Duke Journal of Constitutional Law & Public Policy
Duke J. Const. L. & Pub. Pol'y
White charter school enclaves — defined as charter schools located in school districts that are thirty percent or less white, but that enroll a student body that is fifty percent or greater white — are emerging across the country. The emergence of white charter school enclaves is the result of a sobering and ugly truth: when given a choice, white parents as a collective tend to choose racially segregated, predominately white schools. Empirical research supports this claim. Empirical research also demonstrates that white parents as a collective will make that choice even when presented with the option of a more racially diverse school that is of good academic quality.
Despite the connection between collective white parental choice and school segregation, greater choice continues to be injected into the school assignment process. School choice assignment policies, particularly charter schools, are proliferating at a substantial rate. As a result, parental choice rather than systemic design is creating new patterns of racial segregation and inequality in public schools. Yet the Supreme Court’s school desegregation jurisprudence insulates racial segregation in schools ostensibly caused by parental choice rather than systemic design from regulation. Consequently, the new patterns of racial segregation in public schools caused by collective white parental choice largely escapes regulation by courts.
This article argues that the time has come to reconsider the legal and normative viability of regulating racial segregation in public schools caused by collective white parental choice. The article makes two important contributions to the legal literature on school desegregation. First, using white charter school enclaves as an example, it documents the ways in which school choice policies are being used to allow whites as a collective to satisfy their preference for segregated predominately white schools. Second, the article sets forth both constitutional and normative arguments for regulating the private choices that result in stark racial segregation patterns in public schools.