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Monopolizing Whiteness Contents MONOPOLIZING WHITENESS Erika K. Wilson CONTENTS INTRODUCTION .......................................................................................................................... 2384 I. WHITE-STUDENT SEGREGATION AND SOCIAL CLOSURE .......................................... 2388 A. Defining Social Closure ................................................................................................. 2390 B. Social Closure and Racial Segregation in Public Schools: Monopolies ................. 2392 1. Scarcity ....................................................................................................................... 2393 2. Exclusion .................................................................................................................... 2396 3. Monopolization .......................................................................................................... 2400 C. The Normative Case for Regulating White-Student Segregation ............................. 2404 1. Harms to Democracy ................................................................................................ 2404 2. Public Policy Rationale ............................................................................................ 2407 D. The Limits of Equal Protection Doctrine in Regulating White-Student Segregation and Monopolization ........................................................................................................ 2409 II. AN ALTERNATIVE FRAMEWORK: USING ANTITRUST TO RESPOND TO WHITE- STUDENT SEGREGATION AND MONOPOLIZATION................................................... 2414 A. The Efficacy of an Antitrust Analogy .......................................................................... 2415 B. The Essential Facilities Doctrine ................................................................................ 2416 C. High-Quality Public Schools as Infrastructure .......................................................... 2421 III. ANALYZING WHITE-STUDENT SEGREGATION THROUGH AN ESSENTIAL FACILITIES FRAMEWORK ................................................................................................ 2423 A. School District Boundary Lines: The New “Whites Only” Signs ........................... 2424 1. School Districts as Impermeable Borders: Detroit and Grosse Pointe, Michigan ..................................................................................................................... 2426 2. Municipal Secessions: Jefferson County, Alabama ................................................ 2428 3. Consolidations: Spackenkill and Poughkeepsie, New York .................................. 2430 B. Essential Facilities Framework Applied to White Island Districts ........................ 2432 1. Monopolists Controlling Access to an Essential Facility ..................................... 2434 2. The Feasibility of Duplicating High-Quality Schools .......................................... 2436 3. Anticompetitive Conduct .......................................................................................... 2439 C. Doctrinal Advantages of Applying an Essential Facilities Framework .................. 2440 D. Responding to the Limitations and Critiques of Applying an Essential Facilities Framework ....................................................................................................................... 2443 CONCLUSION ............................................................................................................................... 2447 2382 MONOPOLIZING WHITENESS Erika K. Wilson∗ In racially diverse metropolitan areas throughout the country, school district boundary lines create impermeable borders, separating affluent and predominantly white school districts from low-income, predominantly nonwhite school districts. The existence of predominantly white and affluent school districts in racially diverse metropolitan areas has material consequences and symbolic meaning. Materially, such districts receive greater educational inputs such as higher per-pupil spending, higher teacher quality, and newer facilities than their neighboring more racially diverse districts. Symbolically, owing to the material and status-based value attached to whiteness, the districts are also viewed as elite, which creates a magnetic effect that draws white affluent families. Despite the material consequences and symbolic meaning of maintaining predominantly white school districts, a limited amount of scholarship addresses racial segregation in schools from the vantage point of white students. This Article fills that void in the school-desegregation legal literature. It analyzes white-student segregation through a sociological framework called social closure, a process of subordination whereby one group monopolizes advantages by closing off opportunities to other groups. This Article argues that the laws surrounding school district boundary lines enable white students in racially diverse metropolitan areas to engage in social closure and to monopolize high-quality schools. This Article further suggests that equal protection doctrine, the doctrine traditionally used to address racial segregation in schools, cannot capture the monopolization harms caused by white-student segregation. Therefore, it looks to antitrust law for guidance. It demonstrates how principles from antitrust’s essential facilities doctrine can help conceptualize and remedy the monopolization harms caused by white-student segregation in racially diverse metropolitan areas. [W]hites do not see or interpret their own racial segregation and isolation as a racial issue at all. — Eduardo Bonilla-Silva1 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Wade Edwards Distinguished Scholar, Thomas Willis Lambeth Distinguished Chair in Public Policy, Associate Professor of Law, University of North Carolina at Chapel Hill. I am thankful to Ifeoma Ajunwa, Khaled Beydoun, Derek Black, Andrew Chin, John Coyle, Brant Lee, Stacy Hawkins, Osamudia James, and Audrey McFarlane for their helpful comments on earlier drafts. I also appreciate comments received from participants at faculty workshops at the American University Washington College of Law, LatCrit 2019 Georgia State University College of Law, Lutie Lytle Workshop at SMU Dedman School of Law, NYU School of Law Clinical Writers Workshop, NYU Stephen Ellman Clinical Theory Workshop, University of Maryland Francis King Carey School of Law, Tulane School of Law, the University of Baltimore School of Law, the University of Arkansas School of Law, and the University of South Carolina School of Law. A special thanks to Drew Bencie, Chennell Coleman, Jonathan Dickerson, Julia Leopold, and Brendan Morrissey for providing invaluable research assistance, and to my husband Tariq Wilson and my son Malcolm Xavier Wilson for their unending patience and support. 1 EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLORBLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES 133 (5th ed. 2018). 2383 2384 HARVARD LAW REVIEW [Vol. 134:1 INTRODUCTION In pockets of racially diverse metropolitan areas across the country, white students are geographically separated from nonwhite students, walled off not just in racially homogenous individual schools but within entire school districts.2 The City of Mountain Brook, Alabama, a sub- urb of Birmingham, provides an illustrative example. Fewer than five miles separate Birmingham and Mountain Brook.3 Yet the Mountain Brook school district is 96% white,4 while the neighboring Birmingham City school district is around 70% Black.5 Most of the students in the Birmingham City school district are classified as low income with 65% of them qualifying for free and reduced lunch.6 In the Mountain Brook school district, fewer than 1% of the students qualify for free and re- duced lunch.7 The dissonance between the racial and socioeconomic makeup of the Birmingham and Mountain Brook school districts is not an anomaly. Similar disparities exist between neighboring school dis- tricts throughout the country.8 Historical and continued patterns of racial discrimination result in money, social capital, and access to power being aligned in favor of those raced as white.9 Consequently, the clustering of whites together in pub- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 2 See Myron Orfield, Milliken, Meredith, and Metropolitan Segregation, 62 UCLA L. REV. 364, 433–36 (2015) (describing how patterns of white flight in racially diverse metropolitan areas lead to predominantly white school districts in racially diverse metropolitan areas). 3 Distance Between Birmingham, Alabama and Mountain Brook, Alabama, GOOGLE MAPS, https://goo.gl/maps/T8iY4wk8tgFTcyaW8 [https://perma.cc/JU43-LYJW] (right click on “Birmingham”; then click “Measure distance”; then click on “Mountain Brook”). 4 Mountain Brook School District, AL, NAT’L CTR. FOR EDUC. STAT., https://nces.ed.gov/ Programs/Edge/ACSDashboard/0102490 [https://perma.cc/8NAS-KUUT]. 5 Birmingham City School District, AL, NAT’L CTR. FOR EDUC. STAT., https://nces.ed.gov/ Programs/Edge/ACSDashboard/0100390 [https://perma.cc/L5DV-U947]. 6 Fall Free Lunch: 2018–2019, ALA. STATE DEP’T OF EDUC., https://www.alsde.edu/ dept/data/Pages/freelunch-all.aspx [https://perma.cc/54TQ-ATHJ] (select “2018–2019”; then select “2018-2019 Fall Free Lunch (by System-School)”) (displaying free and reduced lunch data for Birmingham City). 7 Id. 8 See generally JAMES E. RYAN, FIVE MILES AWAY, A WORLD APART: ONE CITY, TWO
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