Constructive Vagueness Through “At-Risk”

endorsements of schools that target at-risk students, rather than mandates relating to race or provisions permitting single-sex education. I strongly endorse this approach as practically effective and the most constitutionally defensible of the alternatives for status- identifiable schools discussed in this Article.

Unlike schools established pursuant to a deliberate policy of permitting single-sex schools, or schools overwhelming minority as a result of targeted appeals, charter schools for at-risk students would not be predicated upon suspect classifications.620

Thus, these schools would not seem to warrant heightened scrutiny if challenged on equal protection grounds under existing doctrinal conventions, or might es- cape a finding of unlawfulness even if subjected to heightened scru- tiny.621

As such, targeting at-risk populations may be a constructive

620. See, e.g., FLA. STAT. ANN. § 228.056 (6)(c)(2) (West 1998) (allowing charter schools to limit enrollment to target academically at-risk students); 105 ILL. COMP. STAT. ANN. 5/27A-3 (West 1998) (defining an at-risk pupil as one who, “because of physical, emotional, socioeco- nomic, or cultural factors, is less likely to succeed in a conventional . . . environment”); N.Y. EDUC. LAW § 2854(2)(a) (McKinney Supp. 2000) (stating “nothing in this Article shall be con- strued to prevent the establishment of . . . a charter school designed to provide expanded learn- ing opportunities for students at-risk of academic failure”); VA. CODE ANN. § 22.1-212.5(b) (Michie 2000) (defining at-risk populations as having a “physical, emotional, intellectual, socio- economic, or cultural risk factor . . . which . . . negatively influence[s] educational success”).

621. See, e.g., United States v. Paradise, 480 U.S. 149, 171 (1987) (Brennan, J., plurality opinion) (requiring consideration of whether race-neutral means, rather than race-conscious ones, could accomplish a result); Podbereksy v. Kirwan, 38 F.3d 147, 161 (4th Cir. 1994) (allow- ing that racial disparities may be remedied where socioeconomic disparities are implicated); see also Hunt v. Cromartie, 526 U.S. 541, 547 (1999) (applying strict scrutiny only where “race was the ‘predominant factor’ motivating the legislature’s districting decision”); Bush v. Vera, 517 U.S. 952, 958 (1996) (O’Connor, J., plurality opinion) (applying strict scrutiny where plaintiffs prove that “other legitimate principles were ‘subordinated’ to race”) (quoting Miller v. Johnston, 515 U.S. 900, 916 (1995)); Shaw v. Reno, 509 U.S. 630, 642 (1993) (“This Court has

way of providing unique educational opportunities to needy popula- tions in a manner that does not offend either the law or shared com- munity values.

One federal court that has considered an equal protection chal- lenge to such a charter school found that it did not violate the Equal Protection Clause, in part because it found no reason to apply strict scrutiny. In Villanueva v. Carere,622

a federal district court considered an equal protection claim by a group of Hispanic parents that was based on the claim that the establishment of certain charter schools had led to a decline in educational opportunities in their school dis- trict by leading to the closing of two neighborhood schools.623

The dis- trict court found for the defendant school district,624 and the Tenth Circuit affirmed.625

The court of appeals began its review of the plaintiffs-appellants’ claims on the assumption that acts of state legislatures are constitu- tional,626

and stressed the importance of allowing the school district to experiment with innovative approaches to educational reform.627 Ac- knowledging its lack of expertise in educational policy and that no fundamental right or suspect class was implicated in the case,628

the court deferred to the state legislature’s decisionmaking regarding the propriety of charter schools targeted for at-risk students.629 Under these particular circumstances, the Tenth Circuit did not find that the decision to close neighborhood schools was motivated by intentional discrimination.630

Thus, it affirmed the decision below. The Villanueva court’s approach is similar to the kind of pragmatic analysis that I have endorsed in this Article.631

never held that race-conscious state decision-making is impermissible in all circumstances.”). 622. 873 F. Supp. 434, 448 (D. Colo. 1994), aff’d, 85 F.3d 481 (10th Cir. 1996).

623. In addition to their Fourteenth Amendment claim, the parents claimed that these ac- tions violated their rights under Title VI because the closing had a disparate impact on Hispan- ics. The court rejected this claim as well. See id. at 450-51.

624. See id. at 448 (“Encouraging the development of Charter Schools to address the needs of at-risk students does not warrant heightened scrutiny and does not violate the Equal Protec- tion Clause of the United States Constitution.”).

625. See Villanueva v. Carere, 85 F.3d 481, 484 (10th Cir. 1996). 626. See id. at 487.

627. See id. at 487-88. 628. See id. at 488. 629. See id. 630. See id. at 486.

631. Some are less optimistic about the possibility that even a race-neutral action that pro- motes racial diversity is defensible under the Court’s affirmative action precedent. See Chapin Cimino, Comment, Class-Based Preferences in Affirmative Action Programs After Miller v.

To advise legislatures to consider the viability of charter schools for at-risk students is not to suggest that all courts will view such pro- visions as the Villanueva courts did. Under certain circumstances, courts may find that deregulated schools that target at-risk students are subject to heightened scrutiny. Moreover, targeting at-risk popu- lations would not seem a likely substitute for legislatures’ efforts to permit the establishment of single-sex charter schools.

Nevertheless, in those cases where the notion of at-risk students may serve as a proxy for the populations that may be drawn to certain deregulated schools, this designation may be useful. Durham’s Healthy Start Academy632 is a case in point. If North Carolina’s ena- bling legislation contained a provision that permitted the establish- ment of charter schools targeted to at-risk populations, perhaps the school would not be in jeopardy of closure because of the enabling legislation’s racial balance provision. Even if the school were chal- lenged on equal protection grounds, there would seem to be no basis for subjecting the legislation enabling the establishment of the school to heightened scrutiny, thus, the legislature’s actions likely would be found lawful under the rational relation standard of review.

Of course, the situation may be more complicated in jurisdictions with extant desegregation or finance orders. In those cases, courts may be aided in their analyses by the pragmatism-based arguments advanced in Part III.

3. Administrative Accountability. My final recommendation to