Disability Rights Archives - Columbia Law Review

INTRODUCTION Imagine four children all living within the boundaries of or in proximity to Hidden Heights, a predominately White,[footnote]I choose to capitalize “White” when referring to the racial group. See LaToya Baldwin Clark, Stealing Education, 68 UCLA L. Rev. 566, 568 n.1 (2021) [hereinafter Baldwin Clark, Stealing] (“I believe that capitalizing ‘Black,’ . . . without also capitalizing ‘White’ normalizes Whiteness, while the proper noun usage of the word forces an understanding of ‘White’ as a social and political construct and social identity in line with the social and political construct and social identity of ‘Black.’”).[/footnote] well-resourced school district sitting in a White, well-resourced municipality.[footnote]By focusing on a predominately White, well-resourced school district, I do not mean to make a normative claim that such schools are “better” than others. My claim is only that it is these school districts where claims to educational property may be most contested.[/footnote] Students in Hidden Heights have access to many resources that characterize educational property, including a curriculum that builds their skills, cultural resources that prepare them for middle-class and affluent social life, and resources derived from well-connected social networks.[footnote]See LaToya Baldwin Clark, Education as Property, 105 Va. L. Rev. 397, 401 (2019) [hereinafter Baldwin Clark, Property] (“Children need access to social and cultural capital, resources not easily monetized but that educational researchers have shown are integral to success in the modern workplace.” (footnotes omitted)).[/footnote] In this community and others like it, community members treat education as private property, a scarce resource deserving of protection like other forms of property. Because education is regarded as property, the community will encourage school officials to make it available only to those who deserve it (i.e., pay for it in property taxes and rent) and unavailable to all others without similar entitlements. Our first child is Amanda, a White, middle-class girl who is typical of what school attendance laws consider a “bona fide resident.”[footnote]See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 49 (1973) (holding that schools can restrict education to only bona fide residents).[/footnote] Amanda lives within the Hidden Heights boundaries with her archetypical family, including two parents, in a house they own.[footnote]Most White children live in two-parent households, compared to less than 40% of Black children. See Paul Hemez & Chanell Washington, Number of Children Living Only With Their Mothers Has Doubled in Past 50 Years, Census Bureau (Apr. 12, 2021), https://www.census.gov/library/stories/2021/04/number-of-children-living-only-with-their-mothers-has-doubled-in-past-50-years.html [https://perma.cc/Z572-GJNM]. Middle-class children are much more likely to live with two married parents than relatively poorer children. See Richard V. Reeves & Christopher Pulliam, Middle Class Marriage Is Declining, and Likely Deepening Inequality, Brookings Inst. (Mar. 11, 2020), https://www.brookings.edu/research/middle-class-marriage-is-declining-and-likely-deepening-inequality/ [https://perma.cc/6QT2-VZGS].[/footnote] She is the prototypical student for school attendance; because she is a bona fide resident, the district cannot exclude her from its schools[footnote]See Baldwin Clark, Stealing, supra note 1, at 590 n.105 (listing state statutes from thirty-three states that require districts to prioritize residents for enrollment); id. at 570 (“Only residence within a school district’s jurisdiction confers on a parent a ‘seat license’ unavailable to nonresident parents.”).[/footnote] and may be obliged to protect her educational property by excluding others.[footnote]See generally Baldwin Clark, Property, supra note 3, at 410 (describing how “officials treat education as property by allowing taxpayers to lawfully exclude others, particularly through the coercive machinery of civil and criminal penalties” (emphasis omitted)).[/footnote] In other words, bona fide residents enjoy the right not to be excluded and the privilege of protection through the exclusion of others. Our second child is Monica, a girl from a Black, working-class family who lives during the school week with her grandmother.[footnote]See LaToya Baldwin Clark, Family | Home | School, 117 Nw. U. L. Rev. 1, 29 (2022) [hereinafter Baldwin Clark, Family] (explaining how Black children are more likely than White children to be cared for through extended kin relationships, making it a common family form among Black families).[/footnote] While her grandmother is a bona fide resident within the Hidden Heights boundaries, Monica may not be, despite her presence in the district on school days. School attendance laws tend to reject living situations like Monica’s as indicative of bona fide residence, partly because most states require that a child’s address for school attendance be that of their parents or guardians, regardless of the child’s actual living situation.[footnote]Id. at 14; see also id. at 9–19 (describing “the three components of school residency laws [that determine bona fide residency]: from whom a child’s address derives, where a child can call an address a ‘home,’ and inquiries into why the caregiving adult established that address”).[/footnote] If she is not found to be a bona fide resident, Hidden Heights can exclude her. Our third child is Malcolm, a Black boy from a low-income family, who lives with his parents right outside the Hidden Heights boundaries in a community not as affluent, or as White, as Hidden Heights. Unlike Amanda and (arguably) Monica, he is not a bona fide resident, and Hidden Heights has no obligation to educate him. But Hidden Heights schools are among the best, and his parents want him to attend its schools. Because they are not residents, their (legitimate) options are few.[footnote]Some parents take the step of falsifying an address to afford a nonresident child an education in a district in which a child does not live. In previous work, I referred to this as “stealing” education. See generally Baldwin Clark, Stealing, supra note 1 (describing how some nonresident children attend schools by “stealing,” or lying about their address to access school).[/footnote] His parents’ best option is to have Malcolm participate in an interdistrict transfer program[footnote]See Micah Ann Wixom, Educ. Comm’n of the States, Open Enrollment 1 (2019), https://www.ecs.org/wp-content/uploads/Open-Enrollment.pdf [https://perma.cc/9EXD-L2M3] (describing differences in open enrollment statutes for various states).[/footnote] that breaks the tight connection between school attendance and residence. Available in most states, these programs allow students who do not live inside a district’s boundaries to attend that school district’s schools.[footnote]Id.[/footnote] But his continued attendance is conditional and relies on considerations not applicable to resident students including academic and behavioral standards. Unlike bona fide resident children, Malcolm does not enjoy the unconditional right not to be excluded. Our fourth child is Kyle, a middle-class Black boy with a disability who is a Hidden Heights bona fide resident. Like Amanda, his claim should be the most secure, and in some ways, it is. Before the mid-1970s, Kyle may not have had a right to attend school, even as a bona fide resident.[footnote]See, e.g., Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400(c)(2) (2018) (explaining how prior to 1975, many children with disabilities were “excluded entirely from the public school system”).[/footnote] Today, federal law requires public schools to educate and accommodate children with disabilities.[footnote]Id. § 1412(a)(1) (requiring school districts to provide every child with a disability a free appropriate public education).[/footnote] But like many children with disabilities deemed incompatible with the general education classroom, Kyle spends much of his day in a segregated classroom, away from children who do not live with a disability.[footnote]Approximately one-third of students with disabilities spend less than 80% of their school day in a general education classroom. Specifically, [a]mong all school-age students served under IDEA, the percentage who spent 80 percent or more of their time in general classes in regular schools increased from 59 percent in fall 2009 to 66 percent in fall 2020. In contrast, during the same period, the percentage of students who spent 40 to 79 percent of the school day in general classes decreased from 21 to 17 percent, and the percentage of students who spent less than 40 percent of their time in general classes decreased from 15 to 13 percent. Nat’l Ctr. for Educ. Stat., Students with Disabilities, The Condition of Education 2022, https://nces.ed.gov/programs/coe/indicator/cgg [https://perma.cc/56UA-C55U] (last updated May 2022).[/footnote] Although every child with a disability is entitled to a free appropriate public education in the district in which they reside, the setting of that education need not be in the general education classroom, but only in the “least restrictive environment.”[footnote]IDEA’s LRE mandate requires that schools, [t]o the maximum extent appropriate, [ensure that] children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. § 1412(5)(A).[/footnote] As a result, he has little access to the general education curriculum and social experiences with general education students. Amanda, Monica, Malcolm, and Kyle all have claims to enjoy the Hidden Heights educational property. Still, the bases for their claims, the possibility of success when those claims are challenged, and the overall security of their claims differ. Amanda’s claim to education is one of unconditional ownership, access, and benefits available to her if she remains a bona fide resident. Monica’s claim to the educational property is more tenuous than Amanda’s, even though she lives in the same area during the days she attends school. Because Monica does not live within the district’s boundaries 24/7, her family must jump through evidentiary hoops Amanda’s family avoids, proving that Hidden Heights is her true “home” to continue to attend school.[footnote]See infra Part I.[/footnote] While Malcolm has access to the educational property when he receives permission to attend, his continued access as a nonresident is contingent; Hidden Heights decides the conditions under which it accepts nonresident students and can condition continuing attendance on academics and discipline.[footnote]See infra Part II (explaining how many districts impose academic and behavioral requirements on nonresident students as a condition of continued attendance).[/footnote] Lastly, Kyle should be most secure in non-excludability, as both a bona fide resident and a child with a disability who has a statutory right to be educated in the district in which he resides. But his access to the educational property, the resources contained in the school’s walls, is limited; schools may use his disability label as a justification for his segregation, especially because he is a Black boy.[footnote]See infra Part II.[/footnote] These children’s experiences, where they all have a legal claim to the educational property amassed in this district, complicate the story about education, property, and access. Legal entitlement or permission to attend school does not mean that one can fully benefit from a district’s educational property. This Essay suggests that the differences in these children’s claims to Hidden Heights educational property are not only about who cannot be excluded and who must be included. Instead, the children’s stories illustrate relational positions in the space of the Hidden Heights school district and the extent to which law, policies, and practices support their claims. The students’ access to educational property rises and falls on whether they “belong.” A focus on belonging encourages us to see property claims as relational and spatial.[footnote]See infra Part III.[/footnote] Instead of focusing on the Subject and Object of property (“who” owns “what”), belonging attends to the Space in which property claims are asserted and the organizational and structural practices that support and legitimate, or undermine and delegitimate, those claims. Accessing educational property is not solely about the individual attributes of students making a claim, but also about the law, policies, and practices that define the space and render determinations about whose claims are legitimate—thus deserving of protection—and whose claims are not. The degree of a child’s belonging depends not only on the legal right to ownership or access but also on the social processes, structures, and networks that support those claims. We can harmonize Amanda’s, Monica’s, Malcolm’s, and Kyle’s seemingly divergent experiences by considering the extent to which the children belong. Of course, residence plays an essential role in school attendance and access to educational property. Bona fide resident children are the privileged class with the most substantial claim not to be excluded. As argued below, Amanda is the ideal against which all the other children are judged. This Essay proceeds as follows: Part I describes the conventional test for who gets to access a district’s educational property. That test rises and falls on residency; thus, this Part focuses on Amanda’s and Monica’s disparate experiences in establishing bona fide residency, relating to family form and living arrangements. Part II describes circumstances in which nonresidents like Malcolm and bona fide resident children with disabilities like Kyle overcome exclusion to develop an inclusive right to educational property. Yet they experience that access very differently from prototypical Amanda. Finally, Part III suggests how focusing on property as belonging complicates the story of education as property with the central characteristic of exclusion. To belong, the students need to show that not only do they (1) have a legal claim but also that (2) they are genuine members of the group that deserves the property and (3) the law, policies, and practices of the space support those claims. To conclude, this Essay suggests that thinking about access to educational property through the lens of belonging is particularly salient in the school context, in which belonging has long been considered critical to student academic and social success.