richmond.com/opinion/columnists/vanvalkenburg-bourne-and-mullin-column-a-student-who-is-safe/article_db7679dc-4f32-50fc-901e-deeac5550033.html [https://perma.cc/6WUT-GVAS]. ↑

  133. Daniella Cheslow, In Shadow of Coronavirus, Virginia Lawmakers to Freeze New Spending in State Budget, WAMU 88.5 (Apr. 22, 2020), https://wamu.org/story/20/04/22/in-shadow-of-coronavirus-virginia-lawmakers-to-freeze-new-spending-in-state-budget/ [https://perma.cc/58FH-9UXM]. ↑

  134. Nat’l Educ. Ass’n, Rankings of the States 2018 and Estimates of School Statistics 2019, at 33 (2019), https://www.nea.org/sites/default/files/2020-06/2019%20Rankings%20and%20Estimates%20Report.pdf [https://perma.cc/3KFT-GFQ6]. ↑

  135. Editorial, Did the Virginia Supreme Court Show School Districts How to Sue Over Disparities?, Roanoke Times (Oct. 20, 2018), https://roanoke.com/opinion/editorials/‌editorial-did-the-virginia-supreme-court-show-school-districts-how-to-sue-over-disparities/article_f3e07697-879d-50d1-9ac9-573b741856c7.html [https://perma.cc/LF7H-HFMP]. ↑

  136. Baker et al., supra note 11, at

     

    11; Bruce Baker, Danielle Farrie, Theresa Luhm & David G. Sciarra, Is School Funding Fair? A National Report Card 5 (5th ed. 2016); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 16 (3d ed. 2014); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 14 (2d ed. 2012); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 32 (2010). ↑

  137. Comm’n on Constitutional Revision, supra note 71, at 254. ↑

  138. Va. Const. art. VIII, § 1. ↑

  139. Ryan, supra note 95, at 5. ↑

  140. Id. at 55–109. ↑

  141. Id. at 56; Green v. Cty. Sch. Bd., 391 U.S. 430, 433–35 (1968); U.S. Comm’n on Civil Rights, Southern School Desegregation, 1966–67, at 45–47 (1967), https://www.crmvet.org/docs/ccr_sch_desegregation_south_6707.pdf [https://perma.cc/89N8-RAPJ]. ↑

  142. Ryan, supra note 95, at 56; The Memphis 13 (Daniel Kiel 2012), https://thememphis13.com [https://perma.cc/B65A-VV7G]. ↑

  143. Green, 391 U.S. at 437–41. ↑

  144. Ryan, supra note 95, at 72. ↑

  145. Bradley v. Sch. Bd., 345 F.2d 310, 316 (4th Cir. 1965). ↑

  146. Ryan, supra note 95, at 73; Bradley v. Sch. Bd., 416 U.S. 696, 701 (1974) (“[O]n March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green . . . .”). ↑

  147. Ryan, supra note 95, at 74; Bradley v. Sch. Bd., 317 F. Supp. 555, 578–79 (E.D. Va. 1970). ↑

  148. Ryan, supra note 95, at 74–82. ↑

  149. Id. at 82–84; Bradley v. Sch. Bd., 338 F. Supp. 67, 105 (E.D. Va. 1972). ↑

  150. Bradley v. Sch. Bd., 462 F.2d 1058, 1066 (4th Cir. 1972) (“We think that the root causes of the concentration of [B]lacks in the inner cities of America are simply not known . . . .”). ↑

  151. Rich. Sch. Bd. v. Bd. of Educ., 412 U.S. 92, 93 (1973). ↑

  152. Ryan, supra note 95, at 78, 80. ↑

  153. Id. at 80. ↑

  154. 418 U.S. 717, 752–53 (1974). ↑

  155. Id. at 745. ↑

  156. Kimberly Jenkins Robinson, Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools, 88 N.C. L. Rev. 787, 817–19 (2010). ↑

  157. See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016) (“1. The school divisions as they exist on July 1, 1978, shall be and remain the school divisions of the Commonwealth until further action of the Board of Education taken in accordance with the provisions of this section except that when a town becomes an independent city, the town shall also become a school division. 2. No school division shall be divided or consolidated without the consent of the school board thereof and the governing body of the county or city . . . 3. No change shall be made in the composition of any school division if such change conflicts with any joint resolution . . . of the General Assembly . . . .”). Note that this statute strips the Board of its constitutional power to draw division lines in ways that best promote the standards of quality. See Angela Ciolfi, Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia, 89 Va. L. Rev. 773, 808–13 (2003). ↑

  158. See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016). ↑

  159. See Robinson, supra note 155, at 811–39 (arguing that the Court has validated resegregation in schools). ↑

  160. See, e.g., Genevieve Siegel-Hawley, Jennifer Ayscue, John Kuscera & Gary Orfield, Miles to Go: A Report on School Segregation in Virginia, 1989–2010, at v (2013)

    (

    describing increases in Virginia’s hyper-segregated schools since 1989). ↑

  161. 551 U.S. 701, 747–48 (2007). ↑

  162. Id. ↑

  163. Id. at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). ↑

  164. Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Pew Rsch. Ctr., Most Americans Say There Is Too Much Economic Inequality in the U.S., but Fewer than Half Call It a Top Priority 19–22 (2020), https://www.pewsocialtrends.org/2020/01/09/trends-in-income-and-wealth-inequality/ [https://perma.cc/BGG6-DPM8]. ↑

  165. Duncombe & Cassidy, supra note 13, at 1. ↑

  166. Id. This does not account for Black children who are relegated to lower-tracked classrooms or face other intra-school segregation. See Karolyn Tyson, Tracking, Segregation, and the Opportunity Gap: What We Know and Why It Matters, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance

    170, 180 (

    Prudence L. Carter & Kevin G. Welner eds

    ., 2013).

    ↑

  167. Audra D.S. Burch, James Monroe Enslaved Hundreds. Their Descendants Still Live Next Door., N.Y. Times (July 7, 2019), https://www.nytimes.com/2019/07/07/us/politics/monroe-slavery-highland.html [https://perma.cc/LZ6R-KYHL]. ↑

  168. Household Income in Virginia, Statistical Atlas, https://statisticalatlas.com/state/Virginia/Household-Income [https://perma.cc/VY6A-ABBS] (last visited June 1, 2020) (showing that Black families in Virginia are twice as likely as the general population to be represented in the lowest three income brackets). ↑

  169. Food Rsch. & Action Ctr., Poverty, Hunger, Health, and the Federal Nutrition Programs: A Profile of the Southern Region 13–14 (2020), https://frac.org/wp-content/uploads/FRAC-Poverty-Hunger-Health-and-the-Federal-Nutrition-Programs-2020.pdf [https://perma.cc/8W6U-7PKP]. ↑

  170. Kathryn Howell, RVA Eviction Lab, Eviction and Educational Instability in Richmond, Virginia 3 (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Eviction-and-Educational-Instability-in-Richmond.pdf [https://perma.cc/EU4J-Z7BP] (showing significantly higher eviction rates in school districts with large Black student populations). ↑

  171. Food Rsch. & Action Ctr., supra note 168, at 16–18. ↑

  172. Dep’t of State Police

    ,

    Crime in Virginia

    2019,

    at

     

    54 (2020), https://www.vsp.virginia.gov/downloads/Crime_in_Virginia/Crime_In_Virginia_2019.pdf [https://perma.cc/4TAJ-UHUA] (finding that 45% of violent crimes with known victims in Virginia in 2019 had Black victims, while Black Virginian’s only make up 20% of the Virginia population); Vera Inst., Incarceration Trends in Virginia 1 (2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-virginia.pdf [https://perma.cc/VWX9-LSGD]. ↑

  173. In 2019, Blacks—who make up only 20% of the Virginia population—made up 42% of all arrests. Dep’t of State Police, supra note 171, at

     

    70–71. Additionally, they represent over half of Virginia’s prison population. Vera Inst., supra note 171, at 1. ↑

  174. Prosperity Now Scorecard, State Outcome & Policy Report: Virginia 4 (2021), https://scorecard.prosperitynow.org/data-by-location#state/va [https://perma.cc/AE77-ZQRK] (last visited Sept. 20, 2020) (select “download state outcome & policy report,” then search “Virginia” in the state field, and select “download PDF”) (showing that while 72% of white families in Virginia own homes, fewer than half of Black families own homes); see also Ta-Nehisi Coates, The Case for Reparations, Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/76HH-BJ2J] (describing historic attempts to deprive Black families of property). ↑

  175. Va. Dep’t of Hous. and Cmty. Dev., Analysis of Impediments to Fair Housing Choice in the Commonwealth of Virginia

    36

    (2018), https://www.dhcd.virginia.gov/sites/default/files/Docx/consolidated-plan/analysis-of-the-impediments-to-fair-housing.pdf [https://perma.cc/XE39-CB8J]. ↑

  176. Benjamin F. Teresa, RVA Eviction Lab, The Geography of Eviction in Richmond: Beyond Poverty (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Geographies-of-Eviction.pdf [https://perma.cc/G5TF-K7QT]. ↑

  177. See Achievement Gaps Dashboard, supra note 12 (comparing Black eligible students in Virginia with white eligible students). ↑

  178. Id. ↑

  179. Virginia Early Childhood Foundation found, for example, that Black students who showed up to school kindergarten-ready fell behind significantly faster than their white or Asian peers. By third grade, the number of Black children from the same cohort not meeting literacy benchmarks had more than doubled. Va. Early Childhood Found., Virginia’s Biennial School Readiness Report Card 6 (2018), https://www.vecf.org/wp-content/plugins/pdf-viewer/stable/web/viewer.html?file=https://www.vecf.org/wp-content/uploads/2018/10/VECF2018BiennialSchoolReadinessReport.pdf [https://perma.cc/AZ48-TTAS]. ↑

  180. Class of 2020 Diplomas and Completion, Va. Dep’t of Educ. Sch. Quality Profiles, https://schoolquality.virginia.gov/virginia-state-quality-profile#desktopTabs-4 [https://perma.cc/YEL2-TGR8] (last visited Sept. 1, 2020). ↑

  181. College Board, SAT Suite of Assessments Annual Report: Virginia

    3, 8, 13

    (2019), https://reports.collegeboard.org/pdf/2019-virginia-sat-suite-assessments-annual-report.pdf [https://perma.cc/K927-KKYA]; The ACT, The Condition of College & Career Readiness 2019, Virginia Key Findings 7 (2019), http://www.act.org/content/dam/act/unsecured/documents/‌cccr-2019/Virginia-CCCR-2019.pdf [https://perma.cc/A6DN-7ZKY]. ↑

  182. Statistical Atlas, supra note 167 (showing Blacks twice as likely as the general population to be represented in the lowest three income brackets). ↑

  183. This Note does not discuss the 1960s federal immigration laws, mostly because Virginia’s Hispanic population remains quite small today, and most immigrants to the state of other races are fairly well-off (Virginia’s Asian population is one of the wealthiest groups in the country). Demographic and Economic Profiles of Hispanics by State and County, 2014: Virginia, Pew Rsch. Ctr., https://www.pewresearch.org/hispanic/states/state/va [https://perma.cc/JK4K-5D9S] (last visited Mar. 14, 2021); Zinie Chen Sampson, Virginia’s Asian Population Grows, Free Lance-Star (May 28, 2011), https://fredericksburg.com/local/virginias-asian-population-grows/article_ae0fc9e6-8af4-5dec-a7c7-35257f4a0f30.html [https://perma.cc/DR33-3MCE]. However, many of the disparities noted above are also true for the small but growing Hispanic community in Virginia, which has been hit especially hard by Coronavirus. Mechelle Hankerson, ‘My Community Doesn’t Have a Voice’: Are Virginia Schools Meeting the Needs of an Increasing Hispanic Population?, Va. Mercury (Sept. 16, 2019), https://www.virginiamercury.com/2019/09/16/my-community-doesnt-have-a-voice-are-virginia-schools-meeting-the-needs-of-an-increasing-hispanic-population/ [https://perma.cc/D5BH-3SDR]; Kate Masters, Latinos Shoulder a Disproportionate Share of COVID-19 Cases. Advocates Want More Representation in Contact Tracing., Va. Mercury (June 26, 2020), https://www.virginiamercury.com/2020/06/26/latinos-shoulder-a-disproportionate-share-of-covid-19-cases-advocates-wants-more-representation-in-contact-tracing/ [https://perma.cc/G33E-H8PB]. ↑

  184. Southwestern Virginia has been hit particularly hard by the opioid epidemic but also faces other economic and healthcare struggles. For an excellent read on the region, see generally Beth Macy, Dopesick: Dealers, Doctors, and the Drug Company that Addicted America (2018). ↑

  185. Robinson v. Cahill, 303 A.2d 273, 291 (N.J. 1973) (citing N.J. Const. of 1844, art. IV, § 7 (1875)). ↑

  186. State Profiles: New Jersey, Educ. L. Ctr., https://edlawcenter.org/states/newjersey.html [https://perma.cc/8FF5-G72R] (last visited Sept. 1, 2020). ↑

  187. See, e.g., Borough of Neptune City v. Borough of Avon by the Sea, 294 A.2d 47, 51, 56 (N.J. 1972) (holding that municipalities may not charge for beach use, due to the public trust doctrine); S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 336 A.2d 713, 724–25 (N.J. 1975) (holding that municipalities cannot use zoning laws to prohibit affordable housing for middle- and low-income residents); State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971) (holding that migrant workers can have access to necessary services despite traditional property law rules). ↑

  188. J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L.J. 2265, 2274 (1997) (reviewing Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges (1996) and David L. Kirp, John P. Dwyer & Larry A. Rosenthal, Our Town: Race, Housing, and the Soul of Suburbia (1995)). ↑

  189. N.J. Const

    .

    art. VI; id. at art. XI, § IV (describing the new court’s structure and transition plan). ↑

  190. Id. at art. VI, § VII. ↑

  191. Byrne, supra note 187, at 2274. ↑

  192. Arthur T. Vanderbilt, Law Library: American Law and Legal Information, https://law.jrank.org/pages/11066/Vanderbilt-Arthur-T.html [https://perma.cc/Q3LC-798C] (last visited July 5, 2021). ↑

  193. Id. See, e.g., Winberry v. Salisbury, 74 A.2d 406, 414 (N.J. 1950) (holding, in an opinion by Chief Justice Vanderbilt, that the New Jersey Constitution gives power to the courts, not the legislature, to decide rules affecting procedure in the state’s courts). ↑

  194. Many first-year law students will remember reading State v. Shack in their property class. The case is an example of the court’s innovative take on property law. See State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971). ↑

  195. Byrne, supra note 187, at 2274. ↑

  196. Id. ↑

  197. Id. See Educ. L. Ctr., supra note 185. ↑

  198. Bruce D. Baker & Sean P. Corcoran, Ctr. for Am. Progress, The Stealth Inequities of School Funding: How State and Local School Finance Systems Perpetuate Inequitable Student Spending 5 (2012) [hereinafter CAP Report]; see also Baker et al., supra note 11, at 11 (showing New Jersey ranking among the top states in funding distribution in 2015 and Virginia ranking among the lowest); Ryan, supra note 95, at 160 (describing high-poverty schools in New Jersey as “generously funded” due to “school finance litigation”). ↑

  199. Baker et al., supra note 11, at 16–17; see also CAP Report, supra note 197, at 5 (displaying New Jersey’s school funding system from 2007 to 2009). ↑

  200. Baker et al., supra note 11, at 11. ↑

  201. New Jersey is probably recently famous for the debacle of education reform in Newark Schools, in which millions of dollars were raised, but the classrooms never saw the money. See Dale Russakoff, Schooled, New Yorker (May 12, 2014), https://www.newyorker.com/magazine/2014/05/19/schooled [https://perma.cc/5TST-B7KM]. ↑

  202. Race and Ethnic Achievement Gaps, Stan. Ctr. for Educ. Pol’y Analysis, https://cepa.stanford.edu/educational-opportunity-monitoring-project/achievement-gaps/race/ [https://perma.cc/R3CH-WG2C] (last visited June 2, 2020). ↑

  203. U.S. Dep’t of Educ., School Composition and the Black-White Achievement Gap 24 (2015), https://nces.ed.gov/nationsreportcard/subject/studies/pdf/school_composition_and_‌the_bw_achievement_gap_2015.pdf [https://perma.cc/DM6C-MCMZ] [hereinafter School Composition]. ↑

  204. Like Virginia, New Jersey has some of the best-ranked public schools in the nation. See, e.g., U.S. News Best High Schools Rankings, U.S. News & World Rep., https://www.usnews.com/education/best-high-schools/rankings-overview (last visited Mar. 20, 2020) (listing a school in Northern Virginia as the best public high school in the nation). ↑

  205. State Performance Compared to the Nation, Nation’s Rep. Card, https://www.nationsreportcard.gov/profiles/stateprofile?chort=1&sub=MAT&sj=AL&sfj=NP&st=MN&year=2019R3 [https://perma.cc/JH8Y-SXAG] (last visited June 9, 2021) (choose “Grade 4,” toggle between “Mathematics” and “Reading,” and select “Average scale scores” and “2019”). ↑

  206. N.J. Const. art. VIII, § IV. ↑

  207. Id. ↑

  208. Ryan, supra note 95, at 146. ↑

  209. Baker et al., supra note 11, at 10–11, 16, 17. ↑

  210. Stan. Ctr. for Educ. Pol’y Analysis, supra note 201. ↑

  211. Fourth-grade reading ranks third in the nation, and fourth-grade math ranks seventh. In eighth grade, rankings drop slightly. Nation’s Rep. Card, supra note 204. ↑

  212. Wyo. Const. art. VII, § 8. ↑

  213. Id. at art. VII, § 1. ↑

  214. Id. at art. VII, § 10. Wyoming is known as the ‘equality state’ because it was the first state to grant women suffrage, and did so from its inception. Id. at art. VI, § 1. ↑

  215. Id. at art. VII, § 14. ↑

  216. Id. at art. VII, § 11. ↑

  217. 606 P.2d 310, 314, 320 (Wyo. 1980). ↑

  218. Id. at 314–15. ↑

  219. Id. at 315 n.3. ↑

  220. Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1246–47 (Wyo. 1995). ↑

  221. Id. at 1238, 1247–48. ↑

  222. Id. at 1249–50. ↑

  223. Id. at 1279–80. ↑

  224. Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). Scott occurred just one year before Campbell County. The difference in the level of analysis and detail in the opinions is remarkable. ↑

  225. Campbell Cty. Sch. Dist., 907 P.2d at 1279. ↑

  226. Virginia has a population of over 8 million, while Wyoming’s population has yet to cross 600,000. Race and Ethnicity in Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020). ↑

  227. Race and Ethnicity in Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020). ↑

  228. U.S. Dep’t of Educ., supra note 202, at 23 n.21, 24–25. ↑

  229. See supra note 213 and accompanying text. ↑

  230. Wyoming did not become a state until 1890, after slavery was outlawed in the United States. The state constitution began with statements of racial equality. See Wyo. Const. art. I, § 2. This is not to say that Wyoming avoided all discrimination, but rather, it was never as entrenched as was the case in Virginia. See, e.g., Kim Ibach & William Howard Moore, The Emerging Civil Rights Movement: The 1957 Wyoming Public Accommodations Statute as a Case Study, 73 Annals of Wyo. 2, 3 (2001). ↑

  231. One of the biggest advocates for education funding in Virginia is rural Republican State Senator Bill Stanley, who has recognized that there are striking similarities in the needs of rural and urban school districts. Amy Friedenberger, ‘Facing a Dire Need’ for Funding for School Construction, Virginia Lawmakers Pitch Proposals, Roanoke Times (Jan. 18, 2020), https://www.roanoke.com/news/education/facing-a-dire-need-for-funding-for-school-construction-virginia-lawmakers-pitch-proposals/article_fdcfc9ef-54a9-5d7d-b780-b87a44d8a0fa.html [https://perma.cc/6GYC-T3TM]; see also Macy, supra note 183 (describing life in rural Virginia). ↑

  232. Sabrina Tavernise & Robert Gebeloff, How Voters Turned Virginia from Deep Red to Solid Blue, N.Y. Times (Nov. 9, 2019), https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-republicans.html [https://perma.cc/X8Q6-LXNK]. ↑

  233. See, e.g., Wyoming Education Ranked 6th in Nation by the National Education Quality Report,

    KULR8

    News (Sept. 5, 2019), https://www.kulr8.com/news/wyoming-education-ranked-th-in-nation-by-the-national-education/article_e2dcc056-d036-11e9-a031-9f508f484af7.html [https://perma.cc/2WMW-4BBF] (quoting State Superintendent of Public Instruction Jillian Balow). ↑

  234. See supra Section III.B. ↑

  235. See supra notes 111–115 and accompanying text. ↑

  236. See supra notes 216–232 and accompanying text. ↑

  237. See supra notes 211–212 and accompanying text. ↑

  238. See supra Part II. ↑

  239. Richmond’s private school attendance rate, around 30%, is significantly higher than the national average. Libby Germer, A Public History of Public Housing: Richmond, Virginia, Yale Nat’l Initiative to Strengthen Teaching in Pub. Schs. (last visited Sept. 23, 2020), https://teachers.yale.edu/curriculum/viewer/initiative_15.03.05_u [https://perma.cc/XDQ2-HRL2]. The national average in the United States has consistently hovered around 10%. Jack Jennings, Proportion of U.S. Students in Private Schools is 10 Percent and Declining, Huffington Post (Mar. 28, 2012, 12:31 PM), https://www.huffpost.com/entry/proportion-of-us-students_b_2950948 [https://perma.cc/TZ9Z-S534]. ↑

  240. Va. Code Ann. § 22.1-25(A) (2016). See also Ciolfi, supra note 156, at 807 (suggesting the unconstitutionality of current division in lines in Virginia because they do not promote or realize the standards of quality). ↑

  241. See supra note 167 and accompanying text. ↑

  242. See supra Section III.C; Duncombe & Cassidy, supra note 13. ↑

  243. See supra Part I. ↑

  244. See supra Part II. ↑

  245. See supra Part III. ↑

  246. See supra Part IV. ↑

  247. In fact, it is unclear if those in the middle are doing particularly well. While federally required data highlights children below the federal poverty level as a group, it aggregates all other children together, hiding the wide disparities in outcomes between the middle and the very rich. See Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite 124–33 (2019). We may be missing important trends in achievement and education amongst middle- and working- class children. Though school reformers may still be focused on the plight of the poor, increasing attention to the middle— and better disaggregating data—may shed light on even more concerning trends. ↑

  248. Duncombe & Cassidy, supra note 13, at 1. ↑

  249. Ryan, supra note 95, at 149–50. ↑

  250. This Note does not address charter schools because Virginia has very few, and the movement hasn’t gained much ground in the Commonwealth. Virginia’s Public Charter Schools, Va. Dep’t of Educ., https://www.doe.virginia.gov/instruction/charter_schools/‌charter_schools.shtml [https://perma.cc/4YD3-W3LZ] (last visited June 9, 2021) (listing only 8 charter schools operating in the state); Editorial, A Chance for Charter Schools To Finally Break Through in Virginia, Wash. Post (Feb. 14, 2017), https://www.washingtonpost.com/opinions/a-chance-for-charter-schools-to-finally-break-through-in-virginia/2017/02/14/82e6539e-efd6-11e6-b4ff-ac2cf509efe5_story.html [https://perma.cc/4PZG-BTBB] (discussing the political difficulties). ↑

  251. For the full debate on school governance, see Who’s in Charge Here? The Tangled Web of School Governance and Policy (Epstein ed., 2004). ↑

  252. See, e.g., CAP report, supra note 197, at 17. ↑

  253. See generally, e.g., Kimberly Jenkins Robinson, A Federal Right to Education: Fundamental Questions for Our Democracy

     

    (2019); While advocacy for increased federal help has certainly resulted in more standardized testing and more litigation, as of 2018, federal dollars made up less than 8% of school revenue. Nat’l Educ. Ass’n

    ,

    supra note 133, at 8. For the same reason that a low state share of funding results in greater inequities between districts, a low national share contributes to large inequities between state spending on students. See, e.g., Markovits, supra note 246, at 126–27. ↑

  254. I am not the first scholar to suggest this. See, e.g., Ryan, supra note 95, at 1–14. ↑

  255. See supra Part II. ↑

  256. Alisa Chang & Jonaki Mehta, Why U.S. Schools Are Still Segregated—And One Idea To Help Change That, NPR (July 7, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how-funding-model-preserves-racial-segregation-in-public-schools [https://perma.cc/SY6Y-KXFL]. ↑

  257. See CAP Report, supra note 197, at 1–2. ↑

  258. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 14–16 (1973); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392–93 (Tex. 1989); David G. Hinojosa, Rodriguez v. San Antonio Independent School District: Forty Years and Counting, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 24­–40 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015). ↑

  259. Hinojosa, supra note 257, at 37–38. ↑

  260. Friedenberger, supra note 230; JLARC Report to the Governor and the General Assembly of Virginia, Efficiency and Effectiveness of K-12 Spending, S. Doc. No. 11 (2015). ↑

  261. Editorial, Lots of Virginia Schools are Outdated. Why That Matters., Roanoke Times (Aug. 15, 2018), https://roanoke.com/opinion/editorials/editorial-lots-of-virginia-schools-are-outdated-why-that-matters/article_cc2a3cbe-f65c-5453-86f6-22c4e846d353.html [https://perma.cc/8NV9-TS6C]; Debbie Truong, ‘Borderline Criminal’: Many Public Schools Teeter on the Edge of Decrepitude, Wash. Post (May 25, 2019, 4:55 PM), https://www.washingtonpost.com/local/education/borderline-criminal-thats-the-condition-of-decrepit-public-schools/2019/05/25/bad60064-556f-11e9-814f-e2f46684196e_story.html [https://perma.cc/9FA5-L3J2]; Brendan King & Chelsea Rarrick, Richmond Teachers Believe Moldy Classrooms are Making Them Sick, CBS 6 News Rich. (Oct. 3, 2016, 11:37 AM), https://www.wtvr.com/2016/10/02/richmond-teachers-believe-moldy-classrooms-are-making-them-sick/. ↑

  262. As of 2018, Richmond’s required construction budget hovered around 800–900 million dollars. Truong, supra note 260. The annual operating budget of Richmond city in that year was about 700 million dollars. City of Rich., Adopted Annual Fiscal Plan for Fiscal Year 2018 (2018) http://www.richmondgov.com/Budget/documents/BiennialPlans/2018_‌AdoptedAnnualFiscalPlan.pdf [https://perma.cc/M94Q-K8A5]. ↑

  263. Cf. Editorial, supra note 260 (describing analogous conditions). See also Zachary Reid, 100 Years Ago, Richmond’s Students Faced a Situation Similar to Today’s: Crumbling Facilities, Rich. Times-Dispatch (Apr. 30, 2016), https://richmond.com/news/local/100-years-ago-richmonds-students-faced-a-situation-similar-to-todays-crumbling-facilities/article_712a5f52-f50d-5bec-a09f-40221195a5be.html [https://perma.cc/M3AT-6DCK] (noting the racial disparities in crumbling school buildings). ↑

  264. Ryan, supra note 95, at 129 (“By all accounts, [the foundation amount] is unrealistically low.”); see also Salmon, supra note 7, at 155–61 (concluding that Virginia’s school funding is inadequate). ↑

  265. The Local Composite Index formula is contained in the biennial budget language. 2020 Va. Acts 153–55. Note that Virginia does have a separate budget line item called the At-Risk Add-On (created shortly after the Scott case), which provides additional funds for disadvantaged students. Va. Code Ann. § 22.1-199.1 (2020). However, it has also suffered from budgetary limitations. See, e.g. Chris Duncombe & Chad Stewart, Virginia Can Choose Equity for School Funding During Economic Crisis (2020), https://www.thecommonwealthinstitute.org/wp-content/uploads/2020/06/Virginia-Can-Choose-Equity-for-School-Funding-During-Economic-Crisis.pdf [https://perma.cc/9UEC-5MRU] (describing the un-allotment of At-Risk funds during economic downturns). ↑

  266. Ryan, supra note 95, at 157­–70; CAP Report, supra note 197, at 1–2. ↑

  267. Early Childhood Education, Ctrs. for Disease Control & Prevention (“CDC”), https://www.cdc.gov/policy/hst/hi5/earlychildhoodeducation/index.html [https://perma.cc/GE3V-QZRD] (last visited Aug. 5, 2016); Tamara Halle et al., The Research Base for a Birth Through Eight State Policy Framework Child Trends (2013), https://www.childtrends.org/wp-content/uploads/2013/12/2013-20ResearchBase.pdf [https://perma.cc/D42D-7L75]. ↑

  268. Preschool, Va. Dep’t of Educ., http://www.doe.virginia.gov/early-childhood/preschool/index.shtml [https://perma.cc/N9YB-4VWH] (last visited Sept. 2, 2020) (showing public options available for needy students; note that non-qualifying students must find private options, which range from home settings to official preschools or daycares); Allison H. Friedman-Krauss et al., The State of Preschool 2018: State Preschool Yearbook 162–63 (2019) (showing that Virginia’s public state preschool program still has limited access, ranking poorly across the board). ↑

  269. See Friedman-Krauss et al., supra note 267, at 162–63. ↑

  270. CDC, supra note 266. ↑

  271. Id.; see also Press Release, Learning Pol’y Inst., What Does the Research Really Say About Preschool Effectiveness? (Jan. 31, 2019), https://learningpolicyinstitute.org/press-release/what-does-research-really-say-about-preschool-effectiveness [https://perma.cc/JAY7-229Z] (reaffirming that children enrolled in preschool reap both short- and long-term benefits). Sarah Jane Glynn, Jane Farrell & Nancy Wu, The Importance of Preschool and Child Care for Working Mothers, Ctr. for Am. Progress (May 7, 2013), https://www.americanprogress.org/issues/education-k-12/reports/2013/05/08/62519/the-importance-of-preschool-and-child-care-for-working-mothers/ [https://perma.cc/2US8-3C3K]; Kelsey Piper, Early Childhood Education Yields Big Benefits—Just Not the Ones You Think, Vox (Oct. 16, 2018, 9:00 AM), https://www.vox.com/future-perfect/2018/10/16/17928164/early-childhood-education-doesnt-teach-kids-fund-it. ↑

  272. CDC, supra note 266. ↑

  273. David M. Quinn & Morgan Polikoff, Summer Learning Loss: What Is It, and What Can We Do About It?, Brookings (Sept. 14, 2017), https://www.brookings.edu/research/summer-learning-loss-what-is-it-and-what-can-we-do-about-it/ [https://perma.cc/4G76-MYYR]; Jaclyn Zubrzycki, Year-Round Schooling Explained, EducationWeek (Dec. 18, 2015), https://www.edweek.org/leadership/year-round-schooling-explained/2015/12 [https://perma.cc/7B9Q-FUD7]. ↑

  274. Afterschool Alliance, What Does the Research Say about Afterschool? (Nov. 2017), http://afterschoolalliance.org/documents/What_Does_the_Research_Say_About_Afterschool.pdf [https://perma.cc/G2ZU-63AB]; Benefits for Youth, Families, & Communities, Youth.Gov, https://youth.gov/youth-topics/afterschool-programs/benefits-youth-families-and-communities [https://perma.cc/X57N-CMXG] (last visited Sept. 1, 2020). ↑

  275. Piper, supra note 270 (explaining why benefits accrue more the closer a program starts to birth). ↑

  276. Editorial, Will Virginia Finally Mandate Equal Schools?, Roanoke Times (Jan. 24, 2020), https://roanoke.com/opinion/editorials/editorial-will-virginia-finally-mandate-equal-schools/article_804e788e-0606-528a-8d90-b048f3300ddc.html [https://perma.cc/6757-QFLY]. ↑

  277. Ciolfi, supra note 156, at 820; Chang & Mehta, supra note 255. ↑

  278. Tyson, supra note 165, at 169–70. ↑

  279. Kimberly A. Goyette, Danielle Farrie & Joshua Freely, This School’s Gone Downhill: Racial Change and Perceived School Quality Among Whites, 59 Soc. Probs. 155, 166–71 (2012) (describing how white parents perceive their school quality to be declining simply as a result of greater numbers of Black children attending the school, regardless of actual metrics); Chase M. Billingham & Matthew O. Hunt, School Racial Composition and Parental Choice: New Evidence on the Preferences of White Parents in the United States, 89 Soc. Educ. 99, 99 (2016) (finding that the “proportion of [B]lack students in a hypothetical school has a consistent and significant inverse association with the likelihood of white parents enrolling their children in that school”). ↑

  280. The Benefits of Socioeconomically and Racially Integrated Classrooms, Century Found. (Apr. 29, 2019), https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and-classrooms/. ↑

  281. Id. (finding that students in integrated classrooms are less likely to drop out, more likely to enroll in college, and on average have higher test scores). ↑

  282. Alana Semuels, The City that Believed in Desegregation, Atlantic (Mar. 27, 2015) https://www.theatlantic.com/business/archive/2015/03/the-city-that-believed-in-desegregation/388532/ [https://perma.cc/XU4N-DJ5V]; see also John Eligon, Busing Worked in Louisville. So Why Are Its Schools Becoming More Segregated?, N.Y. Times (July 28, 2019), https://www.nytimes.com/2019/07/28/us/busing-louisville-student-segregation.html [https://perma.cc/LGN7-8HE2] (noting that a Louisville school district is one of the nation’s most racially integrated). ↑

  283. John Brittain, Larkin Willis & Peter W. Cookson Jr., Sharing the Wealth: How Regional Finance and Desegregation Plans Can Enhance Educational Equity, (2019), https://learningpolicyinstitute.org/sites/default/files/product-files/Sharing_The_Wealth_REPORT.pdf [https://perma.cc/86NL-6LVJ]. ↑

  284. Id. ↑

  285. Ryan, supra note 95, at 112–14. ↑

  286. See, e.g., id. at 112. ↑

  287. Id. at 113 (describing a stump speech by President Reagan against busing and comprehensive integration in schools where the “crowd greeted these statements with silence” and the local paper called integration the district’s “proudest achievement”). ↑

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 107 / Issue 5  

What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the …

By Josh Bowers
107 Va. L. Rev. 959

Interpreting Injunctions

Injunctions are powerful remedies. They can force a person to act or refrain from acting, dictate policies that the government must adopt, or even refashion public institutions. Violations of an injunction can result in contempt. Despite the …

By F. Andrew Hessick and Michael T. Morley
107 Va. L. Rev. 1059

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity. In the years after Brown, Virginia …

By Juliet Buesing Clark
107 Va. L. Rev. 1115
©Virginia Law Review Association. All rights reserved.