Do Richmond schools violate the Constitution?

4/28/2017, 5:46 p.m.

Are Richmond Public Schools students being forced to attend educational facilities deemed unconstitutional under the U.S. Constitution?

This is a necessary question as columnists ready their usual annual articles celebrating the May 17, 1954, Brown v. Board of Education of Topeka decision (Brown I). This case is widely known to all Americans. A unanimous U.S. Supreme Court declared state laws, Virginia’s among them, segregating “educational facilities” by race to be “inherently unequal.”

But the subsequent May 31, 1995, Brown v. Board of Education of Topeka ruling (Brown II) is little known nor journalistically prominent. This is unfortunate. Brown I only established the broad constitutional principle giving all kindergarten through 12th-grade students the right to equal educational opportunity. Brown II tackles the knottier legal problem: Establishing criteria for determining whether the right is being provided.

Brown I correctly said “education is perhaps the most important function of state and local governments.” The national government’s practical role has long been limited. How then should courts determine whether state and local officials are fulfilling their constitutional obligation?

Brown II candidly said the answers would likely differ depending on the facts of a case. But it did by specifically adopted reasoning from a little-discussed lower court opinion in Delaware strongly suggesting “substantially unequal” disparities in K-12 building infrastructure might alone violate the federal right to equal educational opportunity. In states like Virginia, where the educational system had been illegal, Brown II said the courts must consider ongoing “problems … arising from the physical condition of the school plant.”

It is now 2017. This means the current Richmond school population is the fifth generation of K-12 students since the first Brown decision. The average city school building is considered structurally obsolete by national standards. Indeed, most are sufficiently aged to potential qualify as a “historic structure” under federal law.

Richmond’s problems are not unique. Across America, the average school building is likewise structurally obsolete, although not quite as aged. Experts readily admit the decaying educational infrastructure will not provide the opportunity for the true 21st century education required in today’s economy.

Virginia Tech Professor Emeritus Glen Earthman, a world renowned authority on the subject, along with colleagues has quantified the crisis. Compared to a student of equal ability attending school systems with modern facilities, the youngster forced to go to a school with obsolete facilities loses the statistical equivalent of one year’s learning. This research is known to federal, state and local officials.

As Brown I observed, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied” equal educational opportunity.

Let’s be brutally honest: No federal, state or local elected official can credibly claim the continuing and systemic problems arising from “the phyisical condition of the school plant” here in Richmond are consistent with the Brown decisions.

Moreover, Virginia lacks any state initiatve to assist localities in addressing this intolerable situation, a point I and others have long made.

Richmonder Lewis Powell, the late U.S. Supreme Court justice, wrote in Keys v. Denver, Colo. et al. that a school facility policy leaving African-American residents in obsolete facilities while effectively resulting in white students attending modern facilities might violate the Brown mandates.

“Education is the great equalizer. That’s why they make it so hard to get,” Dr. Martin Luther King Jr. wisely declared.

Brown II gave our leaders time to do their constitutional duty. As a matter of law, educational policy and simple morality, surely over 60 years is far past long enough.



The writer is spearheading a campaign to change the City of Richmond’s charter to address the problem of obsolete school buildings.