analysis for quasi-public deregulated schools is the extent to which
553. Successful challenges to state systems of financing schools on equal protection grounds include Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90 (Ark. 1983), Serrano v. Priest, 557 P.2d 929 (Cal. 1976), Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989), Helena Ele- mentary Sch. Dist. No. 1 v. State, 769 P.2d 684 (Mont. 1989), and Abbott v. Burke, 643 A.2d 575 (N.J. 1994). For a discussion of the numerous state-level challenges to school financing systems, see Alexandra Natapoff, 1993: The Year of Living Dangerously: State Courts Expand the Right to Education, 92 W. EDUC. L. REP. 775, 762-64 & n.36 (describing types of school finance litiga- tion brought in state courts over past three decades); see also Merri Rosenberg, Suit Due on School Financing, N.Y. TIMES, Sept. 4, 1998, at 14C (discussing two suits that challenge the in- adequacy of the present school funding formula for providing adequate education for New York’s public school students).
554. See OZMON & CRAVER, supra note 1, at 25 (discussing the likelihood that vouchers will take funding away from traditional schools); Note, supra note 391, at 2004-06 (same).
555. See, e.g., Abbott, 643 A.2d at 575 (finding that the state had violated equal protection standards by failing to ensure that students living in certain districts were funded at levels high enough to result in a thorough and efficient education).
556. See N.J. STAT. ANN. § 18A:36A-6(c), (g) (West 1999) (empowering charter schools to receive and disburse funds and accept real property).
the educational diversity that they create is a justification for those schools, their status identifiability notwithstanding. Dicta from the Court’s equal protection precedent implies that diversity may provide a rationale for status-identifiable charter schools.
In three major cases Supreme Court Justices have voiced support for the idea that diversity may be a legitimate basis for status- conscious governmental programs. In Wygant v. Board of Educa-
tion,557
Justice O’Connor stated her judgment that “a state interest in the promotion of racial diversity has been found to be sufficiently ‘compelling,’ at least in the context of higher education.”558 Justice O’Connor presumably was referring to the Court’s opinion in Regents
of University of California v. Bakke,559 in which Justice Powell, writing for a plurality, reasoned that a university’s right to academic free- dom—in particular, its decision to seek a diverse student body—was a justification for race-conscious affirmative action in medical school admissions.560 Moreover, in the most recent case, United States v. Vir-
ginia, Justice Ginsburg, writing for the majority, suggested that single-
sex education might be justified if the state’s provision of it is “even- handed” and designed to promote “diverse educational opportuni- ties,” as opposed to perpetuating discrimination or sex-based stereo- types.561
Although two Ninth Circuit panels, as well as a federal district court in Michigan, have declared it a compelling governmental inter- est,562
the diversity rationale for status-conscious state action in educa- tion has been rejected by three circuit courts.563
The notion of diver-
557. 476 U.S. 275 (1986). 558. Id. at 286.
559. 438 U.S. 265 (1978).
560. Id. at 313-15 (Powell, J., plurality opinion). For an analysis of Bakke’s language on di- versity, see Akhil Reed Amar & Neal Kumar Katyal, Bakke’s Fate, 43 UCLA L. REV. 1745, 1750 (1996).
561. United States v. Virginia (VMI), 518 U.S. 515, 534 n.7 (1996).
562. See Smith v. University of Wash., Nos. 99-35209, 99-35347, 99-35348, 2000 U.S. App. LEXIS 31160, at *24 (9th Cir. Dec. 4, 2000) (finding the use of race in admissions to attain a di- verse student body in higher education institutions lawful); Hunter v. Regents of the Univ. of Calif., 190 F.3d 1061, 1064 (9th Cir. 1999) (finding that the use of race and ethnicity in an admis- sions process was justified where the elementary school was research-oriented and dedicated to improving educational quality in urban schools); Gratz v. Bollinger, No. 97-CV-75231-DT, 2000 U.S. Dist. LEXIS 18099, at *40 (E.D. Mich. Dec. 13, 2000) (finding diversity to be a compelling interest that justifies the addition of points to the admissions indices of certain minorities by the University of Michigan).
563. See Wessmann v. Gittens, 160 F.3d 790, 795-800 (1st Cir. 1998) (rejecting the diversity rationale in admissions to an elite high school); Lutheran Church-Missouri Synod v. FCC, 141
sity rejected in those cases is distinct from that which is proposed here and that which was sanctioned in Bakke and the dicta in VMI in my judgment. Rather than referring to a raw correlation between status and diversity, diversity as imagined here refers to variety among edu- cational programs, such as the curricula available in charter schools versus that available in conventional schools, together with the value of racial diversity per se.564
The former type of diversity directly impli- cates the state’s traditional educational policymaking prerogatives, as understood in cases from Rodriguez to Milliken to Pitts.565
The latter is consistent with the Court’s recognition that heightened scrutiny of status-conscious programs need not mean a finding of unconstitution- ality.566
Educational diversity may provide the best overall justification for status-identifiable deregulated schools. This conception of a state’s interest in establishing charter schools is consistent with my understanding that federalism is an independent basis for the pre- sumptive constitutionality of deregulated schools. It also comple- ments the idea that judicial deference to state legislatures’ passage of charter school enabling legislation may be warranted by the quasi- public character of some charter schools.
Still, the diversity rationale will not support a status-identifiable charter school that is not narrowly tailored to achieve its purpose. The need for narrow tailoring counsels against states’ explicit refer- ences to race- or sex-consciousness in charter school legislation. In-
F.3d 344, 354 (D.C. Cir. 1998) (holding that diversity is not a compelling rationale for employing preferences when awarding broadcast licenses); Hopwood v. Texas, 78 F.3d 932, 948 (5th Cir. 1996) (rejecting the diversity rationale in university admissions), aff’d in part, rev’d in part, 2000 U.S. App. LEXIS 33523 (5th Cir. Dec. 21, 2000) (remanding for further findings of fact and con- clusions of law).
564. An insightful legal analysis of diversity is found in John Charles Boger, Willful Color- Blindness: The New Racial Piety and the Resegregation of Public Schools, 78 N.C. L. REV. 1719, 1740-80 (2000) (discussing recent decisions on school assignment in light of the Supreme Court’s equal protection jurisprudence); Kim Forde-Mazrui, The Constitutional Implications of Race- Neutral Affirmative Action, 88 GEO. L.J. 2331, 2382-88 (2000) (suggesting constitutional difficul- ties of race-neutral affirmative action). For discussions of recent social science literature on the issue of whether racial diversity positively impacts the school environment, see Patricia Gurin, The Compelling Need for Diversity in Higher Education, Expert Report (1999) (expert witness testimony in Gratz v. Bollinger, 183 F.R.D. 209 (E.D. Mich. 1998)), available at http://www.umich.edu/urel/admissions/legal/expert/-index.html (on file with the Duke Law Journal); see also Michael Kurlaender & John T. Yun, Is Diversity a Compelling Education In- terest? Evidence from Metropolitan Louisville, at http://www.law.harvard.edu/groups/civilrights/ publications/-louisville.html (Aug. 2000) (on file with the Duke Law Journal).
565. See supra notes 431-43 and accompanying text.
stead, states that wish to expand educational opportunity by estab- lishing charter schools, while ensuring equality, should amend statutes in the following manner: avoid references to race or sex, make the means by which charter schools may comply with the antidiscrimina- tion goals that it wishes to advance more explicit, and mandate close administrative oversight of the charter school recruitment process. These suggestions are explicated further in the final part of this Arti- cle.567