If we want to desegregate American schools, we have to start talking about white people, a legal scholar argues.

The prevailing narrative of public-school segregation centers on the harm to students of color while erasing the white families who perpetuate segregation — an elision that the Harvard Law Review article says undermines desegregation efforts and thus undermines a democratic society.

In the paper, published May 10, Erika K. Wilson lays out an unusual way of thinking about school segregation, which is widespread in the U.S. and remains legal in many respects. Wilson, an associate professor at the University of North Carolina at Chapel Hill's School of Law, suggests litigating or reforming laws through the lens of antitrust law — viewing white monopolies of schools as anti-competitive behavior. 

"The reason I wanted to look to antitrust is I felt like the language in the traditional legal doctrines that we look at — namely, equal protection, 14th Amendment claims — didn't adequately capture what was happening when we look at the problems of racial segregation and economic segregation in schools," said Wilson, who is the law school's Thomas Willis Lambeth Distinguished Chair in Public Policy.

White families and white students are effectively "resource hoarding, opportunity hoarding," Wilson said, keeping social and financial capital among themselves. "From that perspective, an equal protection framework — not only is it not going to be a viable way to state a legal claim for relief, but it's not even a viable way to frame the problem of what's happening."

Because the landmark case Brown v. Board of Education was decided on 14th Amendment grounds, "That lens has forever framed the way we looked at the problem of racial segregation in schools," Wilson said. Among legal scholars and in normative discourse, she said, the focus is always on whether the state is intentionally depriving students of color.

That wasn't always litigators' plan. In Brown v. Board of Education, the attorneys for the plaintiffs presented the U.S. Supreme Court with social sciences evidence of the harm that school segregation causes to both white and Black students. They outlined how segregation makes white people develop feelings of guilt and makes them rationalize their prejudice; how it can cause white people to be morally confused and idealize authority figures; and how it makes them more hostile toward people of color. These outcomes for white people are not only bad for individuals but also harmful to a multiracial democratic society. 

Still, the 1954 ruling said that segregation was unconstitutional because of the psychological damage to Black students and said nothing about the harm to white students. 

Later, in the Detroit public-school case Milliken v. Bradley, the Supreme Court further clarified what kind of segregation was allowed under the Constitution: De jure segregation was clearly against the law under the 14th Amendment and in Brown v. Board of Education, but de facto segregation was unconstitutional only if it was done by the state with the explicit intent of racial segregation. De facto segregation was not unconstitutional if segregation was the outcome of "race-neutral" policy, such as allowing only children from a white-supermajority neighborhood to attend the local white-supermajority school. This 1974 ruling, as Justice Thurgood Marshall predicted in his dissent, created a high bar for fighting school segregation and left a wide channel for white families to silo themselves and school resources from Black children and other children of color.

Thus, the equal protection argument leaves out segregation that occurs because white parents collectively make decisions to shut out students of color from predominantly white schools. 

"If there's not very direct and specific forms of state action that cause the racial segregation, then we basically throw our hands up and say, 'Nothing to see here — nothing to be done,'" Wilson said.

However, antitrust law provides a different way of viewing harm. "One of the few places in antitrust doctrine where they do recognize some duty to share [is] when they're talking about an essential facility," Wilson said. "The more I learned about the essential-facilities doctrine, the more I realized that schools are an essential facility. We don't think of it like that, but if you recognize schools as an essential facility, then the monopolization harms become even more injurious." 

Wilson gave the example of United States v. Terminal Railroad Association of St. Louis, a case involving one company's attempt to control both bridges and all riverside facilities trains could use in St. Louis. Because the bridges and the riverside were essential to trains in St. Louis, total control of them amounted to anti-competitive behavior and a violation of the Sherman Act — competing railroad services needed access to the infrastructure. 

Likewise, if schools monopolized by white families are considered an essential facility — a nonreplicable facility controlled by the monopolists who deny access to competitors when it is feasible to grant access — then it is clear that the harm is not just to students of color, especially Black students, but to the general public. 

Furthermore, white students tend to go to the most segregated public schools in racially diverse metropolitan areas; the average white public-school student in 2016 attended a school with 69% white peers. Wilson pointed out that when white students are deprived of meaningful relationships with people of color, that harms white students. That lack of interracial interaction can cause, among other problems, poor functioning in a multiracial society; it allows an environment where white people can more easily develop racist ideas, which dehumanizes both people of color and white people; and, as political scientist Larry M. Bartels wrote in the Proceedings of the National Academy of Sciences, expectations of racial hierarchy can lead white people to intentionally undermine democracy if it appears that democracy will undo white supremacy.

Seeing both sides of the coin — not only the harm to students of color but also the harm to white students and the role that white people play in maintaining segregation — can help lawmakers and litigators rethink how to begin to dismantle school segregation. "The more we can understand that our fates are intertwined," Wilson said, "the better off we all are."

The paper,"Monopolizing whiteness," published May 10 in the Harvard Law Review, was authored by Erika K. Wilson, University of North Carolina at Chapel Hill.