in Kansas City, Missouri, the locality from which the Supreme Court’s most recent ruling on desegregation arose,550
the desegregation order at issue relied on a magnet school program to promote a “quality of education” remedy.551
The result of this program is that the Kansas City school district is equipped with facilities and opportunities unavailable in any other school district in Missouri.552
545. Cf. id. at 16, 23 (deferring to state tax and educational policies on a rational relation level of review on the grounds that the state’s prerogatives could not be legitimately overridden by the federal government, which has no constitutional authority to intervene where no suspect classification or federal fundamental right is deemed at issue).
546. See supra notes 386-403 and accompanying text (discussing the advantages and disad- vantages of the Garrett standard).
547. Vorchheimer v. School Dist., 532 F.2d 880, 881-83, 886-87 (3d Cir. 1976), aff’d by an equally divided court, 430 U.S. 703 (1977) (per curiam); see also supra notes 379-85 and accom- panying text (discussing Vorchheimer).
548. Freeman v. Pitts, 503 U.S. 467, 493 (1992); Milliken v. Bradley, 418 U.S. 717, 734 (1974).
549. See supra notes 236-38 and accompanying text. 550. See Missouri v. Jenkins, 515 U.S. 70 (1995). 551. See id. at 75-78 & n.1.
552. See id. at 102. It is not clear that this is still the case, given the recent problems of this school district, including its loss of full accreditation. See Rick Pierce, City Schools Win Provi- sional Accreditation from State Board, ST. LOUIS POST-DISPATCH, Oct. 20, 2000, at C8.
Suppose that single-sex deregulated schools were established in localities in close proximity to Kansas City, that the programming in the deregulated schools was considered equal or superior to that available in Kansas City’s magnet schools, and that these schools at- tracted a student body of predominantly African-American and La- tino girls. Then consider that an equal protection challenge to the charter schools was brought on grounds that minority and white males were being denied access to the superior programs available at the charter schools, and moreover, that the charter schools were un- dermining the outstanding court order.
Under such circumstances, a pragmatist court’s consideration of the challenge would have to turn on the specific goals of the out- standing desegregation order, as compared to the predicate facts that gave rise to the establishment of the single-sex charter schools. For instance, the court would consider whether the Kansas City desegre- gation order contains any generally applicable racial balance goals for student assignment, and whether the racial identifiability of the hypo- thetical girls’ school resulted from residential choice, as opposed to a deliberate state policy to establish a school for minority girls. If the order contained no racial balance goals and the racial identifiability of the girls’ schools resulted from residential choice, the court might conclude that there was no basis for subjecting the school to height- ened scrutiny, notwithstanding its status-identifiable student body. Even if the order contained racial balance goals, a pragmatic court might still reach the same conclusion if there were no ongoing en- forcement proceedings or efforts to achieve balance prior to the es- tablishment of charter schools. That court could conclude that the existence of a desegregation order should not be used as a means of quashing experimental education programs when no concern about racial imbalances previously was apparent.
The pragmatic court also would need to consider the relationship between the outstanding court-ordered requirements relating to edu- cational programming and the programming available at the charter schools. A court might make this determination on the basis of whether the programming available at the two school sites was sub- stantially equal. If, as in Vorchheimer, the court reviewing the hypo- thetical challenge to the charter school for girls determined that there was not a substantial difference between the curriculum of the chal- lenged school and others, the court might choose not to subject the charter school to a heightened level of scrutiny. On the other hand, if the court determined that programming at the girls’ school was supe-
rior to or different from (in a stereotypical fashion) that in other Kan- sas City schools, it might apply a heightened level of scrutiny to the state’s decision to permit the establishment of a single-sex charter school.
Similarly, if a state’s schools were subject to a (state) court order relating to school finance—as might well be the case in many states553 —the court would need to consider the specific nature of the relevant school finance decree. The court would need to know what is re- quired financially of the relevant local school districts under the or- der, and to determine whether status-conscious deregulated schools undermine compliance with the order.554
The situation in New Jersey is instructive. The state’s public schools currently are subject to a court order that requires all schools to be funded at levels that will provide all students with a “thorough and efficient” education.555
At the same time, New Jersey has passed charter school enabling legislation that permits deregulated schools to accept funding from private sources.556
In light of the existing school finance order, a court considering an equal protection challenge to the enabling legislation based on differential availability of resources to particular communities might find that a heightened level of scru- tiny was appropriate.
3. The Diversity Rationale. A matter to which courts should give