Sink or Swim
The Region and Taxation:
School Finance, Cities and the Hope for Regional Reform – Part II
By Myron Orfield
Read Part I here
II. NEW REGIONALISM: GOALS AND (FEW) HOPES
The problems of fragmentation and competition indicate the need for a regional solution. Growing groups of academics, politicians and other thinkers recontributing to a body of scholarship analyzing the problems of metropolitan areas today and proposing solutions. Although there is considerable debate within this loose movement, these new regionalists share some consensus about what needs to be done to counteract competition and end inequity. They also share a common pessimism about the possibility for reform.
A. THE NEW REGIONALIST CONSENSUS ON METROPOLITAN REFORM
For more than a century, the field of local government law has focused mainly on construing city and suburban questions in terms of municipal legal doctrines formulated in the nineteenth century. In the last generation, however, a small group of scholars, known as the new regionalists, have focused on the dimensions and implications of city/suburban competition and the problems caused thereby.73 Within this scholarship is a growing consensus calling for doctrinal reform in three broad areas of the city/suburban relationship. The first area is local government finance, with the goal being to reduce inequality, discourage the detrimental fiscal competition between local governments within a metropolitan region, and remove fiscal barriers to cooperative land use planning. Implied in this is a need to create funds to redevelop older communities in the region. The second area is land use planning with the goal being to maximize limited infrastructure resources, reduce discriminatory barriers to affordable housing, and protect open spaces and the environment through more cooperative land use planning. The third area is regional governance structure, with the goal being to coordinate the needs of regional communities through structural reform.
While members of this new regionalist school agree on the existing problems within regional areas, there has been a sharp debate about the structure of solutions. One school of thought, led by Richard Briffault at Columbia Law School, was framed by two massive and influential articles written by Briffault in 1990. Briffault generally called for increasing the pressure on state government to redistribute equity and create statewide and regional land use planning frameworks. This would level the playing field in terms of taxation and reduce the powers of local governments to exclude outsiders through land use planning.74 Briffault also called for creating stronger regional governments in metropolitan America. Adherents of this reform vision could be called the state power/regional government group.
Another school of thought has been led by Gerald Frug at Harvard Law School. As outlined in his important book, “City Making,” the synthesis of a generation of his legal scholarship, Frug believes that the regional problems noted above can be solved by empowering cities with greater inherent authority so that they can truly compete in the marketplace75 by creating rights of regional citizenship, more permeable municipal boundaries, and by exploring new notions of cross-border rights and responsibilities in what he calls a regional legislature. Frug also explores the ideas of representation and democracy.76
B. THE PESSIMISM OF THE NEW REGIONALISTS
While there has been coherence among new regionalist scholars about objectives, there has been a sense of hopelessness in the law and other fields about making political/legislative progress on regional disparities.77 The schools realize that the legal and cultural foregrounding of local self-interest,78 a tendency to cooperate only on narrow and technical areas,79 and powerful suburban interests80 are formidable barriers to change. Many new regionalist scholars would agree with Donald Norris’s assessment of the possibilities for real equitable change:
My conclusion is decidedly pessimistic. Because of the formidable political factors that hinder its development, the probability of achieving regional governance anywhere in the U.S. in the foreseeable future is very low. At least it is low in the absence of a sustained crisis or crises which would require local governments in a region to cede some of their local autonomy and cooperate in meaningful ways or ways which would require senior levels of government to step in and force some form of regional governance. Clearly, however, history is not very sanguine that such will occur.81
This pessimism is somewhat justified as regional inequity is largely rooted in long-established competition between cities. Cities are, at once, both the most powerful local actors and the most visible ones. In this approach, however, the new regionalism has ignored two very broad initiatives that concern the second fundamental level of the metropolis—school desegregation and fiscal equalization.
Courts have crossed and blurred the boundaries of local government in two very important respects through school desegregation and fiscal equalization. School desegregation efforts represent the nation’s only meaningful attempt to break down the walls of racial segregation. Driven by federal courts and Congress, this effort made a huge difference in terms of integration and opening up life opportunity for a huge number of children of color in this country. Sadly, progress peaked in the mid-1970s when the Milliken case shielded suburban districts from integration, and schools have begun to resegregate since courts allowed dismantlement of long-settled desegregation plans in the mid-1990s.82 The remedies which remain, such as hundreds of millions of dollars of state funds to poor segregated schools, such as Detroit, Kansas City and other districts that could not be integrated with their suburbs (Milliken II funds), have been much less effective in helping promote opportunity and neighborhood stability than desegregative programs like bussing.83
The other major area of activity, the subject of this article, relates to school fiscal equity. Driven by state courts and the formation of legislative coalitions in nearly every state of the union, equity in school funding continues to expand in the nation today. NEO
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IN THE NEXT ISSUE:
Federal equal protection challenges to state finance systems largely started and ended with San Antonio Independent School District v. Rodriquez, 84 a challenge to the Texas school finance system.85 The case, brought on behalf of Mexican-American children from a school district of very low property tax wealth, claimed that the Texas funding system discriminated against the poor and those in poor districts. In the next issue of Municipal Leader, look for the continuation of Orfield’s study “The Region and Taxation,” in Part III: The Development and Effect of Modern School Finance Reform.
{Myron Orfield is an Associate Professor of Law and Director of the Institute on Race & Poverty, University of Minnesota Law School, Non-Resident Senior Fellow, the Brookings Institution.}
73. See generally David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255 (2003); David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487 (1999); Briffault, Our Localism: Part I, supra note 10, at 1; Briffault, Our Localism: Part II, supra note 10; Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115 (1996) [hereinafter Briffault, Boundary Problem]; Sheryll D. Cashin, Civil Rights in the New Decade: The Geography of Opportunity, 31 CUMB. L. REV. 467 (2001); Cashin, supra note 10; Gerald E. Frug, Beyond Regional Government, 115 HARV. L. REV 1763 (2002); Gerald E. Frug, supra note 10; Gerald E. Frug, The City as Legal Concept, 93 HARV. L. REV. 1057 (1980); Ford, supra note 10; Richard Thompson Ford, Beyond Borders: A Partial Response to Richard Briffault, 48 STAN. L. REV. 1 1173 (1995-96); Reynolds, supra note 10.
74. Followers of the school of thought led by Richard Briffault include Cheryl Cashin and Laurie Reynolds.
75. Followers of the school of thought led by Gerald Frug include David Barron and Richard Ford.
76. See Myron Orfield, Comment on Scott Bollen’s “In Through the Back Door: Social Equity and Regional Governance,” 13 HOUS. POL’Y DEBATE 659 (2002).
77. See DOWNS, supra note 10, at 195 (“odds are against” coalition forming to adopt equitable metropolitan growth strategies); Scott A. Bollens, In Through the Back Door: Social Equity and Regional Governance, 13 HOUS. POL’Y DEBATE 659 (2002) (most equity policies nowadays “likely insufficient” in absence of comprehensive, locally determined agenda); Briffault, Boundary Problem, supra note 73, at 1171 (claiming “[t]here is little reason to be optimistic about the prospects for metropolitan governance.”); Harold Wolman et al., Cities and State Legislatures: Changing Coalitions and the Metropolitan Agenda 35 (Geo. Wash. Inst. Of Pub. Pol’y, Working Paper No. 3, 2003), available at http://www.gwu.edu/~gwipp/papers/wp003 (though transportation is a good area for city-suburban cooperation, “[m]ore redistributive policies . . . face much greater difficulties in attracting supporters.”). Cf. Cashin, supra note 10, at 2048 (noting “only mild[] optimis[m]” of author regarding the possibility of an equitable regionalism.).
78. Donald F. Norris, Prospects for Regional Governance Under the New Regionalism: Economic Imperatives Versus Political Impediments, 23 J. URBAN AFF. 557, 562-63 (2001); see also Reynolds, supra note 10, at 131.
79. Scott A. Bollens, Concentrated Poverty and Metropolitan Equity Strategies, 8 STAN. L. & POL’Y REV. 11, 13 (1997); Briffault, Our Localism: Part II, supra note 10, at 376; Reynolds, supra note 10, at 137, 144-45.
80. Norris, supra note 78, at 564-65.
81. Id. at 569.
82. See Freeman v. Pitts, 503 U.S. 467 (1992); Bd. of Educ. of Okla. City v. Dowell, 498 U.S. 237 (1991).
83. See generally Institute on Race & Poverty, Minority Subordination, Stable Integration, and Economic Opportunity in Fifteen Metropolitan Regions (March, 2006)
84. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
85. Id. at 4-5.
