Charter Schools: Racial Balancing Provisions and Parents Involved

Abstract

For years, legal scholars have tried to determine the constitutionality of charter school racial balancing provisions. However, since the United States Supreme Court had not ruled on the constitutionality of racial balancing policies at the elementary and secondary education levels, they often had to rely on federal district or circuit courts of appeals decisions for their analysis. On June 28, 2007, the Supreme Court would bring greater clarity to the issue in Parents Involved in Community Schools v. Seattle School District No. 1. While this case dealt with racial balancing policies at public schools, the same principles should guide the Court's analysis of charter school racial balancing provisions since these provisions are creatures of government action.

In this article we analyze the constitutionality of charter school racial balancing provisions on the heels of Parents Involved. We conclude that not all charter school racial balancing provisions are unconstitutional. However, these provisions might have a greater chance of surviving judicial review if the various principles identified from the decision are accounted for in the provisions. In the first section, we provide an overview of the charter school movement. We also examine the charter school-public school distinction. In the second section, we discuss the different eras in the federal judiciary’s approach to racial desegregation and the derivative case for charter school racial balancing provisions. We also discuss the segregated nature of charter schools. In the third section, we identify the various charter school racial balancing provisions and categorize them. In the fourth section, we provide an overview of the Parents Involved decision, identifying important principles from the decision. In the final section, we analyze the constitutionality of the various categories of charter school racial balancing provisions identified in the second section, given Parents Involved.

Keywords: charter schools, education, race, Parents Involved, public schools, racial balancing, racial, black, minority, segregation, resegregation, desegregation, racial imbalance, Brown, strict scrutiny, rational basis, Plessy