Race-Based School Choice Policies May Be in Violation of the Equal Protection Clause

Sometimes we realize what we thought was a good idea at the time was really a terrible idea.  No, I’m not referring to mullets. I’m talking about the race-based policies of the voluntary inter-district school choice program in St. Louis.

In the 1970s, St. Louis Public Schools and the State of Missouri were sued for maintaining a segregated education system in the city. The U.S. Court of Appeals upheld the ruling and school districts in the area began working on a plan to fix the problem of segregated schools. The solution, from a 1983 settlement agreement, was to allow black students in the city to attend predominantly white schools in the county and to allow white students in county schools to attend predominantly black city magnet schools. This “voluntary” program was to improve integration in the city and county.

Although well-intentioned, this policy has become a roadblock for black students wanting to attend a high-quality school in the city. Take Edmund Lee, for example. As Fox 2 reports, Edmund is a bright African-American 3rd-grader at Gateway Science Academy in St. Louis. Gateway is one of many high-quality charter schools in the city. Edmund’s family will be moving soon to the county, but would like to utilize the transfer program to allow him to continue at the school he loves. There is just one problem—he’s black. Black county students cannot transfer into the city, because that wouldn't help integration efforts.

Of course, this problem is not new, and it goes both ways. White students in the city cannot transfer to Clayton, Kirkwood, or any of the high-performing county schools because they are white.

The case of Edmund Lee may not just be sad; it may also be illegal. In 2012, the United States District Court for the Western District of Arkansas found a similar policy to be in violation of the Equal Protection Clause of the 14th amendment to the U.S. Constitution. Arkansas allowed students to transfer to another public school, provided they improved the racial balance of the schools.  As in the transfer program in St. Louis, black students in predominantly black schools could transfer to predominantly white schools and white students in predominantly white schools could transfer to black schools.

The court wrote, “The legislation was no doubt properly motivated in its desire to end segregation, but the question that must be addressed is whether the legislation infringes on federally protected rights.” In the end, the court decided the law did violate the rights of individual under the 14th amendment.

A similar fate could be in store for the St. Louis transfer program. For those who believe that the goal of the program is a noble one, wouldn’t it make sense to expand the program so that all students, regardless of race, could choose to attend the schools that fit them best? Doing so would not only avert the danger of violating the 14th amendment, but it would also allow students like Edmund Lee to continue attending the schools they love.